United States v. Frater

• Decision Date: 09 February 2012
• Docket Number: No. 02-40153-01-SAC,No. 11-4058-SAC,02-40153-01-SAC,11-4058-SAC
• Parties: UNITED STATES OF AMERICA, Respondent/Plaintiff, v. KEVIN X. FRATER, Movant/Defendant.
• Court: U.S. District Court — District of Kansas

UNITED STATES OF AMERICA, Respondent/Plaintiff,
v.
KEVIN X. FRATER, Movant/Defendant.

No. 02-40153-01-SAC
No. 11-4058-SAC

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

Dated: February 9, 2012

MEMORANDUM AND ORDER

With information supplied by drug task force agents in Burbank, California, agents in Kansas with the Drug Enforcement Agency ("DEA") conducted an interdiction of a medium-sized business jet flying from California to New York that had made a refueling stop in Salina, Kansas, on December 10, 2002. Agents found one passenger, Austin Williams, with five large suitcases that contained 155 packages of cocaine each weighing approximately one kilogram. Williams worked for Kevin Frater as a first officer and a customer services agent escorting luggage on a number of flights between New York and California. Upon his arrest, Williams cooperated with agents in making a series of controlled phone calls to Frater telling him the plane was having mechanical problems and attempting to lure Frater to Salina. The next day, Frater booked a flight to Salina arranging for Damian Coverley and Charles Bowe to accompany him, but

Page 2

Frater later "cancelled the flight telling Coverley and Bowe that something was wrong and that it wasn't worth it." (Presentence Report, ¶ 26).

On December 11, 2002, the grand jury returned a sealed indictment charging Kevin Frater and Austin Williams with conspiracy to distribute cocaine, and an arrest warrant was issued for Frater on December 13, 2002. In January of 2003, a sealed superseding indictment was returned charging Frater and Williams with conspiracy to distribute at least 153.4 kilograms of cocaine and Williams with a second count of possession with intent to distribute 153.4 kilograms of cocaine. The arrest warrant for Frater issued on January 29, 2003. In April of 2009, Frater was detained in Heathrow Airport during a return trip from Jamaica to Dubai, arrested and taken into custody in London, England, then extradited to the United States, and arraigned in this court on September 1, 2009. (Dk. 103).

On March 23, 2010, Frater entered a guilty plea to count one of the superseding indictment pursuant to Fed. R. Crim. P. 11(c)(1)(C) with an agreed 120-month sentence. (Dks. 174 and 175 at p. 12). The court sentenced the defendant Frater to 120 months of incarceration on June 16, 2010, and Frater did not file a direct appeal but did file a timely motion to vacate under 28 U.S.C. § 2255 on June 13, 2011. (Dk. 185).

ISSUES FOR § 2255 RELIEF

Frater articulates four grounds for relief: (1) denial of due

Page 3

process for delaying execution of arrest warrant from January 29, 2003, through April 7, 2009; (2) violation of his constitutional right to a speedy trial; and (3) ineffective assistance of counsel in not investigating the evidence, in not challenging constitutional violations as requested by the defendant, and in not explaining the meaning and consequences of plea agreement.

GENERAL § 2255 STANDARDS

A district court may grant relief under § 2255 if it determines "that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack." 28 U.S.C. § 2255. "Review under § 2255 is not an alternative to appellate review for claims that could have been presented on direct appeal but were not." United States v. Magleby, 420 F.3d 1136, 1139 (10th Cir. 2005), cert. denied, 547 U.S. 1097 (2006). A movant may overcome this procedural bar by showing either of "two well recognized exceptions." United States v. Cervini, 379 F.3d 987, 990 (10th Cir. 2004), cert. denied, 544 U.S. 904 (2005). First, the movant must show good cause for not raising the issue earlier and actual prejudice to the movant's defense if the issue is not considered. Id. Cause may "be established by showing that counsel

Page 4

rendered constitutionally ineffective assistance." United States v. Wiseman, 297 F.3d 975, 979 (10th Cir. 2002) (citations omitted). Second, the "'failure to consider the federal claims will result in a fundamental miscarriage of justice.'" Cervini, 379 F.3d at 990 (quoting Coleman v. Thompson, 501 U.S. 722, 750 (1991)).

The court is to hold an evidentiary hearing "unless the [§ 2255] motion and files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255; United States v. Galloway, 56 F.3d 1239, 1240 n. 1 (10th Cir. 1995). The defendant has the burden to allege facts that would entitle him or her to relief upon proof. See Hatch v. Oklahoma, 58 F.3d 1447, 1471 (10th Cir. 1995), cert. denied, 517 U.S. 1235 (1996), partial overruling on other grounds, Daniels v. United States, 254 F.3d 1180, 1188 n.1 (10th Cir. 2001). "[T]he allegations must be specific and particularized, not general or conclusory." Id. The court may forego an evidentiary hearing if the movant's factual allegations are "contradicted by the record, inherently incredible, or when they are conclusions rather than statements of fact." United States v. Caraway, 2010 WL 3721689 at *2 (D. Kan. Sept. 15, 2010) (citing Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999)), cert. of appealability denied, 417 Fed. Appx. 828 (10th Cir.), cert. denied, 132 S. Ct. 565 (2011); see also United States v. Fisher, 38 F.3d 1144, 1147 (10th Cir. 1994) ("rejecting

Page 5

ineffective assistance of counsel claims which are merely conclusory in nature and without supporting factual averments")). Simply put, without a colorable showing of entitlement to relief, the district court does not abuse its discretion in denying an evidentiary hearing. See Hooks v. Workman, 606 F.3d 715, 731 (10th Cir. 2010). A hearing is unnecessary here, for the record in this case fully confirms the reasons and grounds establishing that the defendant is not entitled to relief on his claims.

The Sixth Amendment guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defense." U.S. Const. Amend. VI; Kansas v. Ventris, 556 U.S. 586, 129 S.Ct. 1841, 1844 (2009). To prevail on a claim of ineffective assistance of counsel, the defendant must prove two prongs: first, "that his 'counsel's representation fell below an objective standard of reasonableness,' Strickland v. Washington, 466 U.S. 668, 688 (1984)," and second, "'that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different,' id. at 694." United States v. Taylor, 454 F.3d 1075, 1079 (10th Cir. 2005). "[T]here is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one." Strickland v. Washington, 466 U.S. at 697.

On the first prong of objective reasonableness, a court may not

Page 6

find a constitutional deficiency unless defense counsel's performance is "completely unreasonable, not merely wrong." Boyd v. Ward, 179 F.3d 904, 914 (10th Cir. 1999), cert. denied, 528 U.S. 1167 (2000). Proof must show the counsel's conduct was not "within the wide range of competence demanded of attorneys in criminal cases." United States v. Blackwell, 127 F.3d 947, 955 (10th Cir. 1997) (quotation and citations omitted). A court is highly deferential in its review of the attorney's performance. Strickland, 466 U.S. at 689. The court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Strickland, 466 U.S. at 689; see United States v. Holder, 410 F.3d 651, 654 (10th Cir. 2005). "The reasonableness of counsel's performance is to be evaluated from counsel's perspective at the time of the alleged error and in light of all the circumstances." Kimmelman v. Morrison, 477 U.S. 365, 281 (1986).

The movant's burden here on the second prong of prejudice is to show that but for counsel's constitutionally ineffective performance there was "a reasonable probability the jury would have had reasonable doubt regarding guilt." Boyd v. Ward, 179 F.3d at 914 (citing Strickland, 466 U.S. at 694). "A reasonable probability is a probability sufficient to undermine

Page 7

confidence in the outcome." Strickland, 466 U.S. at 694. Prejudice is assessed from reviewing "the totality of the evidence, not just the evidence helpful to" the movant. Boyd v. Ward, 179 F.3d at 914 (citing Cooks v. Ward, 165 F.3d 1283, 1293 (10th Cir. 1998), cert. denied, 528 U.S. 834 (1999)). In order to show prejudice, the defendant must establish a reasonable probability that the result or outcome of the proceeding would have been different had his counsel filed the motion to dismiss for a violation of his speedy trial rights. See United States v. Rushin, 642 F.3d 1299, 1309-10 (10th Cir.2011).

"Before deciding whether to plead guilty, a defendant is entitled to the effective assistance of competent counsel." Padilla v. Ky., --- U.S. ----, 130 S.Ct. 1473, 1480-81 (2010) (quotation omitted). Effective performance in this context requires "counsel's informed opinion as to what pleas should be entered." United States v. Carter, 130 F.3d 1432, 1442 (10th Cir. 1997), cert. denied, 523 U.S. 1144 (1998). "In the...