United States v. Kilpatrick
| Decision Date | 19 March 2019 |
| Docket Number | Case No. 10-20403 |
| Parties | UNITED STATES OF AMERICA, Plaintiff-Respondent, v. KWAME M. KILPATRICK (D-1), Defendant-Petitioner. |
| Court | U.S. District Court — Eastern District of Michigan |
Honorable Nancy G. Edmunds
ORDER DENYING PETITIONER'S MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE [599]
On March 11, 2013, a jury found Defendant-Petitioner Kwame Kilpatrick guilty of twenty-four of the thirty counts brought against him: one count of RICO conspiracy, 18 U.S.C. § 1962(d); four counts of extortion, 18 U.S.C. § 1951; one count of attempted extortion, 18 U.S.C. § 1951; one count of bribery, 18 U.S.C. § 666(a); eleven counts of mail and wire fraud, 18 U.S.C. §§ 1341, 1343; five counts of subscribing a false tax return, 26 U.S.C. § 7206(a); and one count of income tax evasion, 26 U.S.C. § 7201. (Dkt. 277.) The Court sentenced Defendant to be imprisoned for a term of 336 months. (Dkt. 516.) The Sixth Circuit affirmed Defendant's convictions, see United States v. Kilpatrick, 798 F.3d 365, 372 (6th Cir. 2015),1 and the Supreme Court denied hispetition for a writ of certiorari, (dkt. 577). Defendant timely filed this pro se motion to vacate his sentence under 28 U.S.C. § 2255. (Dkts. 599, 601, 605, 610.)2 The Government has filed a response, (dkts. 613, 626), and Defendant has filed a reply as well as a number of briefs and exhibits, (dkts. 620, 621, 622, 623, 628, 629, 630, 631, 632, 633, 638). For the reasons set forth below, the Court DENIES Defendant's § 2255 motion.
Under 28 U.S.C. § 2255, "[a] prisoner in custody under sentence of a [federal] court . . . claiming the right to be released . . . may move the court which imposed the sentence to vacate, set aside or correct the sentence." To prevail on a § 2255 motion, the petitioner must allege: "(1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law that was so fundamental as to render the entire proceeding invalid." Mallett v. United States, 334 F.3d 491, 496-97 (6th Cir. 2003); see also Anderson v. United States, 246 F. Supp. 2d 758, 760 (E.D. Mich. 2003).
Defendant argues that the Court should vacate his sentence on the basis of incorrect jury instructions under McDonnell v. United States, 136 S. Ct. 2355 (2016), the violation of his Sixth Amendment right to counsel, impermissible hearsay infringing on his Sixth Amendment right to confrontation, an error in his sentencing guidelines calculation, and the lack of an Allen charge.
The Court first notes that Defendant procedurally defaulted most of his claims by not raising them on direct appeal. "An application under § 2255 is an extraordinary remedy and should not be considered a substitute for direct appeal." Capaldi v. Pontesso, 135 F.3d 1122, 1124 (6th Cir. 1998). "In the case where the defendant has failed to assert his claims on direct appeal and thus has procedurally defaulted, in order to raise them in a § 2255 motion he also must show either that (1) he had good cause for his failure to raise such arguments and [actual] prejudice . . . or (2) he is actually innocent." Regalado v. United States, 334 F.3d 520, 528 (6th Cir. 2003) (citing Bousley v. United States, 523 U.S. 614, 622 (1998)).
"[A] claim that 'is so novel that its legal basis [wa]s not reasonably available to counsel' may constitute cause for a procedural default." Gibbs v. United States, 655 F.3d 473, 476 (6th Cir. 2011) (quoting Bousley, 523 U.S. at 622). Also, ineffective assistance of counsel may in some cases show cause for the default and actual prejudice from it. See Hall v. Vasbinder, 563 F.3d 222, 236-37 (6th Cir. 2009). In order to show actual prejudice, the defendant must show "not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." United States v. Frady, 456 U.S. 152, 170 (1982) (emphasis in original). To show actual innocence, the defendant must show that "it is more likely than not that no reasonable juror would have convicted him." Bousley, 523 U.S. at 623 (internal quotation marks and citations omitted). "The 'hurdle' [a defendant] faces in excusing his procedural default is 'intentionally high for respect for the finality of judgments demands thatcollateral attack generally not be allowed to do service for an appeal.'" Peveler v. United States, 269 F.3d 693, 700 (6th Cir. 2001) (quoting Elzy v. United States, 205 F.3d 882, 884 (6th Cir. 2000)); see also Frady, 456 U.S. at 166 ().
By not raising them on direct appeal, Defendant procedurally defaulted his claims regarding improper jury instructions, impermissible hearsay, sentencing guidelines error, and an Allen charge. And while Defendant did raise his ineffective assistance of counsel claim on direct appeal,3 he also now argues that this Court erred by denying his request for substitute counsel on the eve of trial. To the extent this argument relates to the adequacy of the Court's inquiry into the conflict issues, that issue was raised on direct appeal and has been preserved. To the extent this argument relates to the Court's consideration of other factors, that issue has been procedurally defaulted because it was not raised on direct appeal and is "analytically distinct." See Gross v. Warden, 426 F. App'x 349, 359 (6th Cir. 2011) (unpublished).
Defendant argues, however, that he has not procedurally defaulted his claim based on improper jury instructions under McDonnell, because that case was not decided until after his direct appeal. While a legal argument that was not previously available may constitute cause, the standard for establishing cause on this basis, also known as the novelty standard, "is a high one: the petitioner's counsel must have had'no reasonable basis upon which to formulate' the question now raised." Gibbs, 655 F.3d at 476 (quoting Reed v. Ross, 468 U.S. 1, 14 (1984)).
Defendant's McDonnell argument does not meet the novelty standard. Even though McDonnell was not decided until 2016, similar arguments had been made in the past. See, e.g., Valdes v. United States, 475 F.3d 1319, 1325 (D.C. Cir. 2007) (). In fact, in McDonnell, the Supreme Court relied upon, and simply clarified, its previous ruling in United States v. Sun-Diamond Growers of Cal., 526 U.S. 398 (1999). See McDonnell, 136 S. Ct. at 2370-72. For these reasons, other courts have similarly held that the argument based on McDonnell was reasonably available to defendants prior to the case being decided. See, e.g., Elgawhary v. United States, No. DKC 14-0068, 2018 U.S. Dist. LEXIS 7039, at *8 (D. Md. Jan. 11, 2018); see also United States v. Ciavarella, No. 3:09-CR-272, 2018 U.S. Dist. LEXIS 2785, at *29 (M.D. Pa. Jan. 8, 2018) (). In sum, Defendant's argument based on McDonnell was available to him on direct appeal, so he has not established cause to excuse his default of that claim. Nor has Defendant presented anything in his motion that would excuse his default of the remaining claims that were not raised on direct appeal.
And even if Defendant could establish cause, either due to the unavailability of the McDonnell argument or due to the alleged deficiencies in Defense Counsel's performance, Defendant falls far short of showing that the alleged errors "worked to hisactual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions," as discussed below. See Frady, 456 U.S. at 170. Nor can Defendant show actual innocence. As this Court has previously discussed at length, the evidence at trial weighed heavily in support of the verdicts of guilt against Defendant. See United States v. Kilpatrick, No. 10-20403, 2013 U.S. Dist. LEXIS 111723, at *6-61 (E.D. Mich. Aug. 8, 2013). Most of Defendant's claims are therefore barred, and even if they were not barred, those claims would fail on the merits, as discussed below.
Defendant argues that because the jury instructions did not comport with the Supreme Court's intervening decision in McDonnell, he may have been convicted for conduct that was not unlawful. In McDonnell, 136 S. Ct. at 2365, 2368, the Supreme Court narrowed the definition of "official act" under the federal bribery statute, 18 U.S.C. § 201(a)(3), which the parties in that case had used to define "official act" for purposes of honest services fraud under 18 U.S.C. §§ 1343, 1349 and "official action" under the Hobbs Act, 18 U.S.C. § 1951(a). McDonnell had challenged the definition of "official action" in the jury instructions on the ground that it encompassed virtually all of a public official's activities, no matter how minor. McDonnell, 136 S. Ct. at 2367. The Supreme Court held that an official act, under § 201(a)(3), "is a decision or action on a 'question, matter, cause, suit, proceeding or controversy' . . . [that] must involve a formal exercise of governmental power that is similar in nature to a lawsuit before a court, a determination before an agency, or a hearing before a committee." McDonnell, 136 S. Ct. at 2371-72. In addition, "the public official must make a decision or take an action on that 'question, matter, cause, suit, proceeding or controversy,' or agree to do so." Id.at 2372. The Supreme Court therefore found that "[s]etting up a meeting, talking to another official, or organizing an event (or agreeing to do so) - without...
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