United States v. McDonald
| Decision Date | 25 July 2013 |
| Docket Number | Case No. 11-10158-EFM |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v DERRICK D. McDONALD, Defendant. |
| Court | U.S. District Court — District of Kansas |
Derrick McDonald brings this motion to vacate, set aside, or correct a sentence pursuant to 28 U.S.C. § 2255. The Court determines that hearing is not necessary, and for reasons set forth following, the Court denies the motion.
On August 17, 2011, Defendant Derrick McDonald was initially charged by the grand jury, along with one co-defendant, in a one-count indictment of bank robbery. A three-count superseding indictment was returned on October 13, 2011 which, in addition to the initial bank robbery charge, added a second count of bank robbery for another bank, and added a third count of possession of a firearm in connection with a crime of violence.
On March 22, 2012, McDonald entered pleas of guilty to counts one and two of the superseding indictment. Pursuant to that plea, McDonald entered into a plea agreement in which he knowingly and voluntarily waived any right to appeal or collaterally attack any matter in connection with his prosecution, conviction or sentence, including a motion brought under Title 28, U.S.C. § 2255, except as limited by the decision in United States v. Cockerham1 (so long asthe sentence imposed was within the guideline range determined appropriate by the court). This waiver was specifically discussed with McDonald during his change of plea hearing. The waiver complies with United States v. Hahn2 and is thus fully enforceable.
A presentence investigation report was prepared on McDonald, which determined that he was a career offender pursuant to United States Sentencing Guidelines § 4B1.1(b). As a result, McDonald's offense conduct was adjusted from level 25 to level 31 (following reductions for acceptance of responsibility). Defendant's criminal history category was determined to be a category VI without regard to his career offender status, so an adjustment to that category which would have otherwise occurred did not affect his guideline sentence. Based on an offense level 31, criminal history category VI, McDonald's sentencing guideline range was 188 to 235 months. Through counsel, McDonald filed an objection to this characterization, and filed a sentencing memorandum arguing against it.3 On July 2, 2012, McDonald was sentenced to a mid-guideline sentence of 204 months.
McDonald timely docketed an appeal to the Tenth Circuit challenging his career offender characterization. He argued for relief from the appeal waiver under the third Hahn factor, alleging that ineffective assistance of counsel in negotiating the appeal waiver might have resulted in a miscarriage of justice. The Tenth Circuit noted that such arguments must be raised in a collateral proceeding under 28 U.S.C. § 2255, and after concluding that the Hahn requirements for enforcing the plea waiver had been satisfied, on September 25, 2012 it granted the Government's motion to enforce the plea agreement and dismissed the appeal.
On May 31, 2013, McDonald filed a motion to vacate, set aside, or correct a sentence pursuant to 28 U.S.C. § 2255 (Doc. 74). The motion was filed pro se. The Court did not request the Government to file a response to the motion, and none has been filed. Defendant's filing comprises 125 pages, much of which are copies of documents filed in his case, and transcripts of his plea hearing and sentencing. However, in the sections of his filing which he has labeled "Sworn Affidavit"4 and "Addendum to Motion to Vacate, Set Aside or Correct a Sentence," he sets forth the grounds upon which he seeks relief.
His first allegation is that he was denied effective counsel during the plea negotiations. In support of this ground for relief, he alleges that his counsel never investigated his possible exposure to a career offender characterization prior to advising defendant to plead, his counsel never discussed with him that he was subject to enhancement under the career offender provisions of the Sentencing Guidelines, and that his counsel's attempt to object to this enhancement during sentencing was futile due to his failure to investigate. He further alleges that the government did not clearly establish that the prior convictions upon which the career offender enhancement was predicated were qualifying offenses. McDonald's argument in support of his first grounds accurately sets forth the two prong test established by Strickland v. Washington.5 He argues that his attorney's failure to investigate what sentence McDonald's plea would expose him to fell below the objective standard of reasonableness, noting that his attorney admitted that he was unaware McDonald would be characterized as a career offender until receipt of the Presentence Investigation Report. With respect to the second Strickland standard, he argues that he would not have pleaded guilty had he known this, and therefore there was areasonable probability that the result would have been different but for his counsel's ineffective assistance.
His second allegation is that the plea and waiver of appeal rights were the fruit of ineffective representation. He claims that the plea and waiver were the result of fraud and misrepresentation, because the plea agreement did not contain a stipulation that the government was seeking to enhance the sentence pursuant to the career offender section of the guidelines. Absent that information, he claims that his signature to the plea agreement was obtained fraudulently and as a result of his attorney's ineffective negotiation, and that therefore the plea waiver should not be enforced. He also argues that the plea process denies due process of law. Waiting until after his plea and waiver to prepare the presentence report and recommended sentence is "fundamentally unfair," he argues, and allows the government to "ambush the defendant."6
His third allegation is that he was improperly sentenced under the career offender guideline. He claims that the government failed its burden of clearly establishing the qualifying predicate offenses.
McDonald seeks relief in the nature of being re-sentenced "as he understood his plea agreement without the career offender enhancement."7
28 U.S.C. § 2255(a) provides:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, maymove the court which imposed the sentence to vacate, set aside or correct the sentence.
According to Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts, if, after the judge examines the motion, it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion. An evidentiary hearing must be held on a § 2255 motion "unless the motion and files and records of the case conclusively show that the prisoner is entitled to no relief."8 Petitioner must allege facts which, if proven, would warrant relief from his conviction or sentence.9 An evidentiary hearing is not necessary where the factual allegations in a § 2255 motion are contradicted by the record, inherently incredible, or when they are conclusions rather than statements of fact.10
Finally, Petitioner appears pro se. Therefore, his pleadings are to be construed liberally and not held to the standard applied to an attorney's pleadings.11 If a petitioner's motion can be reasonably read to state a valid claim on which he could prevail, a court should do so despite a failure to cite proper legal authority or follow normal pleading requirements.12 It is not, however, "the proper function of the district court to assume the role of advocate for the pro se litigant."13 For that reason, the court shall not supply additional factual allegations to round out a petitioner's claims or construct a legal theory on his behalf.14 Ineffective Assistance of Counsel
The Court finds that the record conclusively demonstrates that McDonald is not entitled to relief on his ineffective assistance of counsel claim, obviating the need for a response by the government or a hearing. The Sixth Amendment guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence."15 As McDonald correctly noted in his application, a successful claim of ineffective assistance of counsel must meet the two-pronged test set forth in Strickland v Washington16 First, a defendant must show that his counsel's performance was deficient in that it "fell below an objective standard of reasonableness."17 To meet this first prong, a defendant must demonstrate that the omissions of his counsel fell "outside the wide range of professionally competent assistance."18 This standard is "highly demanding."19 Strategic or tactical decisions on the part of counsel are presumed correct, unless they were "completely unreasonable, not merely wrong, so that [they] bear no relationship to a possible defense strategy."20 In all events, judicial scrutiny of the adequacy of attorney performance must be strongly deferential: "[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance."21 Moreover, the reasonableness of the challenged conduct must be evaluated fromcounsel's perspective at the time of the alleged error; "every effort should be made to 'eliminate the distorting effects of hindsight.' "22
Second, a defendant must show that his counsel's deficient performance actually prejudiced his defense.23 To prevail on this prong, a defendant ...
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