United States v. Powers
| Decision Date | 28 September 2015 |
| Docket Number | Criminal No. 13-CR-89 (SRN) |
| Parties | United States of America, Plaintiff-Respondent, v. Robert Lee Powers, Defendant-Petitioner. |
| Court | U.S. District Court — District of Minnesota |
Thomas M. Hollenhorst, United States Attorney's Office, 300 South Fourth Street, Suite 600, Minneapolis, Minnesota 55415, on behalf of Plaintiff-Respondent
Robert Lee Powers, Reg. No. 03487-041, Federal Correctional Institution, P.O. Box 5000, Pekin, Illinois 61555, Pro Se Defendant-Petitioner
This matter is before the undersigned United States District Judge on Defendant-Petitioner Robert Lee Powers' pro se motion pursuant to 28 U.S.C. § 2255 for an order of this Court to vacate, set aside, or correct his sentence [Doc. No. 52]. Also before the Court are the following pro se motions filed by Powers: Motions for Return of Property [Doc. Nos. 54 & 60]; Motions to Amend [Doc. Nos. 61 & 66]; Motion to Reduce Sentence [Doc. No. 55]; and Motion to Take Judicial Notice [Doc. No. 62]. Based on a review of the file, record and proceedings therein, and for the reasons set forth below, the Court denies Defendant-Petitioner's motions.
In April 2013, Powers was indicted on charges of being a felon in possession of a firearm (Count 1), in violation of 18 U.S.C. § 922 (g)(1) and 924 (e)(1), and for possession with intent to distribute heroin (Count 2), in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)©. (Indictment [Doc. No. 1].) At his initial appearance, the Court appointed counsel to represent Powers. (Minute Entry of 4/25/13 [Doc. No. 6].) On April 26, 2013, Federal Defender Reynaldo Aligada entered an appearance as Powers' counsel. (Notice of Appearance [Doc. No. 5].)
On July 17, 2013, Defendant-Petitioner pleaded guilty to the felon-in-possession charge in Count 1 of the Indictment, and in return, the Government agreed to dismiss the drug charge in Count 2 at the time of sentencing [Doc. Nos. 26 & 27].
At his plea hearing, Defendant-Petitioner explained that on May 18, 2013, police conducted a search of his apartment, during which they found five grams of heroin on his person, in addition to a bag containing a semi-automatic pistol. (Plea Hearing Tr. at 28 [Doc. No. 47].) Defendant-Petitioner admitted that he owned the weapon and the drugs. (Id.) Powers also conceded that at the time of his possession of the firearm, he had previously been convicted of numerous felonies, at least three of which qualified as violent crimes or serious drug offenses under provisions of the Armed Career Criminal Act (the "ACCA"), 18 U.S.C. § 924(e). (Id. at 29-30.) He also acknowledged that no one had forced him to possess the gun and he knew it was illegal for him to possess it because of his prior felony convictions. (Id. at 30.)
Also at the plea hearing, Defendant-Petitioner expressed his satisfaction with the services of his counsel, Mr. Aligada. (Id. at 6-7.) In addition, Powers acknowledged his understanding of the plea agreement and that by pleading guilty, he was subject to a mandatory minimum sentence of 15 years pursuant to the ACCA, a maximum sentence of life, and a guideline range of 188 to 235 months. (Id. at 11; 19-20.) Further, Defendant-Petitioner indicated that he entered the plea voluntarily and that he was pleading guilty because he was, in fact, guilty of the crime. (Id. at 31.)
His counsel also stated that regardless of the legal applicability of the ACCA to Powers' sentence, Powers found the act to be unfair as a matter of policy. (Id. at 16.) Powers also expressed his understanding that any disagreement with the policies underlying the ACCA was a legislative matter, for which he could raise any concerns with his congressional representatives. (Id. at 17.) Finally, pursuant to the terms of the plea agreement, Powers waived his rights to direct appeal, subject to certain conditions.1 (Id. at 20.)
Following the plea, a Presentence Investigation Report ("PSR") was prepared by the United States Probation Office, which indicated that Powers had a history of numerous convictions, including several felony convictions.
In April 2014, based on Powers' guilty plea to Count 1, this Court sentenced Powers to a prison term of 188 months, five years of supervised release, and a $100 special assessment. (Sentencing J. [Doc. No. 37].) Count 2 of the Indictment was dismissed on the motion of the Government. (Id.) Defendant-Petitioner did not object to the PSR at sentencing. (Sentencing Tr. at 3 [Doc. No. 44].) As noted, the PSR detailed Powers' criminal history, which included seven prior convictions that the Government contends constitute qualifying convictions under the ACCA. Defendant-Petitioner unsuccessfully filed a direct appeal of his conviction. (J. of 8th Cir. [Doc. No. 49].)
On May 6, 2015, Defendant-Petitioner filed the instant pro se motion under § 2255. Powers identifies two bases for his motion: (1) ineffective assistance of counsel; and (2) that his guilty plea was unlawfully induced or involuntarily made. (Def.-Pet'r's § 2255 Mot. at 4; 6 [Doc. No. 52].) In addition, he filed two motions to amend his § 2255 petition in light of a recent United States Supreme Court ruling, Johnson v. United States, ___ U.S. ___, 135 S. Ct. 2551 (2015) [Doc. Nos. 61 & 66]. He also filed motions seeking the return of $435 allegedly seized from him at the time of his arrest [Doc. Nos. 54 & 60]. Additionally, Defendant-Petitioner filed a motion seeking a modification of the period of supervised release [Doc. No. 55]. Finally, Defendant-Petitioner requests an evidentiary hearing and the appointment of counsel. (Id.)
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, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
While § 2255 generally affords relief, it is only available in limited circumstances. The Eighth Circuit Court of Appeals has held that:
[r]elief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and, if uncorrected, would result in a complete miscarriage of justice. A movant may not raise constitutional issues for the first time on collateral review without establishing both cause for the procedural default and actual prejudice resulting from the error.
United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir.1996) (citation omitted). Beyond jurisdictional and constitutional errors, the permissible scope of § 2255 claims is "severely limited." Sun Bear v. United States, 644 F.3d 700, 704 (8th Cir. 2011) (en banc).
The primary basis for Powers' claim of ineffective assistance of counsel is that his counsel "failed to investigate, provide proper legal advice" and "induce[d] the guilty plea based on erroneous and faulty advice[,] rendering the plea involuntary." (Def.-Pet'r's Mem. Supp. § 2255 Mot. at 2 [Doc. No. 53].) Essentially, Powers contends that he did not qualify as an armed career criminal under the ACCA, which requires a mandatory 15-year sentence, because his underlying criminal convictions did not meet the statutory requirements. (Id. 2-9.) Because his attorney allowed him to plead guilty and failed to challenge or object to the inclusion of certain prior convictions, he argues that he received a much higher sentence under the ACCA than was legally justified. (Id.) The Court therefore addresses the applicability of the ACCA in order to address Powers' claim of ineffective assistance of counsel.
As a preliminary matter, Powers appears to confuse the ACCA with rules in the Sentencing Guidelines regarding the calculation of a defendant's criminal history category. While the ACCA and the Sentencing Guidelines contain some similarities, they are not the same. The Sentencing Guidelines, § 4A1.1, provide the rules for determining how many criminal history points a defendant acquires for each prior conviction, depending on the type and age of that conviction. Under the ACCA, recidivists convicted of unlawful possession of a firearm under 18 U.S.C. § 922(g), must be sentenced to a minimum 15-year term of imprisonment if they have three prior state or federal convictions for serious drug offenses or violent felonies, regardless of the age of the prior convictions. 18 U.S.C. § 924(e).
"Serious drug offenses" under the ACCA include offenses under state law "involving the manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance . . . ," for which a maximum term of imprisonment of 10 years or more is prescribed by law. 18 U.S.C. at § 924(e)(2)(A)(ii).
The ACCA defines "violent felonies" as those punishable by a term of imprisonment exceeding one year (1) that have as an element the use, attempted use, or threatened use of physical force against another; or (2) that are burglary, arson, or extortion, or crimes involving the use of explosives; or (3) under the section's "residual clause," that "otherwise involve[ ] conduct that presents a serious potential risk of physical injury to another." Id. at § 924(e)(2)(B)(i)-(ii). "Physical force," noted in (1) above, is synonymous with "violent force - that is, force capable of causing physical pain or injury to another person." United States v. Johnson, 559 U.S. 133, 140 (2010) (citing Flores v. Ashcroft, 350 F.3d 666, 672 (7th Cir. 2003)). As to the residual clause, quoted in (3) above, the Supreme Court recently found it unconstitutionally vague and therefore effectively void. Johnson, ...
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