United States v. Rose
| Decision Date | 13 August 2020 |
| Docket Number | No. 11-cr-10062-NMG,11-cr-10062-NMG |
| Parties | UNITED STATES OF AMERICA, Respondent, v. RUSSELL C. ROSE, Petitioner. |
| Court | U.S. District Court — District of Massachusetts |
[Docket Nos. 1206, 1296, 1299]
BOAL, M.J.
Russell C. Rose, who is currently serving a twenty-Five year sentence in a federal correctional facility, Filed a pro se1 motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence (the "Motion"). Docket No. 1206.2 For the following reasons, this Court recommends3 that the District Judge assigned to this case deny the Motion.
A grand jury indicted Rose and fifteen others for conspiring to distribute, and to possess with intent to distribute, cocaine and heroin in violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(B). Docket No. 76. The conspiracy, of which Rose and co-defendant Kelvin Frye were purportedly leaders, was alleged to have lasted from approximately March 2008 until November 2010. Id. at 2; see United States v. Rose, 802 F.3d 114, 116-17 (1st Cir. 2015). Following a 2012 jury trial, Rose was convicted on the drug-conspiracy charge. Docket No. 626.
Rose was sentenced on April 8, 2013. Docket No. 721. At the sentencing hearing, Rose's trial counsel, Rudolph F. Miller, reported to Judge Gorton that Rose recently had sent correspondence to the Massachusetts Board of Bar Overseers ("BBO") regarding a complaint Rose had filed against Miller. Sentencing Transcript ("Sentencing Tr.")4 at 10. Miller noted that he was prepared to go forward with the sentencing, but relayed Rose's request that Judge Gorton remove Miller from the case. Id. Judge Gorton, treating this request as a motion to withdraw as counsel, denied Miller's motion.5 Id. at 11.
At the sentencing, Judge Gorton determined by a preponderance of the evidence that Rose was responsible for at least nine kilograms of cocaine, twenty grams of heroin and 1.77 kilograms of marijuana. Id. at 39. Judge Gorton noted that this was "a very conservative estimate" and that the amount of cocaine very likely exceeded nine kilograms. Id. at 51. Thesequantities subjected Rose to a 20-year mandatory minimum sentence, although neither Judge Gorton nor the parties mentioned this during the sentencing hearing. See Rose, 802 F.3d at 126.
Under the sentencing guidelines, the drug amounts yielded a base offense level of 32. Sentencing Tr. 39. Judge Gorton then added a two-level enhancement for Rose's possession of a dangerous weapon, a four-level enhancement for Rose's role in the offense and an additional two-level enhancement for Rose's obstruction of justice with regard to his post-arrest activities. Id. Judge Gorton therefore determined that the total adjusted offense level was 40. Id.
With respect to criminal history, Judge Gorton determined that Rose fell under Criminal History Category III. Id. at 40. Rose's guideline range was therefore 360 months to life. Id. The government argued that a 360-month sentence was appropriate, given the scale of the drug operation and Rose's criminal history and conduct. Id. at 41-43. Miller asked for a lesser sentence, arguing that the guideline recommendation was excessive and, "in essence, a death sentence." Id. at 45.
Judge Gorton sentenced Rose to 300 months of imprisonment, to be followed by a supervised release term of 10 years. Id. at 53. He observed that Rose "organized and led one of the worst and most comprehensive drug conspiracies that this Court has seen in his 20 years on the bench." Id. at 51. Due to the extent of the conspiracy, Judge Gorton noted, Rose deserved to be imprisoned for "an unrelenting period of time, not only to punish [Rose] for the pain [he] inflicted on others but also to deter any other drug lord who thinks that he might get away with similar operations, which plague rich and poor communities alike." Id. However, in response to Miller's closing argument at sentencing, Judge Gorton ultimately imposed a sentence below the guideline range, emphasizing "a point of diminishing returns" with regard to sentence lengths.Id. at 52. A 300-month sentence, therefore, was "sufficient, but not greater than necessary, to accomplish those things that [the Court] mentioned earlier in [its] remarks."6 Id.
Rose appealed his conviction. Docket No. 745. Among other things, Rose argued that Judge Gorton, rather than the jury, made certain drug-quantity findings, and that Judge Gorton then imposed a statutory mandated sentence based on those findings, in violation of Alleyne v. United States, 570 U.S. 99 (2013).7 See Rose, 802 F.3d at 126. The United States Court of Appeals for the First Circuit found that no Alleyne error occurred, as Judge Gorton's sentence was "based purely on guidelines considerations." Id. at 127. Moreover, the First Circuit noted that, even if an Alleyne error did occur, the overwhelming drug evidence presented at trial precluded Rose from establishing the necessary prejudice to sustain his Alleyne claim. Id. at 127-28. The First Circuit affirmed Rose's conviction, id. at 128, and denied his petition for a rehearing en banc on January 12, 2016. The Supreme Court denied Rose's petition for a writ of certiorari on June 6, 2016. Docket No. 1143.
On June 7, 2017, Rose filed this Motion, in which he raises three ineffective assistance of counsel claims. Docket No. 1206. First, Rose argues that Miller rendered ineffective assistance of counsel when he did not object to jury instructions pertaining to drug weights attributable to Rose, or request a special question on the verdict specifying a drug weight attributable to Rose. Docket No. 1207 at 13. Second, Rose argues that Miller effectively abandoned him during his sentencing, constructively denying Rose his Sixth Amendment right to counsel. Id. Finally, Rose argues his appellate counsel rendered ineffective assistance of counsel by failing to notify the First Circuit that Judge Gorton imposed a mandatory minimum sentence. Id. Resolution of the Motion was stayed until the First Circuit decided Rose's direct appeal. Docket No. 1243. Thereafter, on March 6, 2019, Rose filed a supplemental memorandum of law. Docket No. 1279. The government filed its opposition on August 2, 2019. Docket No. 1298.
Title 28, United States Code, Section 2255 provides for post-conviction relief only when the petitioner has demonstrated that his sentence "(1) was imposed in violation of the Constitution, or (2) was imposed by a court that lacked jurisdiction, or (3) exceeded the statutory maximum, or (4) was otherwise subject to collateral attack." Moreno-Morales v. United States, 334 F.3d 140, 148 (1st Cir. 2003) (citing David v. United States, 134 F.3d 470, 474 (1st Cir. 1998)). A sentence is subject to collateral attack if it involves an error or defect which, if uncorrected, would result in the complete miscarriage of justice or irregularities that are inconsistent with the rudimentary demands of fair procedure. Id.
The burden is on the petitioner to establish the need for Section 2255 relief. David, 134 F.3d at 474. The Supreme Court has emphasized that Section 2255 is not a substitute for direct appeal. Hill v. United States, 368 U.S. 424, 426-27 (1962); David, 134 F.3d at 474. "Errors warranting a reversal on direct appeal will not necessarily support a collateral attack." Knight v. United States, 37 F.3d 769, 772 (1st Cir. 1994).
A document filed by a pro se party "is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)) (internal quotation marks omitted); see also Fed. R. Civ. P. 8(e) ().
In order to show ineffective assistance of counsel under the Strickland analysis, Rose must show that: (1) counsel's performance was deficient, i.e., counsel made errors so serious that counsel was not functioning as "counsel" as guaranteed by the Sixth Amendment; and (2) the deficient performance prejudiced the defense, i.e., counsel's errors were so serious as to deprive the defendant of a fair trial. Strickland v. Washington, 466 U.S. 668, 687 (1984).
Although Rose must prove both deficient performance and prejudice to prevail on his ineffective assistance of counsel claim, the Court "need not address both requirements if the evidence as to either is lacking." Sleeper v. Spencer, 510 F.3d 32, 39 (1st Cir. 2007). "If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." Strickland, 466 U.S. at 697.
To satisfy the first prong of the Strickland test, Rose must show that trial counsel's performance was deficient to the point of being "objectively unreasonable." See United States v. McGill, 11 F.3d 223, 226 (1st Cir. 1993); Companonio v. O'Brien, 672 F.3d 101, 110 (1st Cir. 2012). Reasonable conduct falls "within the range of competence demanded of attorneys in criminal cases." United States v. Bosch, 584 F.2d 1113, 1121 (1st Cir. 1978) (quoting McMann v. Richardson, 397 U.S. 759, 770-71 (1970)). In other words, performance is constitutionally deficient "only if no competent attorney would have acted as [counsel] did." Companonio, 672 F.3d at 110 (citation omitted). "As a general matter, failure to anticipate a new rule of law is not deficient performance." U.S. v. Sampson, 820 F. Supp. 2d 202, 223 (D. Mass. 2011) (citation omitted).
To establish prejudice, a defendant must demonstrate ...
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