United States v. Washington, 4:97CR3019 (D. Neb. 11/27/2000), 4:97CR3019.
| Decision Date | 27 November 2000 |
| Docket Number | 4:97CR3019. |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. TIMOTHY WASHINGTON, Defendant. |
| Court | U.S. District Court — District of Nebraska |
This case comes before me on the defendant's Motion Under 28 U.S.C. § 2255, filing 144. In its answer, filing 147, the government denies the defendant's allegations and contends that his motion should be dismissed. After reviewing the record before me, I conclude that further fact finding is necessary with respect to the defendant's third and fourth claims. The defendant's remaining claims will be denied.
On May 20, 1997, a two-count sealed indictment was filed, charging the defendant and a co-defendant with (1) conspiracy to distribute fifty grams or more of cocaine base in violation of 21 U.S.C. § 846, and (2) possession with intent to distribute five grams or more of cocaine base in violation of 21 U.S.C. § 841 (a)(1). Filing 1. A superseding indictment was later filed, altering the dates of the conspiracy charged in count one and including the defendant's aliases. Filing 19. The defendant was arraigned on the superseding indictment and entered pleas of not guilty as to both counts.
On January 5, 1998, the defendant's jury trial began. A mistrial was declared on January 7, 1998, and a second jury was impaneled on May 19, 1998. At the conclusion of the trial, the jury returned a verdict finding the defendant guilty as to both counts of the superseding indictment. On January 7, 1999, I then sentenced the defendant to 360 months imprisonment as to count one and two, to run concurrently, followed by five years of supervised release. A $200 special assessment was also imposed.
The defendant appealed his conviction to the Eighth Circuit Court of Appeals, arguing that (1) a mistrial should not have been sought or granted because his counsel did not allow him to make that decision, and (2) his retrial was barred on double jeopardy grounds because the prosecutor intended to provoke his counsel into moving for a mistrial. See United States v. Washington, 198 F.3d 721, 723 (1999). The Eighth Circuit rejected both of the defendant's claims and affirmed his conviction. Id. The defendant then filed the present motion pursuant to 28 U.S.C. § 2255, alleging four grounds for relief. See Motion Under 28 U.S.C. § 2255, United States v. Washington, 4:97cr03019 (D.Neb.), filing 144 [hereinafter Defendant's Motion].
Section 2255 of Title 28 of the United States Code provides individuals in federal custody with a means to collaterally attack a sentence imposed after a conviction. A motion to vacate, set aside or correct a sentence may be based on 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. . . ." 28 U.S.C. § 2255 ¶ 1. A movant must be afforded an evidentiary hearing on his § 2255 motion "[u]nless the motion and the files and record of the case conclusively show that the prisoner is entitled to no relief. . . ." Id. ¶ 2.
Generally, a claim that is not properly preserved at trial or on direct appeal is procedurally defaulted and cannot be reached in a § 2255 proceeding. United States v. Ward, 55 F.3d 412, 413 (8th Cir. 1995). A movant may avoid this procedural bar if he can show cause for the default and resulting prejudice, or if he can show that the alleged error was a "fundamental miscarriage of justice." Anderson v. United States, 25 F.3d 704, 706 (8th Cir. 1994).
Ineffective-assistance-of-counsel claims, however, are usually "not cognizable on direct appeal." United States v. Jennings, 12 F.3d 836, 840 (8th Cir. 1994) (citing United States v. Sanchez, 927 F.2d 376, 378 (8th Cir. 1991); United States v. Murphy, 899 F.2d 714, 716 (8th Cir. 1990)). Such claims are properly raised in either § 2255 proceedings or in habeas corpus actions. Id. The rare exception to this rule applies when the district court has developed a factual record with respect to the ineffectiveness issue. Id. (citing United States v. Williams, 897 F.2d 1430, 1434 (8th Cir. 1990)).
In his § 2255 motion, the defendant raises the following four grounds for relief: (1) the United States Supreme Court decision in Apprendi v. New Jersey, 120 S.Ct. 2348 (2000), renders his sentence constitutionally infirm in that the government "has failed to prove all required elements of the instant conviction beyond a reasonable doubt"; (2) 21 U.S.C. § 841 is unconstitutional as written in light of the Supreme Court's Apprendi decision; (3) his trial counsel engaged in misconduct and was generally ineffective; and (4) his trial counsel was ineffective in failing to interview and/or call witnesses on his behalf. In response, the government denies the defendant's allegations and contends that his motion should be dismissed without an evidentiary hearing. For the reasons discussed below, I find that the defendant's third and fourth claims merit further review. His remaining claims will be dismissed.
The defendant first argues that his sentence violates the constitutional principles set forth by the United States Supreme Court in Apprendi v. New Jersey, 120 S.Ct. 2348 (2000). In support of his first claim, the defendant also relies on the case of Jones v. United States, 526 U.S. 227 (1999). According to the defendant, these decisions require the government, in federal drug cases, to charge drug quantity in the indictment and to prove drug quantity to the jury beyond a reasonable doubt. Defendant's Motion at 9. Because such a procedure was not followed in his case, he contends that his convictions must be vacated.
In Jones v. United States, the Supreme Court addressed the elusive distinction between "elements" of a substantive offense, which must be considered by a jury, and "sentencing factors," which are based on judicial findings of fact. At issue in Jones was the federal carjacking statute, which provided for increased penalties when "serious bodily injury" resulted. Jones, 526 U.S. at 230. The Supreme Court, in interpreting this statute, found that it was ambiguous as to whether the "serious bodily injury" provision was a sentencing factor or an element of a different, more serious, substantive offense. Id. at 232-39. Citing the rule of constitutional doubt, the Court concluded that the enhancement provision, which increased the maximum statutory sentence from fifteen years to twenty-five years, was actually an element of a separate substantive offense. Id. at 230, 239-40. In a footnote, the Court then expressed the following principle underlying its decision: "under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt." Id. at 243 n. 6.
The Apprendi decision clarified that the principle expressed in Jones is required as a matter of constitutional law. See United States v. Aguayo-Delgado, 220 F.3d 926, 931 (8th Cir. 2000) (). In Apprendi, the Court upheld a constitutional challenge to a New Jersey statute that authorized enhanced penalties beyond the prescribed statutory maximum for offenses committed with a biased purpose. Apprendi, 120 S.Ct. at 2352, 2362-63. Under the procedures established by the statute, this sentence enhancement provision was triggered upon a judicial finding that the defendant acted "with a purpose to intimidate" in committing the substantive offense. Id. at 2352. In analyzing this procedure, the Court re-examined "the constitutionally novel and elusive distinction" between sentencing factors and elements of a substantive offense. Id. at 2365. According to the Court, "the relevant inquiry [in distinguishing between sentencing factors and substantive elements] is one not of form, but of effect-does the required finding expose the defendant to a greater punishment than that authorized by the jury's guilty verdict?" Id. Rejecting New Jersey's characterization of the enhancement provision as a mere "sentencing factor," the Supreme Court referred to Jones in holding that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. at 2362-63.
In United States v. Aguayo-Delgado, 220 F.3d 926 (8th Cir. 2000), the Eighth Circuit examined the effect of Apprendi on federal drug laws. The defendant in Aguayo-Delgado was convicted of conspiring to distribute methamphetamine in violation of 21 U.S.C. § 846. Aguayo-Delgado, 220 F.3d at 928. Based on § 841(b)(1)(A), which prescribes penalties for drug violations based on specific drug types and amounts, the defendant was subject to a sentence of twenty-years-to-life imprisonment. Id. at 930. Section 841(b)(1)(C), which defines penalties for drug violations without reference to drug quantity, prescribed a sentence of no more than thirty years imprisonment. Id. The district court, in calculating the defendant's sentence, determined that the guidelines normally allowed for a sentencing range of 235 to 293 months imprisonment, based, in part, upon a judicial finding that the defendant was responsible for "more than 3 but under 15 kilograms" of methamphetamine. Id. at 929. Because § 841(b)(1)(A) required at least twenty years imprisonment, the district court then concluded...
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