US v. Vancol, Crim. Action No. 88-7 MMS.

• Decision Date: 06 February 1996
• Docket Number: Crim. Action No. 88-7 MMS.
• Court: U.S. District Court — District of Delaware
• Parties: UNITED STATES of America, Plaintiff-Respondent, v. Jean Baptiste VANCOL, Defendant-Petitioner.

916 F. Supp. 372

UNITED STATES of America, Plaintiff-Respondent, v. Jean Baptiste VANCOL, Defendant-Petitioner.

Crim. Action No. 88-7 MMS.

United States District Court, D. Delaware.

February 6, 1996.

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COPYRIGHT MATERIAL OMITTED

Gregory M. Sleet, United States Attorney, and Richard G. Andrews, Assistant United States Attorney, Department of Justice, Wilmington, Delaware, for plaintiff-respondent.

Jean Baptiste Vancol, pro se.

MURRAY M. SCHWARTZ, Senior District Judge.

I. Introduction

Before the Court is a motion to vacate sentence under 28 U.S.C. § 2255 brought by petitioner Jean Baptiste Vancol ("petitioner" or "Vancol"). On June 26, 1991, Vancol filed his first section 2255 motion to vacate sentence, alleging various violations of constitutional guarantees, as well as violations of the Federal Rules of Criminal Procedure. See United States v. Vancol, 778 F.Supp. 219 (D.Del.1991) ("Vancol I"). The motion was denied. Id. This second motion to vacate sentence alleges other violations of his constitutional rights, including ineffective assistance of counsel before, during, and after trial and during time of appeal, manipulation of sentence factor, and cruel and unusual punishment. Finding no basis for relief in the petition, the Court will order Vancol's motion dismissed.¹

II. Facts

The following recitation of facts contain only those facts relevant to the present petition. On February 8, 1988, a federal grand jury returned a five count indictment against Vancol, alleging the following:

Count I: distribution of more than five grams of crack cocaine on February 1, 1988, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B) and 18 U.S.C. § 2;²

Count II: distribution of more than five grams of crack cocaine on February 2, 1988, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(iii) and 18 U.S.C. § 2;

Count III: conspiring to distribute cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) all in violation of 21 U.S.C. § 846;

Count IV: using the telephone to facilitate the distribution of cocaine base in violation of 21 U.S.C. § 843(b) and

Count V: resisting arrest in violation of 18 U.S.C. §§ 111 and 2.

On April 18, 1988, Vancol was tried by a jury in the District of Delaware and was found guilty on all counts of the indictment. His conviction was affirmed by the Third Circuit Court of Appeals. On June 26, 1991, Vancol moved pursuant to 28 U.S.C. § 2255 to vacate his sentence on the following grounds: (1) defense counsel rendered ineffective assistance, in violation of the Sixth Amendment, by failing to object to alleged factual inaccuracies in the Presentence Investigation Report ("PSI"); (2) the Court relied on allegedly false information at sentencing in violation of Vancol's Fifth Amendment Right to due process and his Fourteenth Amendment right to equal protection of the laws; (3) the Court violated Vancol's Fifth Amendment right to due process by failing to inquire whether he had read the PSI and whether he had any dispute with the facts contained in the report, pursuant to Federal Rule of Criminal Procedure ("Rule") 32(a)(1)(A); (4) the Court failed to make findings of fact pursuant to Rule 32(c)(3)(D) in violation of his due process rights; and (5) Vancol's enhanced sentence, based on his co-conspirator's possession of a dangerous weapon, was in error, because his co-conspirator was not convicted on the weapons charge. See Vancol I, 778 F.Supp. at 221.

The Court denied Vancol's petition. The Court concluded that the failure to personally ask the defendant whether he had the opportunity to read the PSI, a technical violation of Rule 32(a)(1)(A), was not cognizable under section 2255. Id. at 224. The Court also held that the Court's failure to hold an evidentiary hearing on alleged factual inaccuracies in the PSI did not violate Vancol's rights under Rule 32(c)(3)(D), because the defendant failed to controvert the accuracy of the PSI. Id. at 225. Further, the Court found that defense counsel's failure to adequately explain the PSI to him and to challenge the alleged factual inaccuracies in the PSI, which led to his being sentenced on the basis of false information, did not constitute ineffective assistance of counsel in violation of Vancol's Sixth Amendment rights. Id. at 226-27. Finally, the Court ruled that Vancol's enhanced sentence, based on the presence of a dangerous weapon in the possession of a co-conspirator, was not in error, notwithstanding the absence of a conviction of that co-conspirator on the weapons charge. Id. at 227-28. The Third Circuit Court of Appeals affirmed without opinion. United States v. Vancol, 970 F.2d 901 (3d Cir.1992). Vancol's second motion to vacate sentence pursuant to 28 U.S.C. § 2255 (the "petition") is now before the Court. Docket Item ("D.I.") 112.

Vancol's petition raises several grounds for relief. First, Vancol asserts that he was denied effective assistance of counsel before, during, and after trial. Second, Vancol asserts he was denied the right of appeal by reason of ineffective assistance of counsel. Third, Vancol argues that the Drug Enforcement Agency's ("DEA") act of setting up two telephonic sales of crack constituted a manipulation of sentencing factors, resulting in the imposition of a sentence greater than that which would have been imposed if only one drug transaction had been arranged. Finally, Vancol argues that his sentence based on the 100:1 weight ratio between crack and powder cocaine constitutes cruel and unusual punishment in violation of the Eighth Amendment and in violation of the Equal Protection Clause of the United States Constitution. Because Vancol raises new grounds as well as grounds previously raised and denied, the Court will treat them separately, as different legal standards apply to each.

III. Analysis

A writ of habeas corpus provides relief of last resort for state and federal prisoners seeking to challenge criminal proceedings brought against them in violation of their rights under law. Habeas corpus jurisprudence attempts to reconcile the competing interests of vindication of prisoners' rights with the interests of finality in criminal proceedings, preserving judicial resources, and preventing the disparagement of the entire criminal justice system by perpetual collateral review. See McCleskey v. Zant, 499 U.S. 467, 490-92, 111 S.Ct. 1454, 1468-69, 113 L.Ed.2d 517 (1991). A district court may grant federal habeas corpus relief on behalf of a prisoner in custody of the United States 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 the sentence, or that the sentence exceeded the maximum authorized by law, by moving for relief under 28 U.S.C. § 2255. However, in recognition of the "concerns flowing from the significant costs of federal habeas corpus review," McCleskey, 499 U.S. at 490-91, 111 S.Ct. at 1468-69, the statute also provides that "the sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner." 28 U.S.C. § 2255. Because habeas corpus jurisprudence is governed by equitable principles, the Supreme Court has ruled that "a suitor's conduct in relation to the matter at hand may disentitle him to the relief he seeks." Sanders v. United States, 373 U.S. 1, 17, 83 S.Ct. 1068, 1078, 10 L.Ed.2d 148 (1963).

One practice which may disentitle the petitioner to relief is the filing of successive petitions alleging grounds which have previously been decided against the movant in an earlier petition. Sanders, 373 U.S. at 15-17, 83 S.Ct. at 1077-78; Kuhlmann v. Wilson, 477 U.S. 436, 444 n. 6, 106 S.Ct. 2616, 2622 n. 6, 91 L.Ed.2d 364 (1986) (plurality opinion).³ In order to accord finality to the collateral attack procedure, 28 U.S.C. § 2244(a) provides that the district court need not entertain a successive petition by a federal prisoner if it appears that a prior application has already been examined by the court, the subsequent petition presents no new ground, and the court is satisfied that the ends of justice will not be served by consideration of the subsequent petition. Kuhlmann, 477 U.S. at 449, 106 S.Ct. at 2624. Rule 9(b) of the Rules Governing Section 2255 Proceedings authorizes the district court to dismiss the subsequent petition in that instance.

Another practice which may disentitle the petitioner to relief is the filing of a subsequent petition alleging claims which were available but nonetheless not raised in the first petition. Sanders, 373 U.S. at 17-19, 83 S.Ct. at 1078-79. In this instance, the filing of the subsequent petition can be deemed an abuse of the writ, and under Rule 9(b), the district court may dismiss the subsequent petition on that ground. See Rules Governing Section 2255 Proceedings 2(b) ("The motion shall specify all the grounds for relief which are available to the movant and of which he has or, by the exercise of reasonable diligence, should have knowledge....") (emphasis supplied). Because abuse of the writ cases are treated differently than successive petition cases under habeas jurisprudence, it is necessary to separate Vancol's different grounds for relief on the basis of whether the grounds are new or grounds previously denied.⁴

The Supreme Court has defined "ground" for the purpose of the abuse of the writ doctrine in Sanders, stating:

By "ground," we mean simply a sufficient legal basis for granting the relief sought by the applicant. For example, the contention that an involuntary confession was admitted in evidence against him is a distinct ground for federal collateral relief. But a claim of involuntary confession predicated on alleged psychological coercion does not raise a different "ground" than does one predicated on alleged physical coercion. In other words, identical grounds may often be proved by different factual allegations. So also,

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