Walker v. United States

• Citation: 810 F.3d 568
• Decision Date: 14 January 2016
• Docket Number: No. 14–3700.,14–3700.
• Parties: Nicole WALKER, Petitioner–Appellant v. UNITED STATES of America, Respondent–Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

810 F.3d 568

Nicole WALKER, Petitioner–Appellant

v.UNITED STATES of America, Respondent–Appellee.

No. 14–3700.

United States Court of Appeals, Eighth Circuit.

Submitted: Oct. 19, 2015.

Filed: Jan. 14, 2016.

Alfredo G. Parrish, argued, Des Moines, IA, for Appellant.

Mary Clare Luxa, AUSA, argued, Des Moines, IA, for Appellee.

Before RILEY, Chief Judge, SMITH and SHEPHERD, Circuit Judges.

RILEY, Chief Judge.

Nicole Walker pled guilty to conspiring to manufacture and distribute methamphetamine in violation of 21 U.S.C. §§ 846 and 841(a)(1), (b)(1). The district court¹ sentenced Walker to a mandatory minimum ten years imprisonment. We affirmed Walker's sentence on direct appeal. See United States v. Walker, 688 F.3d 416, 418 (8th Cir.2012). Walker now appeals the district court's denial of her motion to vacate, set aside, or correct her sentence pursuant to 28 U.S.C. § 2255.² Upon careful de novo review, see Thomas v. United States, 737 F.3d 1202, 1206 (8th Cir.2013), we conclude the district court properly denied Walker relief.

I. BACKGROUND

On August 18, 2010, a grand jury charged Walker with one count of conspiring to manufacture and distribute at least 50 grams of actual methamphetamine and 500 grams of a mixture or substance containing methamphetamine. Through counsel, Walker entered into extensive plea negotiations with the government. In an attempt to reduce the statutory mandatory minimum Walker faced from ten years to five years and to lower her sentencing range under the United States Sentencing Guidelines (U.S.S.G. or Guidelines), Walker and her counsel repeatedly sought to lower the drug quantity to which Walker would plead guilty.

The government did not relent entirely but offered to let Walker plead guilty to a lesser-included offense under § 841(b)(1)(B) and contest the drug quantity at sentencing. After detailed discussions with her counsel about the advantages and disadvantages of the government's plea offer, Walker pled guilty on February 24, 2011, to conspiring to manufacture and distribute at least five grams of actual methamphetamine or 50 grams of a mixture or substance containing methamphetamine.

In signing the written plea agreement, Walker averred she understood she was pleading guilty to a charge that carried "a mandatory minimum sentence of at least five years in prison and a maximum sentence of up to forty years in prison." The agreement further advised Walker

the government may argue at sentencing that [Walker] is responsible for at least 50 grams of actual methamphetamine or 500 grams of a mixture and substance containing methamphetamine and, if the district court finds by a preponderance of the evidence that [Walker] is responsible for this larger amount, the court will impose a ten-year mandatory minimum sentence.

Walker understood that regardless of which mandatory minimum applied, the district court could "not impose a sentence less than the mandatory minimum sentence unless" it found Walker qualified for safety-valve relief under 18 U.S.C. § 3553(f).³ Lastly, Walker agreed no one had promised she would "be eligible for a sentence of less than the mandatory minimum."

With respect to the voluntariness of her plea, Walker stated she "had a full opportunity to discuss" her case and the consequences of her plea with her counsel and was satisfied with her counsel's representation. Walker stated she had "no complaint about the time and attention" her counsel "devoted to [her] case nor the advice" he gave.

At Walker's change-of-plea hearing on February 24, 2011, the magistrate judge⁴ reiterated the key terms in Walker's plea agreement, including Walker could face a ten-year mandatory minimum. See Fed.R.Crim.P. 11(b), (c) (change of plea). Walker restated she was satisfied with her counsel and averred no one promised or predicted the exact sentence she would receive. On the magistrate judge's report and recommendation, the district court accepted Walker's guilty plea.

Beginning September 20, 2011, the district court conducted a sentencing hearing at which the drug quantity attributed to Walker was sharply contested. The government asserted Walker was responsible for 142.5 grams of actual methamphetamine, 182 grams of a purer form of methamphetamine known as "ice," and 724 grams of a mixture and substance containing methamphetamine. Walker, on the other hand, urged the district court to "find a drug quantity in a range of 100 to 200 grams mixture with 5 grams of such quantity being pure/ice." After reviewing "all of the evidence" in Walker's case, the district court concluded a preponderance of the evidence supported attributing the greater drug quantity to Walker despite "some reservation about the precision of that amount."

With respect to Walker's request for safety-valve relief, the district court concluded Walker did not qualify because she failed to demonstrate she "truthfully provided information regarding her offense, at least in complete detail," as required by 18 U.S.C. § 3553(f)(5). Based on its drug-quantity finding and Walker's ineligibility for safety-valve relief, the district court sentenced Walker to the statutory mandatory minimum ten years in prison. See 21 U.S.C. § 841(b)(1)(A) (imposing a mandatory minimum of ten years for a violation of § 841(a)(1) involving "50 grams or more of methamphetamine ... or 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine").

Walker appealed her sentence, challenging the total drug quantity attributed to her and the district court's conclusion she had distributed "ice." Walker, 688 F.3d at 418 n. 2, 420, 422–25. We affirmed. See id. at 418, 426. On October 31, 2012, Walker petitioned the Supreme Court of the United States for a writ of certiorari, alleging the district court failed to make sufficient fact findings to support its drug-quantity determination and improperly interpreted and applied the Guidelines definition of "ice." The Supreme Court denied certiorari on December 10, 2012. See Walker v. United States, ––– U.S. ––––, 133 S.Ct. 801, 184 L.Ed.2d 592 (2012).

On December 26, 2012, Walker filed a pro se § 2255 motion, primarily alleging ineffective assistance of counsel. The district court appointed counsel to represent Walker, and her counsel then filed two amended motions, raising additional grounds for relief. The district court denied relief without an evidentiary hearing. Walker timely appeals, arguing the district court erred in failing to (1) retroactively apply Alleyne v. United States, 570 U.S. ––––, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), to her case; (2) find her counsel was constitutionally ineffective during her plea and on appeal; and (3) conduct an evidentiary hearing.

II. DISCUSSION

A. Mandatory Minimum Sentence

At the time of Walker's sentencing in 2011, controlling Supreme Court precedent held that the Constitution permitted a judge to find, by a preponderance of the evidence, any fact that increased the mandatory minimum sentence for a crime. See Harris v. United States, 536 U.S. 545, 568–69, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002) ; accord United States v. Webb, 545 F.3d 673, 677 (8th Cir.2008). On June 13, 2013, the Supreme Court overruled Harris in Alleyne, holding that any fact that increases the mandatory minimum sentence must be submitted to a jury and found beyond a reasonable doubt. See Alleyne, 570 U.S. at ––––, 133 S.Ct. at 2155. Although Walker's direct appeal was final before the Supreme Court decided Alleyne, Walker asserts she is entitled to re-sentencing under Alleyne because, in her view, (1) "she suffered a plain error when the district court applied a preponderance of the evidence standard to increase her mandatory minimum"; (2) "Alleyne should apply retroactively"; and (3) she "was entitled to effective assistance of certiorari counsel both under federal statute and under the United States Constitution." Walker's arguments are unavailing.

1. Plain Error

Walker first claims she "is entitled to relief because it was plain error for the sentencing court to increase her mandatory minimum based on a fact found by [the district court by] the preponderance of the evidence"—the sentencing procedure authorized by Harris but subsequently overruled in Alleyne. See Fed.R.Crim.P. 52(b) ("A plain error that affects substantial rights may be considered even though it was not brought to the court's attention."). In claiming plain error, Walker fails to recognize " ‘the important distinction between direct review and collateral review.’ " Teague v. Lane, 489 U.S. 288, 307, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (plurality opinion) (quoting Yates v. Aiken, 484 U.S. 211, 215, 108 S.Ct. 534, 98 L.Ed.2d 546 (1988) ). "Because it was intended for use on direct appeal, ... the ‘plain error’ standard is out of place when a prisoner launches a collateral attack against a criminal conviction after society's legitimate interest in the finality of the judgment has been perfected ... by the affirmance of the conviction on appeal." United States v. Frady, 456 U.S. 152, 164, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982).

2. Retroactivity of Alleyne

Walker's collateral attack on her sentence—which became final on direct review before the decision in Alleyne —is governed by Teague. See Whorton v. Bockting, 549 U.S. 406, 416, 127 S.Ct. 1173, 167 L.Ed.2d 1 (2007) (explaining Teague "laid out the framework to" use in deciding if a rule announced in a Supreme Court opinion applies "retroactively to judgments in criminal cases that are already final on direct review"); Becht v. United States, 403 F.3d 541, 545 n. 3 (8th Cir.2005) (recognizing we generally must determine whether a petitioner's § 2255"motion is barred by the rule on retroactivity announced in Teague "). Under Teague, Supreme Court decisions that create "new constitutional rules of criminal procedure" generally do not apply "to those cases which have become final before the new rules are announced." Teague, 489 U.S. at 310, 109 S.Ct. 1060. "Teague stated...