Welch v. United States

• Decision Date: 09 April 2014
• Docket Number: 2:10-cv-8052-JHH-JHE,2:07-cr-0394-JHH-JHE
• Parties: LARRY CHARLES WELCH, Movant, v. THE UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Northern District of Alabama

LARRY CHARLES WELCH, Movant, v. THE UNITED STATES OF AMERICA, Respondent.

2:10-cv-8052-JHH-JHE

2:07-cr-0394-JHH-JHE

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

DONE: April 9, 2014

MEMORANDUM OPINION

The court has before it the November 23, 2010 Motion (Doc. #1) to Vacate, Set Aside, or Correct a Sentence, brought by Larry Charles Welch, pursuant to 28 U.S.C. § 2255. After careful consideration of all the briefs and evidence presented by the parties, the Motion (Doc. #1) is due to be denied for the following reasons.

I. PROCEDURAL HISTORY

Movant Larry Charles Welch was convicted in this court on December 5, 2007, of the following three counts: one count of possession with intent to distribute fifty grams or more of a mixture and substance of cocaine base and an amount of marijuana, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A), and (b)(1)(D)(Count 1); one count of carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(Count 2); and one count of being a felon in possession of a firearm, in violation of 18 U.S.C. §922(g)(1)(Count 3). He was sentenced on April 2, 2008, to a total sentence of 420 months, to be followed by a 120-month term of supervised release.

On appeal, Welch argued that the evidence was insufficient to support his convictions, and that his sentence is unreasonable because it is greater than necessary to satisfy the requirements of 18 U.S.C. § 3553(a). The Eleventh Circuit Court of Appeals affirmed his conviction and sentence on June 1, 2009, United States v. Welch, 330 Fed. Appx. 859 (11^th Cir. 2009), and denied his application for rehearing en banc on July 27, 2009, United States v. Welch, 349 Fed. Appx. 534 (11^th Cir. 2009)(table). The United States Supreme Court denied Welch's petition for a writ of certiorari on December 7, 2009, Welch v. United States, 558 U.S. 1082 (2009) and denied his petition for rehearing on February 22, 2010, Welch v. United States, 559 U.S. 964 (2010).

II. CLAIMS PRESENTED

In support of his Motion to Vacate, Welch makes the following

1. He received ineffective assistance of counsel at trial because counsel:

a. failed "to conduct an adequate investigation. Counsel failed to interview crucial witnesses, properly inspect the crime scene, and file motions to both suppress and exclude damaging evidence";

b. failed "to oppose the repeated playing of the 911 recording on the basis that it created a bad man inference, and therefore the unfair prejudice outweighed the probative value";

c. failed "to oppose the introduction of the 911 recording without the testimony of the actual 911 operator as being aviolation of the confrontation and cumpulsory [sic] clauses of the sixth amendment";

d. failed "to oppose the introduction of the gun and drugs into evidence on the basis that there was no established chain of custody";

e. failed "to adequately cross examine the two police officers who first arrived at the scene"; and

f. failed "to oppose the Court's instruction to the Jury that they must continue to deliberate even though they had already exhausted all attempts at unanimity and were at a total impasse";

2. he received ineffective assistance of counsel at sentencing because counsel:

a. made "prejudicial statement within the sentencing memorandum to the effect that the petitioner is guilty of the charged crimes";

b. failed "to oppose the improper stacking/grouping of the sentences that resulted in a sentence that was 10-years greater than otherwise necessary";

3. he received ineffective assistance of counsel on appeal because counsel failed "to raise claim that District Court committed reversible error by failing to assure that the petitioner was afforded his right of allocution";

4. "the totality of the circumstances [and] the cumulative effect of counsel's errors amounts [sic] to constitutionally ineffective assistance of counsel";

5. there is newly discovered evidence that establishes that he is actually innocent of the charges;

6. he is challenging two of his prior state court convictions in state court, and if he succeeds in overturning them, he will be actually innocent of being an armed career criminal in this case; and7. the consecutive sentence imposed pursuant to 18 U.S.C. § 924(c)(1)(A) is unauthorized because he also faced a greater mandatory minimum sentence under some other provision of law.

(Doc. # 1).

On April 10, 2012, Welch amended his motion to vacate, raising the following claim:

8. he received ineffective assistance of counsel during the pre-trial phase because counsel failed "to even attempt to negotiate a plea agreement on Welch's behalf" and failed to "properly advise him in regards to his chances of success at trial, and the sentence he likely faced if he lost, as opposed to that he would receive if he entered into a plea agreement with the government or entered a naked plea with the court, in light of the Supreme Court's recent holdings in Lafler and Frye."

(Doc. # 7).

In response to the court's orders to show cause, the respondent filed answers to both the original motion and the amendment, in which it maintains that the motion to vacate is due to be denied.¹ (Docs. # 4, 10.) By orders of the court, the parties were advised that the respondent's answers would be treated as a motion for summary dismissal. The movant was advised that in responding to the motions for summary dismissal, he must supply the court with counter affidavits and/or documents to set forth specific facts showing that there are genuine issues of material fact to be decided. In response, the movant has filed traverses and affidavits. (Docs. # 6, 12, and 12-1.)

III. ANALYSIS

The court begins its analysis by discussing Welch's claims of ineffective assistance of counsel at trial, sentencing, and on appeal. The court then discusses Welch's claim of actual innocence. Third, the court considers Welch's claim regarding his prior state court convictions. Fourth, the court discusses Welch's claim that the sentence imposed under 18 U.S.C. § 924(c)(1)(A) was unauthorized. Finally, the court addresses Welch's amendment to his Motion to Vacate, that counsel was ineffective in the pre-trial stage.

A. Ineffective Assistance of Counsel (Claims 1-4)

The United States Supreme Court established a national standard for judging the effectiveness of criminal defense counsel under the Sixth Amendment. "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result." Strickland v. Washington, 466 U.S. 668 (1984). The Court elaborated:

A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Strickland, 466 U.S. at 687. "Because the [petitioner] must prove both deficiency and prejudice, a [petitioner's] failure to prove either will be fatal to his claim." Johnson v. Scott, 68 F.3d 106, 109 (5^th Cir. 1995).

Under the Strickland test, the petitioner must initially show that counsel's representation fell below an "objective standard of reasonableness." Strickland, 466 U.S. at 688. "While it need not be errorless, counsel's advice 'must be within the realm of competence demanded of attorneys representing criminal defendants.'" Jones v. White, 992 F.2d 1548, 1557 (11^th Cir. 1993)(quoting Stano v. Dugger, 921 F.2d 1125, 1151 (11^th Cir.)(en banc), cert. denied, 502 U.S. 835 (1991)). In making such an evaluation, "the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, 466 U.S. at 690. The effectiveness or ineffectiveness of counsel must be evaluated by consideration of the totality of the circumstances. Stanley v. Zant, 697 F.2d 955, 962 (11^th Cir. 1983), cert. denied, 467 U.S. 1219 (1984).

The second requisite element in a claim of ineffective assistance of counsel is a showing of prejudice. Even if counsel made an error so egregious as to be outside the broad scope of competence expected of attorneys, a movant can obtain relief only if the error caused actual prejudice. Strickland, 466 U.S. at 691-92. In order to establish actual prejudice, a petitioner must show that "there is a reasonable probability that but for the attorney's unprofessional errors, the result of the proceeding would have been different." Armstead v. Scott, 37 F.3d 202, 207 (5^th Cir. 1994). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceedings. Strickland, 466 U.S. at 694. Furthermore, in addition to showing that the outcome would have been different, apetitioner must prove that "counsel's deficient performance caused the outcome to be unreliable or the proceeding to be fundamentally unfair." Armstead v. Scott, 37 F.3d 202, 207 (5^th Cir. 1994)(citing Lockhart v. Fretwell, 113 S. Ct. 838, 844 (1993)). "In other words, a 'counsel's unprofessional errors [must] so upset the adversarial balance between the defense and prosecution that the trial was rendered unfair and the verdict suspect.'" Weekley v. Jones, 56 F.3d 889, 897 (8^th Cir. 1995)(quoting Fretwell, 113 S. Ct. at 842). "Unreliability or unfairness does not result if the ineffectiveness of counsel does not deprive the defendant of any substantive or procedural right to which the law entitles him." Fretwell, 113 S. Ct. at...