United States v. Hunt

          MEMORANDUM OPINION AND ORDER

          RICHARD H. KYLE United States District Judge

         This matter is before the Court on Defendant's July 12, 2016, Motion to Vacate, Set Aside or Correct Sentence, brought under 28 U.S.C. Section 2255. (Doc. No. 409). Defendant's Motion will be denied, for the reasons discussed below.

         PROCEDURAL AND FACTUAL HISTORY

         A Superseding Indictment filed on November 18, 2014, charged Defendant and ten others with conspiracy to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846, as well as three separate counts of distribution of methamphetamine against Defendant specifically, in violation of 21 U.S.C. §§ 841(a)(1) and 841 (b)(1)(A). (Doc. No. 109.) On February 18, 2015, Defendant pleaded guilty pursuant to a plea agreement. In the plea agreement, Defendant admitted to the charge of methamphetamine conspiracy and certain acts in support of that illicit agreement and understanding. (Doc. No. 159, ¶¶ 2(a)-(b).) In exchange for Defendant's plea of guilty, the Government agreed that it would not seek a superseding indictment or otherwise pursue charging Defendant with additional drug distribution or drug conspiracy counts resulting from its investigation. (Doc. No. 159, ¶ 1.) Furthermore, as part of the resolution the Government also agreed to forego filing an enhancement pursuant to 21 U.S.C. § 851, which otherwise would have increased Defendant's mandatory minimum sentence to twenty years. Id. Defendant acknowledged in the plea agreement that the potential United States Advisory Guidelines ranges of either 121-151 or 140-175 months imprisonment could apply, depending upon a final determination of his criminal history category. (Doc. No. 159, ¶ 6.g.) Notwithstanding any determination under the Advisory Guidelines, Defendant agreed that he was subject to a statutory mandatory minimum penalty of ten years. Id.

         Finally, the parties “waive[ed] all rights conferred by Title 18, United States Code, Section 3742, to appeal the sentence on any ground except Defendant may appeal the sentence if the period of confinement imposed is greater than 175 months and the Government may appeal the sentence if the period of confinement imposed is less than 121 months.” Id. at ¶ 10. As part of this specific provision in the plea agreement, Defendant acknowledged that “he has discussed these rights with [his] attorney. Defendant understands the rights being waived, and Defendant waives these rights knowingly, intelligently, and voluntarily.” Id.

         The Pre-Sentence Investigation Report (“PSR”) ultimately determined Defendant's Guidelines range was 140-175 months' imprisonment. (PSR, ¶ 150; Doc. No. 295 at 1.) Both in written pre-sentencing submissions and during the sentencing hearing, Defendant urged the Court to depart or vary downward and find that a lesser criminal history category was applicable pursuant to United States Sentencing Guidelines Section 4A1.3(b). Specifically, Defendant argued that the category of V as determined in the PSR overrepresented the seriousness of his criminal history and the likelihood that he would reoffend, and that with a lesser criminal history category IV the applicable Guidelines range was 120 to 151 months imprisonment. (Sent. Tr. 4-5, 7-9.) The Court did not make a specific ruling either granting or denying Defendant's motion. Instead, the Court determined that “[a]s I look at the factors in 3553(a), I think a sentence that fits there and is sufficient but not greater than necessary is 140 months.” (Sent. Tr. 10.) The Court sentenced Defendant accordingly.

         Thus, the Court's sentence of 140 months was at the bottom of the applicable advisory Guidelines range. After imposing various sentencing terms, the Court also addressed the plea waiver in the plea agreement. First, the Court explained that “in paragraph 10 of the plea agreement you agreed not to appeal your sentence unless that sentence exceeded 175 months in prison. Obviously this sentence is not above 175, so in my view you have given up, by that plea agreement, your right to appeal or challenge the sentence.” (Sent. Tr. 14.)

         Still, the Court explained his right to be represented during an appropriate appeal, but reiterated its position with regard to Defendant's waiver. “Now, having said all of that, I'll go back to what I said at the outset. In my view you do not have that right.” Id. at 15. The Court also instructed his counsel that “I don't know whether you have previously covered with your client his appeal rights or lack of appeal rights; but if you have not, I would ask that you also do so.” Id.

         Defendant appealed despite his written waiver. His only claim on appeal was that this Court erred because it did not grant his § 4A1.3(b) motion regarding his criminal history and consequently give him a lesser sentence. The Eighth Circuit granted the Government's motion to dismiss his appeal in light of the appeal waiver. Defendant timely filed the instant Motion on July 12, 2016. (See Doc. No. 409.)

         I. Defendant's Habeas Claims

         Defendant's 28 U.S.C. § 2255 pleading briefly describes four separate claims. First he makes two separate claims of ineffective assistance. Id. at 4-12. As to both, he maintains that but for that ineffective assistance there is a “reasonable probability” he would have received a lesser sentence. Id. Second, he argues this Court violated Fed. R. Crim. P. 32 and his Due Process rights at sentencing. Finally, Defendant claims the Government breached the plea agreement and committed prosecutorial misconduct. Id. at 13. On October 19, 2016, the Government responded to each of these claims. Doc. No. 443. Defendant in turn submitted supplemental pleadings, which once again reiterate his original claims. See Doc. Nos. 446-448.^[1]

         II. ANALYSIS

         A. General Principles

         To prevail on a motion filed under § 2255, a petitioner must show that his challenge raises a “fundamental defect which results in a complete miscarriage of justice.” Davis v. United States, 417 U.S. 333, 346 (1974). Section 2255 relief is extraordinary; consequently, it “is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and, if uncorrected, would result in a complete miscarriage of justice.” United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996). Thus, § 2255 “does not encompass all claimed errors in conviction and sentencing.” Sun Bear v. United States, 644 F.3d 700, 704 (8th Cir. 2011) (en banc) (quoting United States v. Addonizio, 442 U.S. 178, 185 (1979)). Rather, it encompasses jurisdictional and constitutional errors. Id. Beyond that, its scope is “severely limited.” Id. “[A] miscarriage of justice cognizable under § 2255 occurs when the sentence is in excess of that authorized by law.” Id. at 706.

         An evidentiary hearing on a § 2255 motion must be granted unless the motion, files and records of the case establish conclusively that the petitioner is not entitled to relief. Kingsberry v. United States, 202 F.3d 1030, 1032 (8th Cir. 2000). But “[n]o hearing is required where the claim ‘is inadequate on its face or if the record affirmatively refutes the factual assertions upon which it is based.'” Watson v. United States, 493 F.3d 960, 963 (8th Cir. 2007) (quoting Shaw v. United States, 24 F.3d 1040, 1043 (8th Cir. 1994).

         B. Defendant Has Failed to Show that His Defense Counsel Was Ineffective

         1. Counsel Cascarano Properly Represented ...