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United States v. Charlton

United States District Court, W.D. Arkansas, Harrison Division

July 6, 2018

UNITED STATES OF AMERICA PLAINTIFF
v.
DAMON WAYNE “DEE” CHARLTON DEFENDANT

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          HON. MARK E. FORD, UNITED STATES MAGISTRATE JUDGE

         Before the Court is the Defendant's Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 filed on April 23, 2018. (ECF No. 128). The United States filed its response on June 19, 2018. (ECF No. 140). Defendant did not file a reply. The matter is ready for report and recommendation.

         I. Background

         On October 5, 2016, the Defendant, Damon Wayne “Dee” Charlton (“Charlton”)[1], was named in an Indictment charging him with conspiracy to distribute methamphetamine (Count I), and two counts of use of a communications facility, namely, a cell phone, in committing, causing and facilitating a felony drug offense, namely, the distribution of methamphetamine (Counts III and IV). (ECF No. 1). Charlton was arrested on October 27, 2016, and he appeared for arraignment on October 31, 2016, at which time he entered a not guilty plea to the Indictment. (ECF No. 13). Phillip A. Moon (“Moon”), a CJA Panel attorney, was appointed to represent Charlton. (ECF No. 13, Text Only Minute Entry; and, Text Only Order appointing counsel entered October 31, 2016).

         On December 29, 2016, Charlton appeared with counsel before the Hon. P. K. Holmes, III, Chief United States District Judge, for a change of plea hearing. (ECF No. 53). A written Plea Agreement (ECF No. 54) was presented to the Court, and Charlton pleaded guilty to Counts III and IV of the Indictment charging him with use of a communications facility, namely, a cell phone, in committing, causing and facilitating a felony drug offense, namely, the distribution of methamphetamine. The Court tentatively approved the Plea Agreement and ordered a Presentence Investigation Report (“PSR”). (ECF No. 53).

         An initial PSR was prepared by the United States Probation Office on July 27, 2017. (ECF No. 67). On August 7, 2017, the Government advised that it had no objections to the PSR. (ECF No. 76). On August 9, 2017, Charlton advised that he had no objections to the PSR. (ECF No. 79).

         On August 15, 2017, a final PSR was submitted to the Court. (ECF No. 82). The final PSR determined that Charlton was accountable for 1.06 kilograms of a mixture of methamphetamine. (ECF No. 82, ¶¶ 46, 47). Based on that drug quantity, Charlton's base offense level was determined to be 30. (ECF No. 82, ¶ 52). After a three-level reduction for acceptance of responsibility, Charlton's total offense level was determined to be 27. (ECF No. 82, ¶¶ 59-61). Charlton had a criminal history score of two, placing him in criminal history category II. (ECF No. 82, ¶ 78). The statutory maximum term of imprisonment on each count is four years. (ECF No. 82, ¶ 107). Based upon a total offense level of 27 and a criminal history category of II, Charlton's advisory guidelines range was determined to be 78 to 97 months imprisonment; however, the statutory authorized maximum is 48 month on each count, for a total of 96 months. Therefore, the guidelines imprisonment range is 78 to 96 months. If the sentence imposed on the count carrying the highest maximum is less than the total punishment, then the sentence imposed on one or more of the other counts shall run consecutively, but only to the extent necessary to produce a combined sentence equal to the total punishment. (ECF No. 82, ¶ 108).

         Charlton appeared for sentencing on November 7, 2017. (ECF No. 108). The Court made inquiry that Charlton was satisfied with his counsel; the PSR was reviewed and adopted; the Government's motion for a two-level downward departure for substantial assistance was granted; final approval of the Plea Agreement was expressed; Charlton and his counsel were afforded the opportunity to speak and make a statement; and, the Court imposed a guidelines sentence of 48 months imprisonment for Count III, then 15 months imprisonment for Count IV, to run consecutively, one year supervised release on each count, to run concurrently, no fine, and a $200.00 special assessment. (ECF No. 108). Judgment was entered by the Court on November 7, 2017. (ECF No. 113).

         Charlton did not pursue a direct appeal from the Judgment.

         On April 23, 2018, Charlton filed his pro se Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (the “motion”). (ECF No. 128). The motion sets forth four grounds for relief: (1) ineffective assistance of counsel for failing to object to Counts III and IV because neither count alleges the names of both participants and some sort of statement of what was being facilitated with the controlled substance which constitutes a felony; (2) ineffective assistance of counsel for failing to explain that using a telephone to determine the location of money to be paid for narcotics (Count III) and whether the sale of narcotics has been made (Count IV) is not an act facilitating the commission of a narcotics offense, and for advising him to plead guilty to these charges in light of this deficiency in the Government's proof; (3) ineffective assistance of counsel for failing to object to the Government's failure to prove conspiracy to distribute methamphetamine, an essential element of the § 843(b) charges, and for counseling Charlton to plead guilty to these charges in the face of this deficit in proof; and, (4) ineffective assistance of counsel for failing to argue that Counts III and IV should be grouped together under U.S.S.G. § 3D1.2 for purposes of sentencing. (ECF No. 128, p. 3). The United States' response to the motion was filed on June 19, 2018. (ECF No. 140). Charlton did not file a reply.

         II. Discussion

         “A prisoner in custody under sentence . . . claiming the right to be released upon 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, may move the court which imposed the sentence to vacate, set aside or correct the sentence.” 28 U.S.C. § 2255(a). “If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.” 28 U.S.C. § 2255(b). A thorough review of Charlton's § 2255 motion and the files and records of this case conclusively shows that Charlton is not entitled to relief, and the undersigned recommends the denial and dismissal of his § 2255 motion with prejudice without an evidentiary hearing.

         A. Timeliness

         A one year period of limitation applies to motions under 28 U.S.C. § 2255. This period runs from the latest of: (1) the date on which the judgment of conviction becomes final; (2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action; (3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or, (4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence. 28 U.S.C. § 2255(f).

         An un-appealed criminal judgment becomes final when the time for filing a direct appeal expires. Anjulo-Lopez v. United States, 541 F.3d 814, 816 n. 2 (8th Cir. 2008). The Judgment in this case was entered on November 7, 2017. (ECF No. 113). Had Charlton wished to file an appeal, he was required to do so within 14 days. See Fed. R. App. P. 4(b)(1)(A)(i). Charlton did not file an appeal, and his conviction thus became final on November 21, 2017. See Murray v. United States, 313 Fed.Appx. 924 (8th Cir. 2009). From that date, Charlton had one year, or until November 21, 2018, to timely file a § 2255 habeas petition. Charlton filed his § 2255 motion on April 23, 2018, well within the one year limitations period.

         B. Ineffective Assistance of Counsel Claims

         1. Standard of Review

         To prove a claim of ineffective assistance of counsel, a criminal defendant must demonstrate both that counsel's performance was deficient, and that counsel's deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish the deficient performance prong of the Strickland test, one must show that counsel's representation fell below the “range of competence demanded of attorneys in criminal cases.” Id. at 688. Review of counsel's performance is highly deferential, and there is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id. at 689. Moreover, “[s]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.” United States v. Rice, 449 F.3d 887, 897 (8th Cir. 2006) (quoting Strickland, 466 U.S. at 690). Courts also “do not use hindsight to question counsel's performance, ” but instead must analyze it according to counsel's situation at the time of the allegedly incompetent act or omission. Kenley v. Armontrout, 937 F.2d 1298, 1303 (8th Cir. 1991). If one fails to establish deficient performance by counsel, the court need proceed no further in its analysis of an ineffective assistance of counsel claim. United States v. Walker, 324 F.3d 1032, 1040 (8th Cir. 2003).

         To establish the prejudice prong of the Strickland test, one must demonstrate “that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. The United States Supreme Court has clarified that the proper prejudice analysis is whether “counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Lockhart v. Fretwell, 506 U.S. 364, 369 (1993) (quoting Strickland, 466 U.S. at 687).

         2. Effect of Charlton's Guilty Pleas

         Charlton pleaded guilty to the two offenses of conviction. When a guilty plea is entered by the movant, the focus of a collateral attack must remain limited to the nature of counsel's advice and the voluntariness of the guilty plea. Bass v. United States, 739 F.2d 405, 406 (8th Cir. 1984) (citing Tol ...


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