United States v. Holley

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          HONORABLE MARK E. FORD UNITED STATES MAGISTRATE JUDGE.

         Before the Court is the Defendant's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody filed June 4, 2018. (ECF No. 282). The United States filed its Response on July 24, 2018. (ECF No. 300). Despite obtaining leave and an extension of time to file a reply (ECF No. 303), the Defendant has not filed a reply. The matter is ready for Report and Recommendation.

         I. Background

         On July 26, 2017, a multi-party, multi-count Indictment was issued charging the Defendant, Julia Nicole Holley (“Holley”), with conspiracy to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 846 (Count One), and two counts of using a communication facility, namely a cell phone, in committing, causing and facilitating a felony drug offense, in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 843(b) (Counts Thirteen and Fourteen). (ECF No. 1). Holley was arrested on August 18, 2017 (ECF No. 74), and she appeared for arraignment on August 21, 2017, at which time she entered a not guilty plea to the Indictment. (ECF No. 30). The Court appointed Christy Comstock (“Comstock”), a CJA Panel attorney, to represent Holley. (ECF No. 30; Text Only Order entered August 21, 2017). Comstock requested discovery in open court on behalf of Holley. (ECF No. 30).

         On October 13, 2017, Holley appeared before the Hon. Mark E. Ford, Magistrate Judge, for a change of plea hearing. (ECF No. 99). Pursuant to a written Plea Agreement (ECF No. 100), Holley pleaded guilty to Count One of the Indictment charging her with conspiracy to distribute methamphetamine. (ECF No. 99). A Report and Recommendation that Holley's guilty plea be accepted and the Plea Agreement tentatively approved, subject to final approval at sentencing, was filed on October 13, 2017. (ECF No. 102). An Order adopting the Report and Recommendation in toto was entered by the Hon. P. K. Holmes, III, Chief District Judge, on October 17, 2017. (ECF No. 106).

         An Initial Presentence Investigation Report (“PSR”) was prepared by the United States Probation Office on December 12, 2017. (ECF No. 158). On December 22, 2017, both Holley and the Government advised that they had no objections to the PSR. (ECF Nos. 167, 170).

         On December 27, 2017, a Final PSR was submitted to the Court. (ECF No. 171). The Final PSR determined that Holley was accountable for 184.27 grams of a mixture of methamphetamine and, as a result, Holley's Base Offense Level was determined to be 24. (ECF No. 171, ¶¶ 50, 55). This was decreased two levels for specific offense characteristics because Holley met the “safety valve” requirements of U.S.S.G. § 5C1.2 (ECF No. 171, ¶¶ 50, 56), resulting in an Adjusted Offense Level of 22 (ECF No. 171, ¶ 60). After a three level reduction for acceptance of responsibility, Holley's Total Offense Level was determined to be 19. (ECF No. 171, ¶¶ 62-64). Holley's criminal history resulted in a total criminal history score of zero, placing her in Criminal History Category I. (ECF No. 171, ¶ 73). The statutory maximum term of imprisonment for the offense of conviction is 20 years. (ECF No. 171, ¶ 106). Based upon a Total Offense Level of 19 and a Criminal History Category of I, Holley's advisory guideline range was determined to be 30 to 37 months imprisonment. (ECF No. 171, ¶ 107).

         Holley appeared for sentencing on March 1, 2018. (ECF No. 261). The Court made inquiry that Holley was satisfied with her counsel, final approval of the Plea Agreement was expressed, and the Court imposed a below-guidelines sentence of 18 months imprisonment, three years supervised release, no fine, and a $100.00 special assessment. (Id.). Judgment was entered by the Court on March 1, 2018. (ECF No. 266). The Court's Statement of Reasons set forth that the Court adopted the PSR without change; that no count of conviction carries a mandatory minimum sentence; that the Court departed below the guideline range upon the government's motion for departure for Holley's substantial assistance; and, that the Court determined a downward variance was warranted due, in part, to the history and characteristics of the Defendant. (ECF No. 267).

         Holley did not pursue a direct appeal from the Judgment.

         On June 4, 2018, Holley filed her pro se Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (the “Motion”). (ECF No. 282). The Motion raises four grounds for relief, all being claims of ineffective assistance of counsel: (1) counsel was ineffective at the pre-trial stage when she failed to investigate affirmative defenses, failed to ensure that Holley understood all of the elements of the offenses, failed to investigate and/or explain lesser-included offenses, failed to provide Holley with copies of all relevant documents, and failed to properly explain all options so Holley could participate in her defense (ECF No. 282, p. 4); (2) counsel was ineffective at the plea stage when she failed to ensure that Holley received the benefit of the bargain she made with the government, failed to explain that a plea agreement is governed by contract law and that it could be negotiated, and that the Plea Agreement did not contain protections against use of her proffer information against her but did contain a waiver of documents that she would have never agreed to (Id., p. 6); (3) counsel was ineffective at sentencing when she failed to raise affirmative defenses, i.e., first offender treatment, failed to raise minimal or minor role adjustment, failed to present a fully developed plan for drug treatment, failed to ensure protected information was not used to calculate Holley's guidelines range, and failed to raise all sentencing arguments (Id., p. 7); and, (4) counsel was ineffective at the appeal stage when she failed to consult with Holley concerning an appeal and did not file a notice of appeal (Id., p. 8).

         The United States' Response to the Motion was filed on July 24, 2018. (ECF No. 300). Holley 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 Holley's § 2255 Motion and the files and records of this case conclusively shows that Holley is not entitled to relief, and the denial and dismissal of her § 2255 Motion with prejudice without an evidentiary hearing is recommended.

         A. Legal Standard for Ineffective Assistance of Counsel Claims

         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).

         B. Validity and Effect of Holley's Guilty Plea

         Holley unconditionally pleaded guilty to the offense 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 Tollett v. Henderson, 411 U.S. 258, 266 (1973). As the Court in Tollett eloquently observed:

“. . . a guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advise he received from counsel was not within the standards set forth in McMann^[1].

A guilty plea, voluntarily and intelligently entered, may not be vacated because the defendant was not advised of every conceivable constitutional plea in abatement he might have to the charge . . . And just as it is not sufficient for the criminal defendant seeking to set aside such a plea to show that his counsel in retrospect may not have correctly appraised the constitutional significance of certain historical facts, (internal citation omitted) it is likewise not sufficient that he show that if counsel had pursued a certain factual inquiry such a pursuit would have uncovered a possible constitutional infirmity in the proceedings.” Id. at 267. (Emphasis added.)

         The rationale and ruling of Tollett, while a decision concerning a state prisoner's habeas claims, has been adopted by the Eighth Circuit for application to motions made by federal prisoners under 28 U.S.C. § 2255. See Bass, 739 F.2d at 406.

         The standard for determining the validity of a guilty plea remains whether it “represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.” North Carolina v. Alford, 400 U.S. 25, 31 (1970), citing Boykin v. Alabama, 395 U.S. 238, 242 (1969), Machibroda v. United States, 368 U.S. 487, 493 (1962), and Kercheval v. United States, 274 U.S. 220, 223 (1927). “While a guilty plea taken in open court is not invulnerable to collateral attack in a post conviction proceeding, the defendant's representations during the plea-taking carry a strong presumption of verity and pose a ‘formidable barrier in any subsequent collateral proceedings.'” Nguyen v. United States, 114 F.3d 699, 703 (8th Cir. 1997) (quoting Voytik v. United States, 778 F.2d 1306, 1308 (8th Cir. 1985)). A defendant has a heavy burden to overcome those admissions and show that his guilty plea was involuntary. See Blackledge v. Allison, 431 U.S. 63, 72-74 (1977).

         In the present case, Holley was represented by experienced defense counsel, Christy Comstock, a CJA Panel attorney, throughout the criminal proceedings. Prior to the change of plea hearing, Comstock had represented Holley at the arraignment (ECF No. 30); she requested discovery on the record at arraignment in compliance with the Court's Pretrial Scheduling Order (ECF No. 40); ...