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United States v. Young

United States District Court, Tenth Circuit

August 23, 2013

UNITED STATES OF AMERICA, Plaintiff,
v.
TANISHA YOUNG, Defendant. Civil Action No. 12-2487-KHV

MEMORANDUM AND ORDER

KATHRYN H. VRATIL, District Judge.

Defendant pled guilty to conspiracy to manufacture, to possess with intent to distribute and to distribute 50 grams or more of cocaine base. On July 12, 2011, the Court sentenced defendant to 97 months in prison. This matter is before the Court on defendant's Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody (Doc. #536) filed July 30, 2012 and defendant's Motion Requesting The District Court To Allow Resentencing Pursuant To 18 U.S.C. § 3582(c)(2) As Revised By Amendment 706 & Amendment 750 Under The Fair Sentencing Act of 2010 #1789 (Doc. #571) filed May 13, 2013. For reasons set forth below, the Court overrules defendant's motions.[1]

Analysis

I. Motion To Vacate Sentence Under 28 U.S.C. § 2255 (Doc. #536)

Mark A. Thomason represented defendant throughout this proceeding. Liberally construed, defendant's Section 2255 motion alleges that Mr. Thomason was ineffective because (1) he did not explain the proceedings so that she could understand them, (2) he did not advise the Court that she was not competent to proceed because of a learning disability, (3) he did not secure a better plea agreement or Rule 35 motion based on information which she provided law enforcement about Antonio Clark, (4) he advised her to plead guilty without telling her the name of any government informant against her, (5) he did not object to government use of information which agents obtained in violation of her right against self incrimination, (6) he did not seek dismissal of Count 1 for lack of evidence, (7) he did not object to a two-level enhancement for use of a minor in the offense, and (8) he did not consult her about a possible appeal.[2]

The standard of review of Section 2255 petitions is quite stringent. The Court presumes that the proceedings which led to defendant's conviction were correct. See Klein v. United States , 880 F.2d 250, 253 (10th Cir. 1989). To prevail, defendant must show a defect in the proceedings which resulted in a "complete miscarriage of justice." Davis v. United States , 417 U.S. 333, 346 (1974).

To establish ineffective assistance of counsel, defendant must show (1) that the performance of counsel was deficient and (2) a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington , 466 U.S. 668, 687, 694 (1984). To meet the first element, i.e. counsel's deficient performance, defendant must establish that counsel "made errors so serious that counsel was not functioning as the counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687. In other words, defendant must prove that counsel's performance was "below an objective standard of reasonableness." United States v. Walling , 982 F.2d 447, 449 (10th Cir. 1992). The Supreme Court recognizes, however, "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland , 466 U.S. at 689; see United States v. Rantz , 862 F.2d 808, 810 (10th Cir. 1988). As to the second element, the Court must focus on the question "whether counsel's deficient performance render[ed] the result of the trial unreliable or the proceeding fundamentally unfair." Lockhart v. Fretwell , 506 U.S. 364, 372 (1993).

A. Failure To Explain Court Proceedings Or To Inform Court Of Her Learning Disability (Claims 1, 2)

Defendant argues that counsel was ineffective because he did not explain court proceedings in terms that she could understand or inform the Court that she was not competent to proceed in light of her learning disability. Defendant has not alleged that she expressed to counsel or the Court that she had difficulty understanding or communicating about the issues in this case. Nothing in the record suggests that defendant did not fully understand the proceedings including her guilty plea and sentencing.[3] Defendant also has not alleged facts which establish that if counsel had explained the issues differently or that if he had informed the Court that defendant was not competent to proceed, the result likely would have been different.[4] The Court overrules defendant's claims that counsel was ineffective because he did not adequately explain the proceedings in this case or inform the Court that defendant was not competent.

B. Failure To Secure Better Plea Agreement Or Rule 35 Motion (Claim 3)

Defendant claims that counsel was ineffective because he did not secure a better plea agreement or Rule 35 motion based on the information which she provided law enforcement about Antonio Clark. Defendant claims that she received a 48-month reduction for her assistance related to Fabian Dunbar, but that she did not receive any reduction for her assistance related to Clark. At sentencing, the Court sustained the government's motion to reduce defendant's sentence by four levels under U.S.S.G. § 5K1.1, which corresponded to a reduction of 54 to 91 months under the sentencing guidelines.[5] Defendant has not shown that counsel's performance was deficient or prejudicial. Based on the Court's review of the government's sealed motion (Doc. #436) and the government's representation in its response brief (Doc. #546), defendant received credit for her assistance related to multiple individuals including Clark.[6]

To establish deficient performance, defendant must establish that counsel "made errors so serious that counsel was not functioning as the counsel' guaranteed the defendant by the Sixth Amendment." Strickland , 466 U.S. at 687. Strickland, however, mandates that the Court be "highly deferential" in its review of counsel's performance and "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. The Court must not second guess counsel's assistance with the benefit of hindsight simply because defendant did not receive a greater reduction of her sentence for substantial assistance. See id. The Court therefore overrules defendant's third claim for relief.

C. Advice To Plead Guilty Without Disclosing Informant (Claim 4)

Defendant claims that counsel was ineffective because he advised her to plead guilty without telling her the name of any government informant against her. Defendant has not shown that the government had such an informant. Even if the Court assumes that counsel's performance was deficient in failing to advise defendant about an informant or lack of an informant, defendant has not alleged or shown prejudice. In particular, defendant has not alleged or shown a reasonable probability that if she had had full knowledge of any government informant, she would not have pled guilty and would have insisted on going to trial. See Hill v. Lockhart , 474 U.S. 52, 59 (1985); United States v. Clingman , 288 F.3d 1183, 1186 (10th Cir. 2002); Miller v. Champion , 262 F.3d 1066, 1068-69 (10th Cir. 2001). Specifically, defendant does not assert that "a decision to reject the plea bargain would ...


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