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United States v. Clark

United States District Court, Tenth Circuit

September 23, 2013

ANTONIO CLARK, Defendant. Civil Action No. 12-2551-KHV


KATHRYN H. VRATIL, District Judge.

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. #538) filed August 23, 2012. For reasons stated below, the Court sets an evidentiary hearing on defendant's claim related to counsel's failure to appeal and otherwise overrules defendant's motion.

Factual Background

On May 18, 2011, before Magistrate Judge James P. O'Hara, defendant pled guilty to conspiracy to manufacture, to possess with intent to distribute, and to distribute 50 grams or more of cocaine base, in violation of 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(A)(ii), (b)(1)(A)(iii). Defendant's total offense level was 32, with a criminal history category III, resulting in a guideline range of 151 to 188 months.[1] The government recommended a sentence at the low end of the guideline range. On August 26, 2011, the Court sentenced defendant to 170 months in prison. Defendant did not appeal. Jack West represented defendant throughout this proceeding.

On August 23, 2012, defendant filed a pro se motion to vacate his sentence under 28 U.S.C. § 2255. Liberally construed, defendant's Section 2255 motion as supplemented by his reply asserts that Mr. West was ineffective because (1) he did not conduct any pretrial investigation, (2) during plea negotiations, he coerced defendant to plead guilty, advised defendant that the Court would sentence him to 120 months in prison and advised defendant to enter a plea agreement which waived his right to appeal and gave him no benefit, (3) he had a conflict of interest, (4) at sentencing, he did not object to the calculation of defendant's base offense level or seek a lower sentence under Amendment 750 to the Sentencing Guidelines, and did not file a motion for a downward departure as a "minor participant, " and (5) after sentencing, he did not file an appeal as instructed. Motion Under 28 U.S.C. § 2255 (Doc. #538) at 4; Memorandum Of Law (Doc. #542) at 5-6; Petitioner's Traverse To Government's Return (Doc. #556) at 6-7, 9.


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 that (1) the performance of counsel was deficient and (2) the deficient performance was so prejudicial that there is 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).

I. Failure To Conduct Pretrial Investigation (Claim 1)

Defendant argues that Mr. West was ineffective because he did not conduct any pretrial investigation. At the plea hearing, defendant conceded that the government had evidence that he committed the crime of conspiracy to manufacture, to possess with intent to distribute, and to distribute 50 grams or more of cocaine base. See Plea Agreement (Doc. #328) ¶ 2. Defendant has not cited any legal or factual defense to the charges or the evidence which the government outlined in the plea agreement.[2] Defendant apparently claims that counsel simply relied on information which the U.S. Attorney gave him and did not independently investigate the case. See Memorandum Of Law (Doc. #542) at 5. A decision not to investigate cannot be deemed reasonable if it is uninformed, see Hooper v. Mullin , 314 F.3d 1162, 1170-71 (10th Cir. 2002), but defendant has not shown that counsel's alleged decision was uninformed. Moreover, counsel may reasonably decide to rely on prior statements of witnesses to investigators. See Wilson v. Simmons , 536 F.3d 1064, 1136 (10th Cir. 2008). Defendant's conclusory allegations of inadequate pretrial preparation do not establish deficient performance and are insufficient to warrant an evidentiary hearing. See United States v. Kilpatrick , 124 F.3d 218, 1997 WL 537866, at *3 (10th Cir. Sept. 2, 1997) (allegations of ineffective assistance must be specific and particularized; conclusory allegations do not warrant hearing); Hatch v. Oklahoma , 58 F.3d 1447, 1457, 1471 (10th Cir. 1995) (same).

To show prejudice in the guilty plea context, defendant must show a reasonable probability that but for counsel's errors, he 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). As part of his proof, defendant must show that "a decision to reject the plea bargain would have been rational under the circumstances." Padilla v. Kentucky , 559 U.S. 356, 372 (2010) (citing Roe v. Flores-Ortega , 528 U.S. 470, 480, 486 (2000)). Defendant's mere assertion that he would have insisted on trial but for counsel's errors, although necessary, is ultimately insufficient to entitle him to relief. Miller , 262 F.3d at 1072; United States v. Gordon , 4 F.3d 1567, 1571 (10th Cir. 1993). Instead, the Court evaluates the factual circumstances surrounding the plea to predict "whether the outcome of the district court proceedings would have been different if his counsel had not committed the alleged errors." Clingman , 288 F.3d at 1186; see Miller , 262 F.3d at 1072 (court examines factual circumstances surrounding plea to determine whether petitioner would have proceeded to trial). While defendant need not show that he would have prevailed at trial, his prospects of succeeding inform the Court's view whether he in fact would have gone to trial absent the alleged errors. United States v. Triplett , 263 Fed.Appx. 688, 690 (10th Cir. 2008); see Clingman , 288 F.3d at 1186. The strength of the government's case is often the best evidence whether defendant in fact would have changed his plea and insisted on going to trial. See Hill , 474 U.S. at 59-60.

In light of the agreed factual basis set forth in the plea agreement, defendant has not shown a reasonable probability that but for counsel's alleged conduct, the results of the plea proceeding would have been different, i.e. that he would not have agreed to plead guilty. See United States v. Young , 206 Fed.Appx. 779, 785 (10th Cir. 2006); Rantz , 862 F.2d at 810-11. Defendant also cannot establish prejudice because he significantly delayed seeking to vacate his plea until after the Court imposed a sentence of 170 months in prison. In the context of a motion to withdraw a guilty plea before sentencing, the Court considers whether defendant delayed in filing the motion.[3] Indeed, delays of three months or more tend to suggest manipulation by defendant. See Carr , 80 F.3d at 420 (delay of three months); Vidakovich , 911 F.2d at 439 (delay of five months). The District of Columbia Circuit has noted as follows:

Even where the plea was properly entered..., the standard for judging the movant's reasons for delay remains low where the motion comes only a day or so after the plea was entered.... A swift change of heart is itself strong indication that the plea was entered in haste and confusion; furthermore, withdrawal shortly after the event will rarely prejudice the Government's legitimate interests. By contrast, if the defendant has long delayed his withdrawal motion, and ...

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