United States District Court, D. Kansas
MEMORANDUM AND ORDER
KATHRYN H. VRATIL, District Judge.
On April 30, 2013, the Court sentenced defendant to 168 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. #354) filed January 17, 2014. For reasons stated below, the Court overrules defendant's motion and denies a certificate of appealability.
On September 6, 2012, a grand jury returned an 11-count indictment which, in part, charged defendant with conspiracy to distribute and possess with intent to distribute more than 50 grams of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(viii) and 18 U.S.C. § 2, and lease, rent, use and maintain residences for distributing and using methamphetamine in violation of 21 U.S.C. § 856(a)(1) and 18 U.S.C. § 2. Second Superseding Indictment (Doc. #101), Count 1. Defendant pled guilty to the conspiracy charge. On April 30, 2013, the Court sentenced defendant to 168 months in prison. Defendant did not appeal. Gary D. Stone represented defendant throughout this proceeding.
On January 17, 2014, defendant filed a pro se motion to vacate his sentence under 28 U.S.C. § 2255. Liberally construed, defendant's motion alleges that Stone provided ineffective assistance because (1) he did not challenge the factual basis of defendant's plea or ask the Court to withdraw the plea, (2) he did not effectively object to the enhancement of defendant's sentence as a career offender under the sentencing guidelines, and (3) he did not object to the drug quantity which the presentence report used to calculate defendant's offense level. See Motion Under 28 U.S.C. § 2255 (Doc. #354) at 4-8.
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).
I. Waiver Of Collateral Attacks
The government seeks to enforce the waiver of collateral attacks in the plea agreement, but incorrectly states that the waiver precluded any appeal or collateral attack of a sentence within the applicable guideline range. See Government Response To Motion Pursuant To 28 U.S.C. § 2255 (Doc. #364) filed March 10, 2014 at 20. The government ignores the final sentence of the waiver which states "[n]otwithstanding the forgoing waivers, the parties understand that the defendant in no way waives any subsequent claims with regards to ineffective assistance of counsel or prosecutorial misconduct." Plea Agreement (Doc. #234) ¶ 13. Because defendant's claims relate to ineffective assistance of counsel, the Court overrules the government's request to enforce the waiver of collateral attacks. See United States v. Drayton, No. 10-20018-01-KHV, 2013 WL 789027, at *1 (D. Kan. Sept. 13, 2012); United States v. Clark, No. 10-20076-12-KHV, Order (Doc. #567) filed February 7, 2013; United States v. Cereceres-Morales, No. 09-20034-01-KHV, 2012 WL 4049801, at *1 n.2 (D. Kan. Sept. 13, 2012); United States v. Perea, No. 08-20160-08-KHV, 2012 WL 851185, at *1 n.1 (D. Kan. Mar. 8, 2012); United States v. Malone, No. 09-20159-01-KHV, 2012 WL 380239, at *2 (D. Kan. Feb. 6, 2012).
II. Claim 1 - Failure To Challenge Factual Basis Of Plea
Defendant argues that Stone provided ineffective assistance because he did not challenge the factual basis of defendant's plea or ask the Court to withdraw the plea. Motion Under 28 U.S.C. § 2255 (Doc. #354) at 4-5. Defendant pled guilty to Count 1 of the Second Superseding Indictment (Doc. #101) which charged as follows:
Beginning in or about December 2010, the exact date being unknown to the Grand Jury, and continuing to on or about August 2, 2012, both dates being approximate and inclusive, in the District of Kansas and elsewhere, the defendants, JUSTIN HILDERBRAND, DAVID LEAL JR., JONAH ROGERS, ALBERTO LEAL-MENDOZA, TONY JACKSON, PAUL COLLIER a.k.a. CATFISH, and JACK DANIELS, knowingly and intentionally conspired and agreed together, with Valerie Evans, Tyrone Popejoy, Pamela Briley, with each other, and with other persons known and unknown to the Grand Jury, to commit the following offenses against the United States: to distribute and possess with intent to distribute more than fifty grams of methamphetamine, a controlled substance, in violation of Title 21, United States Code, Sections 841(a)(1) and 841(b)(1)(A)(viii) and Title 18, United States Code, Section 2; and to lease, rent, use, and maintain residences at 110 North Garfield and 219 South Ashby in Chanute, Kansas, for distributing and using methamphetamine, a controlled substance, in violation of Title 21, United States Code, Section 856(a)(1) and Title 18, United States Code, Section 2.
This was all in violation of Title 21, United States Code, Section 846. Second Superseding Indictment (Doc. #101). Defendant asserts that the factual basis in the plea agreement was insufficient to support his plea to Count 1 because it did not allege how defendant participated in maintaining various residences for drug distribution purposes or that he even knew of his ...