United States District Court, D. Kansas
MEMORANDUM AND ORDER
MURGUIA UNITED STATES DISTRICT JUDGE
case is before the court on defendant Arrick Warren's
Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or
Correct Sentence by a Person in Federal Custody (Doc. 103).
Defendant claims in his § 2255 motion that defense
counsel did not inform him of the possibility of several
sentencing enhancements and drug quantity calculation issues
before he entered a plea of guilty (without a plea
agreement). Specifically, defendant claims that defense
counsel, Dionne Scherff, failed to explain that (1) seized
currency could be converted to crack cocaine to determine
defendant's base offense level; (2) powder cocaine could
be converted to crack cocaine to determine his base offense
level; (3) defendant could receive a firearm enhancement; and
(4) defendant could receive an enhancement for maintaining a
premises for the purpose of manufacturing or distributing a
controlled substance. Defendant claims that each of these
facts individually would have been significant enough to him
to cause him to go to trial instead of pleading guilty.
Alternatively, defendant claims that cumulatively,
counsel's failure to explain the possible outcomes at
sentencing was ineffective assistance. In support of his
claims, defendant submitted an affidavit stating that he
would not have pleaded guilty had he received the alleged
government responded, arguing alternatively that (1) the
record conclusively shows that defendant is not entitled to
relief despite defendant's new claims in his affidavit;
or (2) the affidavit of Ms. Scherff shows that she did, in
fact, fully advise defendant of the possible sentencing
outcomes. In her affidavit, Ms. Scherff refers to a number of
letters between counsel and defendant, as well as meetings.
was charged in a Second Superseding Indictment with (1) two
counts of distribution of cocaine base; (2) one count of
possession with intent to distribute cocaine base; and (3)
one count of maintaining a drug-involved premises-all within
1000 feet of a playground. On January 24, 2014, defendant
pleaded guilty to all charges without a plea agreement. The
court inquired into many aspects of the plea, including its
voluntariness, defendant's knowledge of the consequences,
and the discretion involved in sentencing, among other
things. Once the court was satisfied that the guilty plea was
made knowingly and voluntarily with defendant's full
comprehension of the charges and consequences, it accepted
the guilty plea and ordered the United States Probation
Office to prepare a Presentence Investigation Report
calculated defendant's total offense level to be
thirty-five, which, coupled with his criminal history
category of III, led to an initial sentencing range of 210 to
262 months in prison. This range was subsequently lovered to
168 to 210 months. Defendant objected to several portions of
the PSR: (1) the conversion of powder cocaine to cocaine base
(“crack”); (2) the conversion of U.S. currency to
crack; and (3) the application of a two-level enhancement for
a gun. Both parties filed sentencing memoranda on these
issues, and the court conducted a sentencing hearing over the
course of four days.
November 19, 2014, the court sentenced defendant to 180
months in prison with six years of supervised release.
Defendant appealed, and Ms. Scherff continued to represent
defendant on appeal. The Tenth Circuit ultimately affirmed.
Defendant then filed the instant motion pro se.
28 U.S.C. § 2255 allows “a prisoner in custody
under sentence of a court established by Act of Congress
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 [to] move the court
which imposed the sentence to vacate, set aside or correct
the sentence.” Not every asserted error of law can be
raised in a § 2255 motion. Davis v. United
States, 417 U.S. 333, 346 (1974). The appropriate
inquiry is whether the claimed error of law was a
“fundamental defect which inherently results in a
complete miscarriage of justice.” Id. (quoting
Hill v. United States, 368 U.S. 424, 428 (1962)
(quotation marks omitted)). The court also looks at whether
the motion presents exceptional circumstances, where the need
for the remedy is apparent. See id.
court must hold an evidentiary hearing unless the motion,
files, and records conclusively show that the prisoner is not
entitled to relief. United States v. Galloway, 56
F.3d 1239, 1240 n.1 (10th Cir. 1995). Defendant bears the
burden of alleging facts which, if proven, would entitle him
to relief. See Hatch v. Oklahoma, 58 F.3d 1447, 1471
(10th Cir. 1995). The allegations must be specific and
particularized, not general or conclusory. Id. The
court is not required to fashion defendant's arguments
for him where his allegations are merely conclusory in nature
and lack supporting factual allegations. United States v.
Fisher, 38 F.3d 1144, 1147 (10th Cir. 1994).
claims that he received ineffective assistance of cousel
because Ms. Scherff failed to explain to him the how the
federal sentencing guidelines would impact his case-which
rendered his plea involuntary.
prove ineffective assistance of counsel, defendant must show
that (1) counsel's representation fell below an objective
standard of reasonableness and (2) counsel's deficient
performance prejudiced defendant. Roe v.
Flores-Ortega, 528 U.S. 470, 476-77 (2000) (citing
Strickland v. Washington, 466 U.S. 668, 688 (1984)).
The court must judge the reasonableness of counsel's
challenged conduct on the facts of the particular case.
Id. Judicial scrutiny of counsel's performance
is highly deferential. Id. In addition,
counsel's performance must have been completely
unreasonable-not merely wrong. Boyd v. Ward, 179
F.3d 904, 914 (10th Cir. 1999).
new allegations regarding pre-plea conversations with counsel
directly contradict information provided in previous
proceedings. In defendant's plea petition, defendant
acknowledged under oath, inter alia, that (1) he could
receive up to sixty years in prison; (2) his attorney
discussed with him how the sentencing guidelines might apply;
(3) the court could take into account all relevant criminal
conduct; and (4) he was satisfied with his counsel's
advice and help. (Doc. 59.) These statements ...