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Post-Conviction/Habeas/2255
United States v. Ramirez
2015 WL 5011965 (7th Cir. 2015)
Rule 60(b) motion did not constitute an improper successive motion to vacate; ineffectiveness of post-conviction counsel constituted extraordinary circumstances; trial counsel ineffective in failing to object to classification as career offender
In 2008, the defendant pled guilty to possessing marijuana with intent to distribute. His PSR classified him as a career offender based on two earlier Texas convictions for assault. Despite the fact that his convictions were for “intentional, knowing, or reckless” assault, trial counsel did not object to the PSR’s characterization, and the district court sentenced him as a career offender, treating the convictions as crimes of violence under §4B1.2(a)(2)’s residual clause. The direct appeal was denied when appellate counsel never obtained the relevant records from the Texas courts relevant to the career offender classification. The defendant retained new counsel to file a §2255 motion, arguing that trial counsel was ineffective for failing to object to the career-offender designation. The district judge denied the motion. The defendant failed to submit a timely request for a certificate of appealability because his attorney did not inform him of the district court’s decision. When he discovered the denial, he filed a late request, but it was dismissed for lack of jurisdiction. He then moved under Federal Rule of Civil Procedure 60(b)(6) for relief from the judgment, arguing that post-conviction counsel was ineffective for causing him to miss the appeal deadline. This motion was dismissed, based on the belief that there was a rigid rule under which there was no right to counsel on collateral review. The Seventh Circuit certified for appeal the question whether trial counsel was ineffective at sentencing, and also instructed the parties to address whether the district court abused its discretion in denying the Rule 60(b)(6) motion in light of Trevino v. Thaler, — U.S. —-, 133 S. Ct. 1911 (2013), and Martinez v. Ryan, — U.S. —-, 132 S. Ct. 1309 (2012). The first question addressed was whether the defendant was entitled to use a Rule 60(b) motion, or if his motion was instead an unauthorized second or successive petition without the necessary permission. The court found that the motion could be evaluated on its own merit because the defendant was not trying to present a new reason why he should be relieved of either his conviction or his sentence, but instead was trying to reopen his existing section 2255 proceeding and overcome a procedural barrier to its adjudication. Where “extraordinary circumstances” exist, a motion under Rule 60(b) may be used to reopen a final judgment. “Pertinent considerations include, though are not limited to, a change in the Supreme Court’s approach to the fundamental rules for deciding habeas corpus cases; the diligence of the petitioner; whether alternative remedies were available but bypassed; and whether the underlying claim is one on which relief could be granted.” Here, appellate counsel’s failure to notify the defendant of the denial of his §2255 motion “deprived [him] of the ability to press his ineffective-assistance argument on appeal.” T h e c o u r t n e x t considered whether trial counsel was ineffective in not objecting to the career criminal classification. At the time of sentencing, the Supreme Court had decided Begay v. United States, 553 U.S. 137 (2008), and “counsel should have known that the two Texas convictions were suspect.” The court noted that trial counsel did not subpoena the Texas records because it “would have been extremely difficult to do and time consuming.” The court found “[t]his lack of desire to uncover the truth was deficient. See Wilson v. Mazzuca, 570 F.3d 490 (2nd Cir. 2009) (deficient performance includes errors arising from “oversight, carelessness, ineptitude, or laziness”). Trial counsel’s performance also prejudiced the defendant because none of the documents that could be permissibly reviewed revealed which of the three possible states of mind (intentional, knowing, or reckless) was used for the convictions. The court concluded that the defendant’s “situation fits the framework articulated in Maples, Trevino and Martinez. The district court was apparently unaware of those decisions and thus categorically denied [the defendant’s] motion under Rule 60(b)(6) without discussing how postconviction counsel’s performance affected the integrity of the proceedings [which] . . . amounted to an abuse of discretion. We therefore Vacate the denial of the Rule 60(b) motion and Remand with instructions to grant the Rule 60(b) motion and reopen the proceedings under section 2255.” Finally. the court also referenced §4B1.2(a)(2) and Johnson v. United States, — U.S. —-, 135 S. Ct. 2551 (2015), where the Supreme Court held that the identically worded residual clause in of the Armed Career Criminal Act was unconstitutionally vague. Neither party briefed the issue, but “it may warrant attention on remand.”
United States v. Bui
2015 WL 4620059 (3rd Cir. 2015)
Improper advice as to statutory minimum was effective assistance
The defendant pled guilty to one count of conspiracy to manufacture more than 1,000 marijuana plants, and one count of manufacturing and distributing marijuana within 1,000 feet of a school, in violation of 21 U.S.C. §860(a) and 18 U.S.C. §2. He was sentenced to the mandatory minimum of 120 months. In his §2255 petition, the defendant claimed that he pled guilty because his counsel told him he would receive a reduced sentence under the safety valve provisions by doing so. He asserted that before and after the guilty plea, his counsel told other family members that the defendant was eligible for a reduced sentence pursuant to the safety valve. Prior to sentencing, trial counsel filed a motion, pursuant to 18 U.S.C §3553(f), seeking a sentence reduction, but withdrew the motion at the sentencing hearing, conceding that under United States v. McQuilkin, 78 F.3d 105 (3rd Cir. 1996), §3553(f) did not apply to convictions under 21 U.S.C §860. In his pro se habeas petition, the defendant argued that his guilty plea was not voluntary or knowing because it was induc ed by the misrepresentations of his counsel and counsel’s erroneous advice on the safety valve provision constituted ineffective assistance. The district court denied the motion, citing the collateral waiver in the defendant’s plea agreement. The Third Circuit granted a certificate of appealability on the issue of “whether [the defendant’s] attorney committed ineffective assistance by advising him to plead guilty to 21 U.S.C §860, and whether, if . . . counsel [had] provided ineffective assistance, the collateral waiver in [the] plea agreement is enforceable as to that claim.” The court explained that “[w]hen addressing a guilty plea, counsel is required to give a defendant enough information to make a reasonably informed decision whether to accept a plea offer.” Further, “[k]nowledge of the comparative sentence exposure between standing trial and accepting a plea offer will often be crucial to the decision whether to plead guilty.” “Here, the record clearly indicates [the defendant’s] counsel provided him with incorrect advice regarding the availability of a sentencing reduction, pursuant to §3553(f). The defendant’s statements regarding counsel’s representations to him, plus the fact that counsel filed a motion pursuant to §3553(f), showed a “lack of familiarity with an eighteen-year-old precedent and his erroneous advice based on that lack of familiarity demonstrate counsel’s performance fell below prevailing professional norms.” As for prejudice, the defendant satisfied that prong as well. Prejudice was shown by the defendant’s statement that he would not have pled guilty but for trial counsel’s advice, plus the fact that he gained no benefit from his plea agreement because he was unable to benefit from the safety valve reduction. Because both prongs were satisfied, the habeas petition was granted and the case remanded.
Miscellaneous Issues
United States v. Cano-Flores
2015 WL 4666891 (D.C. Cir. 2015)
Forfeiture erroneously included amounts not obtained by defendant
The defendant was convicted for conspiring to manufacture and distribute cocaine and marijuana for importation into the United States. He was a member of the Gulf Cartel, one of the largest and most infamous drug cartels in Mexico, and participated in the cartel’s takeover of Miguel Alemán, a Mexican border city or “plaza” across the Rio Grande from Roma, Texas. The officials and police in the town turned a blind eye to the cartel’s drug trafficking, which took in roughly between $1 million and $2 million in weekly profits in Miguel Alemán alone. The defendant was responsible for guarding shipments of marijuana and cocaine, and he completed several drug sales. The district judge ordered a $15 billion forfeiture against the defendant pursuant to 21 U.S.C. §853(a)(1). The district court arrived at the $15 billion figure by relying on what the government claimed was a “conservative” interpretation of evidence on gross cartel proceeds that were reasonably foreseeable to the defendant. On appeal, the defendant argued that the forfeiture violated the Eighth Amendment’s prohibition against excessive fines. The D.C. Circuit ordered supplemental briefing on whether the calculation method used by the district court was consistent with the language of §853(a)(1). The government argued that the restitution amount was correct because the defendant was jointly and severally liable for his acts within the conspiracy. The appeals court disagreed,concluding that the “joint and several” calculation procedure erroneously included amounts not obtained by the defendant. “We now conclude that the calculation procedure employed by the district court was inconsistent with the language of §853(a)(1), which in our view does not authorize imposition of a forfeiture based on the total revenues of a conspiracy simply because they may have been reasonably foreseeable.” The forfeiture assessment was vacated and remanded to the district court for determination of the proper amount to be forfeited under §853(a)(1).
Cases In This Issue
United States v. Black, 2015 WL 4882055 (7th Cir. 2015)
United States v. Bui, 2015 WL 4620059 (3rd Cir. 2015)
United States v. Cano-Flores, 2015 WL 4666891 (D.C. Cir. 2015)
United States v. Garcia, 2015 WL 4878620 (5th Cir. 2015)
United States v. Kupper, 2015 WL 4926885 (10th Cir. 2015)
United States v. Maiello, 2015 WL 4931982 (11th Cir. 2015)
United States v. Martin, 2015 WL 4664855 (9th Cir. 2015)
United States v. Paz-Alvarez, 2015 WL 4978733 (1st Cir.2015)
United States v. Powell, 2015 WL 4926202 (6th Cir. 2015)
United States v. Purham, 2015 WL 4639259 (7th Cir. 2015)
United States v. Ramirez, 2015 WL 5011965 (7th Cir. 2015)
United States v. Simpson, 2015 WL 4760208 (5th Cir. 2015)
United States v. Taylor, 2015 WL 4653148 (7th Cir. 2016)
