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United States v. Walton

United States District Court, E.D. Kentucky, Central Division, Lexington

April 22, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
MAL ERIC WALTON, aka Fat Daddy, Defendant.

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

EDWARD B. ATKINS, Magistrate Judge.

Mal Eric Walton, proceeding pro se, brings this action pursuant to 28 U.S.C. § 2255 seeking to vacate, set aside, or correct his sentence. [Record No. 518]. Having been fully briefed, this matter is now ripe for review. Consistent with local practice, the matter has been referred to the undersigned to prepare a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons discussed below, it is recommended that Walton's motion be denied.

I. FACTUAL & PROCEDURAL HISTORY On November 18, 2010, Mal Eric Walton pled guilty to one count of conspiracy to distribute fifty (50) grams of crack cocaine, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A) and one count of maintaining drug-involved premises within 1, 000 feet of a school, in violation of 21 U.S.C. §§ 856(a)(1) and 860(a)(1). [Record No. 311]. As part of his plea agreement, Walton waived his right to appeal and collaterally attack his guilty plea, conviction, and sentence.[1] [Record No. 313; see also Record No. 549, at 6]. The plea agreement also set forth that because of his two prior drug felony convictions, and pursuant to 18 U.S.C. § 851, he faced a statutory minimum sentence of life imprisonment.[Record Nos. 313; 549, at 5; 7].

Thereafter, prior to his sentencing hearing, the United States made a motion to depart from the mandatory life sentence. [Record No. 550, at 16]. And, based on Walton's PSR, his probation officer recommended his offense level be increased by four (4) levels based on his role as a leader in a conspiracy which involved five (5) or more participants, pursuant to United States Sentencing Guideline (U.S.S.G) §3B1.1(a). Walton's counsel, Fred Peters, filed two objections to the Pre-Sentence Investigation Report (PSR). [ See Record Nos. 416; 550, at 1-14]. Peters specifically objected to the imposition of the four-level enhancement based on Walton's leadership role in the conspiracy. [Record No. 556, at 1]. During Walton's sentencing hearing, the Court conducted an evidentiary hearing on counsel's objection to this enhancement and ultimately overruled the objection. [ See Record Nos. 416, 453; 550]. On February 25, 2011, the Court sentenced Walton to 216 months imprisonment followed by five (5) years supervised release on each count, to run concurrently. [Record No. 460].

On March 5, 2012, Walton filed the instant motion to vacate. [Record No. 518]. As grounds, Walton sets forth two (2) claims: (1) trial counsel was constitutionally ineffective for failing to object to the sentencing enhancement for a leadership role during sentencing; and (2) trial counsel was constitutionally ineffective for failing to challenge the PSR and inadequately represented Walton at sentencing. Because Walton's allegations were not supported by facts, the Court ordered him to show case why his motion should not be dismissed. [Record No. 521]. In accordance with the Court's order, Walton has supplemented his motion to vacate, explaining his grounds for relief. [Record No 533]. Therein, he sets forth four (4) claims: (1) trial counsel was constitutionally ineffective for failing to apprise Walton of his PSR as required by Fed. R. Crim. P. 32, and as a result, Walton did not have the opportunity to review, read and/or challenge the PSR [Id. at 1]; (2) trial counsel was constitutionally ineffective for failing to advise Walton of all of the penalties he would incur as a result of his plea, and as a result, he did not enter into a voluntary and knowing plea of guilty [Id.]; (3) trial counsel provided ineffective assistance of counsel for failing to provide Walton a copy of his case file so he could adequately prepare the instant motion to vacate [Id. at 2]; and (4) by withholding discovery, counsel has provided ineffective assistance, and the government and the Court have committed a Brady violation for failing to disclose evidence material to Walton's guilt. [Id. at 2-3]. In close, Walton requests an evidentiary hearing to establish whether or not he has received a copy of his legal file, whether counsel was constitutionally ineffective, and to determine if he was able to view his PSR as required by Fed. R. Crim. P. 32.

The United States has responded in opposition to Walton's pending motion to vacate, as read with his supplement. [Record No. 556]. According to the United States, Walton has not set forth a factual basis for his ineffective assistance of counsel claims. [Id.]. The Government points out that Walton's counsel specifically objected to the PSR and, at sentencing, to the four-level enhancement based on Walton's leadership role in the conspiracy. In fact, the Government contends that the Court conducted an evidentiary hearing on this objection that lasted over two hours. As such, according to the Government, Walton fails to satisfy the requirement of Strickland, and his pending motion to vacate should be dismissed or denied. See Strickland v. Washington , 466 U.S. 668, 692 (1984).

Walton has replied to the Government's response, expounding on the factual basis of his pending claims. [Record No. 572]. Walton also sets forth three (3) new grounds for habeas relief: (1) the Court misjudged the impact of his interactions with various parties and assigned his leadership role in error [Id. at 7]; [(2) there was an overstatement of the drug quantity attributed to Walton, and as a result, his sentence was excessive [Id. at 7]; and (3) counsel provided constitutionally ineffective assistance by failing to advocate Walton's eligibility for benefit of the Fair Sentencing Act of 2010, and, because of this, his sentence is greater than necessary. [Id. at 8].

Significantly, in the midst of briefing the instant Section 2255 motion, on April 23, 2012, Walton filed a Motion for Reduction of his Sentence pursuant to the Fair Sentencing Reform Act. The United States initially opposed this motion [Record No. 538], but pursuant to the United States' Supreme Court's ruling in Dorsey v. United States , 132 S.Ct. 2321, 2329 (2012), amended its response to reflect that Walton's 216 month sentence did run afoul of the Fair Sentencing Act. [Record No. 590]. Accordingly, on September 13, 2013, the Court resentenced Walton to a term of 150 months imprisonment to be followed by five (5) years supervised release. [Record No. 662].

Walton has indicated to the Court that his resentencing did not render any of the claims pending in his Section 2255 motion moot. [Record Nos. 665; 676]. The matter is now submitted to the undersigned for a recommended disposition.

II. STANDARD OF REVIEW

To prevail upon his pending motion for habeas relief under 28 U.S.C. § 2255, Walton must allege that: (1) his conviction resulted from an error of constitutional magnitude; (2) his sentence was imposed outside the statutory limits; or (3) an error of fact or law occurred that was so fundamental as to render the entire proceedings invalid. Mallett v. United States , 334 F.3d 491, 496-97 (6th Cir. 2003), cert. denied, 540 U.S. 1133 (2004); see also Moss v. United States , 323 F.3d 445, 454 (6th Cir.), cert. denied, 540 U.S. 879 (2003). He must sustain his allegations by a preponderance of the evidence. This being a pro se petition, the undersigned is mindful that it is held to a less stringent standard than those drafted by legal counsel and such pleadings are entitled to a liberal construction that includes all reasonable inferences that can be drawn from them. See Haines v. Kerner , 404 U.S. 519, 520 (1972).

Walton cannot utilize this § 2255 motion to re-litigate an issue that was raised and considered on appeal, absent highly exceptional circumstances, such as an intervening change in the law. Stephan v. United States , 496 F.2d 527, 528-29 (6th Cir. 1974), cert. denied, 423 U.S. 861 (1975); see also United States v. Prichard , 875 F.2d 789, 790-91 (10th Cir. 1989). Nor may he use this § 2255 motion as a substitute for bringing a direct appeal. Reed v. Farley , 512 U.S. 339, 354 (1994). A federal prisoner's failure to raise a claim on direct appeal results in a procedural default of that claim. Bousley v. United States , 523 U.S. 614, 621 (1998); Peveler v. United States , 269 F.3d 693, 698 (6th Cir. 2001); Phillip v. United States , 229 F.3d 550, 552 (6th Cir. 2000). To avoid procedural default, the petitioner must first show cause to excuse the failure to raise the claim on direct appeal and actual prejudice resulting from the alleged violation. Reed 512 U.S. at 354.

Importantly, this cause and prejudice showing is not a prerequisite for claims related to the ineffective assistance of counsel. In fact, ineffective assistance of counsel claims are not cognizable in a direct appeal because the record is generally inadequate to permit review. Massaro v. United States , 538 U.S. 500, 504-05 (2003); United States v. Combs , 369 F.3d 925, 940 (6th Cir. 2004); United States v. Brown , 332 F.3d 363, 368-69 (6th Cir. 2003). Such claims are properly reviewed in this § 2255 proceeding. Massaro , 538 U.S. at 504; Combs , 369 F.3d at 940; Brown , 332 F.3d at 369; see also Ciak v. United States , 59 F.3d 296, 303-04 (2nd Cir. 1995) (noting that it is not realistic to expect appellate counsel, who served as the defendant's trial counsel, to raise an ineffective assistance of counsel claim on direct appeal).

III. ANALYSIS

A liberal construction of Walton's filings reveals a total of nine (9) claims for habeas relief. Walton presents six (6) of these claims in his initial motion to vacate and his supplement:

(I) Trial counsel was constitutionally ineffective for failing to object to the sentencing enhancement for a leadership role during sentencing;
(II) Trial counsel was constitutionally ineffective for failing to challenge the PSR and inadequately represented Walton at sentencing;
(III) Trial counsel was constitutionally ineffective for failing to apprise Walton of his PSR as required by Fed. R. Crim. P. 32, and as a result, Walton did not have the opportunity to review, read and/or challenge the PSR;
(IV) Trial counsel was constitutionally ineffective for failing to advise Walton of all of the penalties he would incur as a result of his plea, and as a result, he did not enter into a voluntary and knowing plea of guilty;
(V) Trial counsel provided ineffective assistance of counsel for failing to provide Walton a copy of his case file so he could adequately prepare the instant motion to vacate; and
(VI) By withholding discovery, counsel has provided ineffective assistance of counsel, and the government and the Court have committed a Brady violation for failing to disclose evidence material to Walton's guilt.

[Record Nos. 518, 533]. The final three (3) claims are presented for the first time in Walton's reply brief:

(VII) The Court misjudged the impact of Walton's interactions with various parties and assigned his leadership role in error;
(VIII) There was an overstatement of drug quantity attributable to Walton, and as a result, his sentence was excessive; and
(IX) Trial counsel provided constitutionally ineffective assistance of counsel by failing to advocate Walton's eligibility for benefit of the Fair Sentencing Act of 2010, and, because of this, his sentence is greater than necessary.

[Record No. 572].

Because Walton's petition is held to a less stringent standard than those drafted by legal counsel, the Court will address the grounds he asserts in his initial motion, his supplement, as ...


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