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United States v. Hutsell

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

January 29, 2015

UNITED STATES OF AMERICA, Plaintiff,
v.
CHARLES EDWARD HUTSELL, Defendant. Criminal No. 5:10-78-JMH-20

ORDER AND REPORT AND RECOMMENDATION

CANDACE J. SMITH, Magistrate Judge.

On December 9, 2010, Defendant Charles Edward Hutsell entered into a binding Plea Agreement in which he pled guilty to two drug distribution offenses and waived his right to appeal and to collaterally attack his guilty plea, conviction, and sentence. (R. 332, 540). This case is presently before the Court, however, because Hutsell has nonetheless filed a collateral attack in the form of a 28 U.S.C. § 2255 Motion to Vacate, Set Aside, or Correct Sentence. (R. 519). Hutsell's Motion to Supplement Pleading (R. 708) is also pending, which the Court will grant as unopposed.[1]

With respect to the pending § 2255 Motion, applicable law provides that a plea agreement containing a waiver of rights will be enforced if a defendant knowingly, voluntarily, and intelligently entered into the agreement. Here, the Plea Agreement and its waiver provision are valid. The ineffective assistance of counsel claims raised by Defendant in his § 2255 Motion as well as the additional claim raised in his Supplement are precluded by the waiver. Those claims, as well as Defendant's attack on the Court's subject-matter jurisdiction, are also faulty on the merits.

As part of his § 2255 Motion, Defendant additionally claimed a right to a reduction in sentence based upon the retroactivity of the Fair Sentencing Act of 2010 (FSA), Pub. L. No. 111-220, 124 Stat. 2372. This aspect of Defendant's § 2255 Motion was recently ruled upon by the presiding District Judge ( see R. 745), with Defendant's sentence of imprisonment being reduced from 144 months to a term of 120 months. ( Id.; R. 746). This Report and Recommendation addresses the remainder of Defendant's claims presented in his § 2255 Motion.

As explained more fully below, it will be herein recommended that the District Court deny the remaining claims in Defendant's § 2255 Motion. I. BACKGROUND

Defendant was indicted on November 18, 2010, by a federal grand jury sitting in the Eastern District of Kentucky, and charged with the following crimes:

• conspiring to knowingly and intentionally distribute 50 grams or more of a mixture or substance containing a detectable amount of cocaine base (crack cocaine), in violation of 21 U.S.C. § 846;
• knowingly and intentionally maintaining a residence for the purpose of distributing 50 grams or more of cocaine base (crack cocaine) and marijuana within 1, 000 feet of a public secondary school, in violation of 21 U.S.C. § 856(a)(1) and § 860;
• conspiring to knowingly and intentionally distribute a mixture or substance containing a detectable amount of marijuana, in violation of § 846; and
&bull: 3 counts[2] of knowingly and intentionally distributing a mixture or substance containing a detectable amount of cocaine base (crack cocaine), in violation of 21 U.S.C. § 841(a)(1).

(R. 308).

On December 9, 2010, Defendant pled guilty to Counts 5 and 6 of the Third Superseding Indictment, charging distribution of cocaine base and distribution of 5 grams or more of cocaine base, both in violation of § 841(a)(1). (R. 332, 540). As part of the binding Plea Agreement between Defendant and the United States, Defendant waived his right to file an appeal or collaterally attack his guilty plea, conviction, and sentence. (R. 333, ¶ 9). As a benefit of entering into the Plea Agreement, the United States dismissed Counts 1 through 4 of the Third Superseding Indictment. ( Id., ¶ 1). At the December 9, 2010, rearraignment, the District Court approved the Plea Agreement. ( See R. 540, at 12). On February 25, 2011, consistent with that Agreement, the District Court sentenced Defendant to a term of 144 months of imprisonment on each of the two counts to which he pled, to be served concurrently. (R. 459, at 2). The District Court also imposed 6 years of supervised release on Count 5 and 8 years of supervised release on Count 6, to run concurrently, for a total term of 8 years of supervised release. ( Id. at 3). Defendant did not file a direct appeal of the District Court's Judgment.

On March 6, 2012, Defendant, pro se, filed this § 2255 Motion. (R. 519). On June 7, 2012, after being granted an extension of time, the United States filed a Response to Defendant's Motion. (R. 542). On June 25, 2012, Defendant filed a Reply. (R. 545).[3] As it was anticipated that the Supreme Court would issue an opinion in the summer of 2012 that could be relevant to Defendant's resentencing claims, the United States asked for, and was granted, an abeyance of this matter pending that Supreme Court ruling. (R. 542). Subsequent thereto, the United States was ordered to file a supplemental response to address any impact of that Supreme Court decision, Dorsey v. United States, 132 S.Ct. 2321 (2012), on the instant matter. (R. 558). On September 14, 2012, the United States filed its Supplemental Response (R. 561). On October 4, 2012, Defendant filed his Reply to the Supplemental Response (R. 569).

On October 3, 2013, the Court granted the United States' Motion to hold this matter in abeyance pending the Sixth Circuit's en banc consideration of United States v. Blewett, 719 F.3d 482 (6th Cir. 2013), which the United States expected might have an impact on the issues before the Court. Upon the filing of the Sixth Circuit's en banc decision in Blewett, 746 F.3d 647 (6th Cir. 2013), the Court ordered the United States to file a supplemental memorandum explaining in what way it believed the Sixth Circuit's en banc ruling in Blewett impacts the pending § 2255 Motion. (R. 702). On January 21, 2014, the United States filed its Supplemental Response. (R. 704). On February 13, 2014, Defendant filed a Motion to Supplement Pleading, asserting a new claim that he should not have been subject to the enhanced mandatory minimum on Count 6 for having a prior felony conviction and also provided additional legal argument in support of the claims raised in his original § 2255 Motion. (R. 708). On August 27, 2014, Defendant moved for expedited consideration of that part of his § 2255 Motion seeking a reduction of his sentence (R. 742), which request was granted by the presiding District Judge, with Defendant's sentence reduced to 120 months (R. 745). The remaining claims in Defendant's § 2255 Motion are before the Court and the subject of this Report and Recommendation to the presiding District Judge.

II. ANALYSIS

Under § 2255, a federal prisoner may seek habeas relief on grounds that his conviction or sentence violated the Constitution or laws of the United States, that the court was without jurisdiction to impose the sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack. See § 2255(a). A § 2255 motion does not have to be founded on constitutional error or even federal law. Watt v. United States, 162 F.Appx. 486, 502-03 (6th Cir. 2006); see also Metheny v. Hamby, 835 F.2d 672, 674 (6th Cir. 1987). However, to succeed on a § 2255 motion alleging constitutional error, a defendant "must establish an error of constitutional magnitude which had a substantial and injurious effect or influence on the proceedings." Watson v. United States, 165 F.3d 486, 488 (6th Cir. 1999) ( citing Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993)). To obtain relief under § 2255 for a non-constitutional error, a defendant must establish either a fundamental defect in the criminal proceedings which inherently resulted in a complete miscarriage of justice, or an error so egregious that it amounts to a violation of due process. See Riggs v. United States, 209 F.3d 828, 831 (6th Cir. 2000), recognized as abrogated on other grounds by Kumar v. United States, 163 F.Appx. 361 (6th Cir. 2006); see also McNeal v. United States, 17 F.Appx. 258, 260-61 (6th Cir. 2001). Therefore, a defendant must allege in his § 2255 motion that: (1) his conviction was the result of an error of constitutional magnitude; (2) his sentence was imposed outside of statutory limits; or (3) there was an error of law or fact so fundamental as to render the proceedings invalid. Pough v. United States, 442 F.3d 959, 964 (6th Cir. 2006) ( citing Mallett v. United States, 334 F.3d 491, 496-97 (6th Cir. 2003)). A defendant must prove his allegations by a preponderance of the evidence. Pough, 442 F.3d at 964.

In the case at bar, Defendant raised and there remains pending before the Court the following four issues in the § 2255 Motion and Supplement thereto: (1) defense counsel provided ineffective assistance; (2) the District Court lacked subject-matter jurisdiction over him; (3) his sentence is based on an improper quantity of cocaine base; and (4) he should not have been subject to the enhanced mandatory minimum under 21 U.S.C. §§ 841(b)(1)(B) and 851. (R. 519, 708). As discussed below, each of these claims lacks merit.

A. Defendant's ineffective assistance of counsel claims are barred by the waiver contained in his Plea Agreement. Even if considered, they would fail on their merits.

Defendant's Plea Agreement waived his right to collaterally attack his guilty plea, conviction, and sentence. (R. 333, ¶ 9). The Sixth Circuit has held that when a defendant knowingly, intelligently, and voluntarily waives the right to pursue collateral relief as part of a plea agreement, the defendant is barred from bringing a § 2255 motion, and this waiver extends to ineffective assistance of counsel claims. Davila v. United States, 258 F.3d 448, 451 (6th Cir. 2001). The exception to this rule is where the collateral attack concerns the validity of the guilty plea or waiver. In re Acosta, 480 F.3d 421, 422 (6th Cir. 2007) ( citing Watson, 165 F.3d at 489). Here, since Defendant disputes the voluntariness of the Plea Agreement, and therefore disputes the Agreement's validity, the Court will first examine the Plea Agreement and then proceed to discuss the merits of the ineffective assistance claims. Defendant's arguments are unconvincing under either approach.

Defendant contends that he entered into the Plea Agreement involuntarily (R. 519, at 1), an assertion that calls into question the validity of the Agreement and thereby escapes the ambit of the waiver provision. In support of his claim, Defendant notes that counsel "coerced" him into signing the Plea Agreement by telling Defendant that he would face 20 years in prison if he did not sign the document. ( Id. at 6). The transcript of the rearraignment, however, does not support Defendant's contention. Specifically, the Court engaged Defendant in the following colloquy:

COURT: Okay, the court has appointed Mike Murphy to represent you in this matter. Are you fully satisfied with the counsel and representation and ...

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