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United States v. Israel

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

February 12, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
MICAH T. ISRAEL, Defendant.

          REPORT AND RECOMMENDATION

          Can dace J. Smith, United States Magistrate Judge

         This matter is before the Court on pro se Defendant Micah Israel's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. (R. 115). The United States filed its Response (R. 123) and, although untimely (see R. 124; R. 126), Defendant has filed a Reply.[1] (R. 127). With his Reply, Defendant also filed a separate Motion for Evidentiary Hearing which included a request for counsel to be appointed. (R. 128). The United States responded on November 8, 2017. (R. 130). Having all relevant documents before the Court, this matter is ripe for consideration and preparation of a Report and Recommendation pursuant to 28 U.S.C. § 636(b). For the reasons set forth below, it will be RECOMMENDED that Defendant's § 2255 Motion (R. 115) and Motion for Evidentiary Hearing (R. 128) be DENIED.

         I. BACKGROUND

         On September 4, 2014, a federal grand jury returned an Indictment charging Defendant Israel with the knowing and intentional attempt to possess with the intent to distribute 500 grams or more of a mixture or substance containing a detectable amount of cocaine, a Schedule II controlled substance, a violation of 21 U.S.C. § 841(a), all in violation of 21 U.S.C. § 846. (R. 1). Following the issuance of an arrest warrant (R. 3), Israel was arrested on September 9, 2014, (see R. 8) and pleaded not guilty at arraignment the following day. (R. 13). Defendant's jury trial commenced on February 2, 2015 (R. 51), and the jury returned a guilty verdict for the sole count against him on February 3, 2015. (R. 52).

         The evidence at trial established that Israel had attempted to purchase one kilogram of cocaine from his codefendant Emmanuel Chenault. See United States v. Israel, 662 F. App'x 382, 383-85 (6th Cir. 2016) (opinion on direct appeal) (describing case facts). Chenault had unknowingly been involved with a law enforcement confidential informant (“CI”) in what Chenault believed to be a transaction to obtain several kilograms of cocaine. On July 1, 2014, the CI fronted Chenault with what Chenault thought was four one-kilogram bricks of cocaine, though the bricks were actually four blocks of wood wrapped in tape, axle grease, and cellophane. Chenault left his meeting with the CI with possession of the purported bricks of cocaine, intending to sell them and return with payment of $30, 500 for each brick. Id.

         The same date and while under the surveillance of law enforcement, Chenault traveled to Defendant Israel's house and, after being inside the house a short time, Chenault left the residence with what appeared to be a money bag. Shortly after driving away, Chenault was stopped by police; $35, 000 and three of the fake cocaine bricks were seized from his vehicle. As detailed by the Sixth Circuit:

Meanwhile, minutes after Chenault drove away, undercover officers observed Israel pacing back and forth in his front yard. Israel was arguing with someone on the phone and, according to one police observer, “looked agitated and stressed.” He then went back into his house and quickly exited again, this time leaving in his car. At this point, officers attempted to stop and detain Israel. However, Israel had other plans. He took the officers on a slow-speed car chase, evading two road blocks and eventually arriving back at his house. During the brief escapade, he called his girlfriend, Jashae Watts, and told her to “go into the bathroom, . . . get the stuff that was in there[, ] and throw it over the fence.” When Israel finally arrived back at his house, he was arrested without incident.

Id. at 384. Police spoke with Israel's girlfriend at the residence. She told law enforcement that she had communicated with Israel after he left the residence, at which time he told her to go into the bathroom and get rid of everything and throw it over the fence and she did so. (R. 96, at 86, 89-90).

         Police later executed a search warrant at Israel's house, finding items associated with drug trafficking-digital scales with cocaine residue, plastic baggies and bottles containing cutting agents, a money counter, a firearm and ammunition, cocaine test kits, and marijuana cultivation and cocaine handbooks. United States v. Israel, 662 F. App'x at 384. On the other side of the fence at Israel's property line, police also found one of the faux cocaine bricks, a digital scale, and a rubber glove with grease residue. Id.

         Following the entry of the jury's verdict and prior to Defendant's sentencing hearing, the Probation Office prepared a Presentence Investigation Report (“PSR”). (R. 77). The PSR calculations under the Sentencing Guidelines placed Defendant at a base offense level of 24. (Id. at 6, ¶ 24). The offense level was increased 2 levels because Defendant possessed a firearm during the commission of the underlying offense (id. at ¶ 25), and increased 2 additional levels for obstruction of justice, Israel having instructed another person to discard physical evidence. (Id. at ¶ 28). Defendant's adjusted offense level was therefore calculated to be a level 28. (Id. at ¶ 29).

         However, after determining that Defendant qualified as a career offender, his base offense level was increased to a level 37. (Id. at ¶ 32).

         The PSR also contained an analysis of Defendant's background, including his criminal history. (Id. at 7-12). In light of his career offender status, the PSR lists Defendant's criminal history category as VI. (Id. at 10, ¶ 41). Based on Defendant's total offense level of 37, and a criminal history category of VI, his Sentencing Guidelines range was calculated to be 360 months to life in prison. (Id. at 16, ¶ 80).

         Defendant appeared before the District Judge for sentencing on May 20, 2015. (R. 72). The Court adopted the findings and guideline calculations set out in the PSR (id.), and sentenced Defendant to 420 months' imprisonment, to be followed by an 8-year term of supervised release. (R. 74). Defendant appealed his conviction and sentence on May 27, 2015. (R. 78). Defendant's conviction and sentence were affirmed by the Sixth Circuit Court of Appeals on October 31, 2016. (R. 111). Defendant's time to petition the United States Supreme Court for certiorari expired on January 29, 2017, and Defendant filed no such petition.

         On July 26, 2017, Defendant filed the pending motion pursuant to 28 U.S.C. § 2255. (R. 115). In his motion, Defendant presents five claims; one claim challenging the constitutionality of the criminal statutes under which he was convicted and sentenced, claiming 21 U.S.C. § 841 fails to provide an appropriate penalty and § 846 is unconstitutionally vague, and four claims alleging ineffective assistance of counsel. (Id. at 4-9). Defendant alleges his trial counsel was ineffective for: 1) failing to properly advise him of his charges; 2) failing to argue against sentence enhancement despite his request; 3) failing to object to an agent's testimony at trial and move to suppress; and 4) failing to present an alternative description of the events leading to his arrest. (Id.).

         In its Response, the United States argued that neither statute referenced by Defendant is unconstitutional. (R. 123). The United States also argued that Defendant's trial counsel was not ineffective, and supported its argument with references to an affidavit from Defendant's trial counsel. (Id.; R. 123-1). According to the United States, Defendant was adequately informed on multiple occasions of the charges, defense counsel effectively represented Defendant with respect to sentencing enhancements, defense counsel properly questioned a responding law enforcement officer, and defense counsel was never aware of Defendant's alternative description of the facts and therefore was not ineffective in allegedly failing to raise such an argument. (R. 123, at 3-9).

         II. ANALYSIS

         Under 28 U.S.C. § 2255(a), a defendant must demonstrate his “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 prevail on a § 2255 motion alleging a nonconstitutional error, a defendant “must establish a ‘fundamental defect which inherently results in a complete miscarriage of justice, ' or an error so egregious that it amounts to a violation of due process.” Watson v. United States, 165 F.3d 486, 488 (6th Cir. 1999) (quoting United States v. Ferguson, 918 F.2d 627, 630 (6th Cir. 1990) (citing Hill v. United States, 368 U.S. 424, 428 (1962)). 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, 165 F.3d at 488 (citing Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993)). In sum, 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.

         A. Unconstitutionality Ground

         In his § 2255 Motion, Defendant claims that 21 U.S.C. §§ 841 and 846 are unconstitutional. (R. 115 at 6). He claims that § 841 is unconstitutional as it applies to him because it does not provide a penalty for his action, as the appropriate punishment is determined by the quantity of illegal substance involved, and Defendant did not possess any quantity of illegal substance. (R. 115-1, at 12-16). As for § 846, Defendant claims the statute is unconstitutionally vague and it “does not adequately inform citizens as to what is illegal.” (Id. at 17).

         Defendant did not challenge the constitutionality of §§ 841 and 846 on direct appeal. See Israel, 662 F. App'x at 386. He raises this challenge for the first time in his § 2255 Motion. It is well-settled that a defendant is generally barred from raising claims in a § 2255 motion that he failed to present on direct appeal. United States v. Gibson, 424 F. App'x 461, 466-67 (6th Cir. 2011) (citing United States v. Frady, 456 U.S. 152, 167-68 (1982)). The Sixth Circuit has applied procedural default to a § 2255 defendant's claim to the extent the defendant argued, similar to Israel's argument here, that the statute under which she was convicted was unconstitutional for failing to allege a specific quantity of drugs.[2] See Regalado v. United States, 334 F.3d 520, 527-28 (6th Cir. 2003).

         “Where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can first demonstrate either ‘cause' and actual ‘prejudice, ' (citations omitted), or that he is ‘actually innocent.'” Bousley v. United States, 523 U.S. 614, 622 (1998) (citing Murray v. Carrier, 477 U.S. 478, 485 (1986); Smith v. Murray, 477 U.S. 527, 537 (1986); Wainwright v. Sykes, 433 U.S. 72, 87 (1977)); see also Vanwinkle v. United States, 645 F.3d 365, 369 (6th Cir. 2011). Israel has not made any effort to show that cause and actual prejudice exist as to allow the adjudication of this claim.

         Nor in his unconstitutionality claim has Israel argued his actual innocence.[3] A defendant who fails to establish cause and prejudice may still be able to obtain review of a procedurally defaulted claim if his case fits within a narrow class of cases permitting review in order to prevent a fundamental miscarriage of justice, as when he submits new evidence showing that a constitutional violation has probably resulted in a conviction of one who is actually innocent. Murray v. Carrier, 477 U.S. 478, 495-96 (1986). “[A]ctual innocence means factual innocence, not mere legal insufficiency.” Lee v. Brunsman, 474 F. App'x 439, 442 (6th Cir. 2012) (citing Bousley v. United States, 532 U.S. 614, 623 (1998)). Moreover, the actual innocence exception deals with a “severely confined category: cases in which new evidence shows ‘it is more likely than not that no reasonable juror would have convicted [the petitioner].'” McQuiggin v. Perkins, 133 S.Ct. 1924, 1933 (2013) (quoting Schlup v. Delo, 513 U.S. 298, 329 (1995)). For a claim of actual innocence to be credible, a defendant must come forward with “new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial.” Schlup, 513 U.S. at 324. The court “must assess the probative force of the newly presented evidence in connection with the evidence of guilt adduced at trial.” Schlup, 513 U.S. at 332. The Supreme Court has recognized it is an extraordinary case that can meet Schlup's high threshold for establishing actual innocence. See Id. at 321. Ultimately, a defendant must prove that, in light of the new evidence, it is more likely than not that no reasonable juror would have found him guilty beyond a reasonable doubt. Id. at 327-29; House v. Bell, 547 U.S. 518, 536-37 (2006).

         Here, the only allegedly “new reliable evidence” offered by Defendant in support of his purported innocence is student loan documentation (R. 129) he filed to support his declaration statement attached to his Reply (R. 127-1). Israel declares that he “never knew that the wood [block used in place of a cocaine brick] was in My house until after Emmanuel Chenault was allowed to use My bathroom” (id. at ¶ 7); that he “tried to contact Chenault on My cell phone to question him about the anonymous package left under My bathroom cabinet” (id. at ¶ 10); that “Chenault stole cash from My residence when he secretly left (while I was using the bathroom)” (id. at ¶ 9); and that Chenault had “stole[n] My tuition money that I had got through student loan” (id. at ¶ 12). Defendant supplemented the declaration with copies of school loan papers he claims evidence his source for the money in his house that Chenault stole from him. (R. 129).

         Even assuming Israel could establish this loan evidence is “new, ” it is hardly adequate to show that, had it been presented at trial, no reasonable juror would have convicted Israel. The evidence presented at Israel's trial has been carefully reviewed. Law enforcement agents and the cooperating informant testified to the circumstances surrounding the arranged transfer of the purported kilograms of cocaine between Chenault and the CI, and the sale of some of that purported cocaine from Chenault to Israel. These various witnesses explained their participation in or observation of these events, the timing of these events, and the recording or surveillance of some of the events. They testified concerning the physical evidence retrieved from Chenault upon traffic stop and upon search of Israel's house and yard, including the fake cocaine bricks, currency, and the items associated with drug trafficking that were found in Israel's house. Israel's girlfriend also testified at trial, explaining to the jury Israel's instruction for her to remove incriminating items from the bathroom and dispose of the items by throwing them over a fence into an adjoining yard. (R. 95; R. 96 - trial transcripts).

         By declaration, Defendant now claims Chenault left the fake brick of cocaine at his house without his knowledge and stole the money from him. But with the exception of the cash found with Chenault, Israel offers no actual evidence to counter the testimonial details and the physical evidence provided at trial. The loan paperwork now put forth by Israel appears to document that from June 2010 through September 2013 Israel received a total of approximately $29, 000 in student loan funds for purposes of attending Bluegrass Community and Technical College. (R. 129-1, at 2). This documents that Defendant received student loans. However, it is not credible nor sufficient to counter the reasonable inference that the $35, 000 cash found with Defendant Chenault was provided by Israel as payment for a purported kilogram of cocaine. At best, the loan papers show Israel had a source of substantial funds to support Israel's contention that Chenault stole the money from him. But that evidentiary connection is weak, as the documents suggest Israel received the loan monies over more than a three-year period, for schooling, rather than personally retaining and accruing the loan proceeds, and in cash no less.

         This “new” evidence has little probative value based on the other evidence of Israel's involvement with drugs generally and this fake cocaine transaction specifically. Any probative value the evidence does have would not overcome the evidence of guilt at trial. Defendant simply has not shown, based on this purported new evidence, that “it is more likely than not that no reasonable juror would have convicted him.” Schlup, 513 U.S. at 298. These loan documents and Defendant's conclusory statements of what they represent do not meet the demanding standards set forth in Schlup, which requires “evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error.” Schlup, 513 U.S. at 316. As Defendant has not made any effort to show cause and actual prejudice exist to excuse his procedural default, and Defendant has not satisfied the requirements of the actual innocence exception, Defendant's claim that §§ 841 and 846 are unconstitutional is procedurally defaulted.

         Even if Defendant's unconstitutionality claim were not procedurally defaulted, it would still fail on the merits, as neither of the criminal statutes referenced by Defendant is unconstitutional. Defendant attacks § 841 based on subsection (a)(2) of the statute (R. 123, at 10; R. 151-1 at 12-16), but Defendant was convicted under subsection (a)(1). (R. 74). Defendant also attacks the constitutionality of the penalty provision of § 841, provided in subsection (b). However, Defendant fails to recognize that he was convicted under §§ 841 and 846 together. (See R. 74). Even assuming arguendo that Defendant was correct in asserting § 841 independently does not provide a penalty for his conduct specifically, § 841 must be read in conjunction with § 846, which provides that “[a]ny person who attempts or conspires to commit any offense defined in this title shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt.” 21 U.S.C. § 846 (emphasis added).

         To the extent Defendant claims 21 U.S.C. § 841(a)(2) is unconstitutional, the constitutionality of § 841(a)(2) is irrelevant here, as Defendant was convicted under § 841(a)(1). (See R. 74). Construing Defendant's Motion liberally, to the extent Defendant asserts he should have been convicted under § 841(a)(2), such argument fails, as Defendant failed to raise such a ground on direct appeal. See Gibson, 424 F. App'x at 466-67.

         As for 21 U.S.C. § 841(a)(1), the section of the statute under which Defendant was actually convicted, that section states that it is unlawful to knowingly or intentionally “manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.” As previously stated, § 841 must be read in conjunction with § 846. Defendant was found guilty of “knowingly and intentionally attempt[ing] to possess with the intent to distribute 500 grams or more of a mixture or substance containing a detectable amount of cocaine.” (R. 77, at 3, ¶ 1). Whether Defendant actually possessed cocaine and in such quantity is irrelevant. When read in conjunction with § 846, the conduct which is penalized under § 841 effectively becomes the attempt to possess such a quantity of cocaine and, contrary to Defendant's assertion, § 841(b) sets forth a penalty for such.

         Regarding 21 U.S.C. § 846, Defendant claims “the federal law of conspiracy is vague and does not adequately inform citizens as to what is illegal.” (R. 115-1, at 17) (emphasis added). Defendant essentially argues that the statute punishes thought, and not action, and is therefore unconstitutional. Id. However, as previously stated, § 846 must be read in conjunction with § 841. The action that is punished is set forth in § 841, which makes it unlawful “for any person knowingly or intentionally . . . to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.” 21 U.S.C. § 841(a).

         Further, Defendant was not convicted under the conspiracy portion of the statute, but rather the attempt portion.[4] (R. 123, at 10; R. 1, at 1-2). Defendant offers no authority, and this Court is unaware of any, successfully attacking the constitutionality of a statute proscribing an attempt to commit an unlawful act. The constitutionality of § 846 has been upheld numerous times by the Sixth Circuit Court of Appeals. See, e.g., United States v. Mazzio, 48 Fed.Appx. 120, 130 (6th Cir. 2002) (upholding the defendant's conviction for violating §§ 841 and 846 after being the subject of a drug crime investigation); United States v. Spearman, 39 Fed.Appx. 63, 72 (6th Cir. 2002) (ruling § 841 and § 846 constitutional as applied to a defendant convicted of attempt to possess with intent to distribute cocaine as a result of the defendant's involvement in an undercover operation). Therefore, Defendant's argument that 21 U.S.C. §§ 841 and 846 are unconstitutional fails because it is procedurally defaulted and, alternatively, because it is without merit.

         B. Claims of Ineffective Assistance of Counsel

         A post-conviction motion under § 2255 is the proper vehicle for raising claims of ineffective assistance of counsel. United States v. Crowe, 291 F.3d 884, 886 (6th Cir. 2002) (citing United States v. Wunder, 919 F.2d 34, 37 (6th Cir. 1990)). Here, as stated above, Defendant asserts four claims of ineffective assistance of his trial counsel, Benjamin Hicks: 1) failing to properly advise him of his charges; 2) failing to argue against sentence enhancement despite his request; 3) failing at trial to object to a witness's testimony and move to suppress; and 4) failing to present at trial an alternative description of the facts pertaining to the events leading to his arrest. (R. 115, at 4-9).

         The Supreme Court has held that “[t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper function of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland v. Washington, 466 U.S. 668, 686 (1984). To meet this standard, the Supreme Court set forth a two-part test. First, a defendant is required to show that counsel's representation fell “below an objective standard of reasonableness.” Id. at 687-88. To demonstrate this first prong, a defendant must point to specific errors in counsel's performance, and the reviewing court must subject the allegations to rigorous scrutiny, determining “whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.” Id. at 690. In reviewing this prong, the lower court is to apply a deferential standard; there is a “strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Id. at 689.

         The second prong of the test requires a defendant to demonstrate that the deficient performance prejudiced his defense. Id. at 687. Specifically, he must “show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. Thus, an error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error did not affect the judgment. Pough, 442 F.3d at 961. A defendant must establish both prongs by a preponderance of the evidence. Id. at 964. Courts may approach the Strickland analysis in any order, and an insufficient showing on either prong ends the inquiry. Id. at 967; see also Baze v. Parker, 371 F.3d 310, 321 (6th Cir. 2004) (stating “[w]e do not need to address the question of competence, however, if it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice.”) (internal citations omitted).

         1. Misadvising Defendant of the charge against him

         Defendant argues generally that Attorney Hicks advised him as if he had been charged with conspiracy to possess and distribute cocaine, rather than attempt to possess and distribute cocaine as he was actually charged. Israel claims this misadvise was material and prejudiced him, because it influenced his decision not to enter a guilty plea pursuant to a plea agreement and instead proceed to trial. (R. 115-1, at 5). To evidence this error, Defendant attached a letter from trial counsel to Defendant dated December 19, 2014, wherein counsel referred to Defendant as facing a conspiracy charge, rather than an attempt charge. (Id. at 34) (emphasis added).

         The subject letter does, in fact, use the word conspiracy rather than attempt. In considering Defendant's argument, the reference in the letter must be viewed in context. Counsel wrote to Israel to report that he had filed the motion to suppress Defendant wanted filed. (Id.). He also informed Israel that he believed, based on the law and the affidavit supporting the challenged search warrant, that the evidence taken from his house would not be suppressed. He went on to note that even if those items taken from Israel's house were to be suppressed, because of the other case evidence, “you would still be facing the same conspiracy charge.” (Id.). Thus, counsel did in fact refer to it as a conspiracy charge rather than a charge of attempt.

         But viewed in context, this single mistaken reference in counsel's letter does not constitute performance by counsel falling “below an objective standard of reasonableness.” Strickland, 466 U.S. at 687-88. Defendant essentially concedes as much because he further argues not just that the letter contains an error; rather, he points to the letter as evidence corroborating his more general assertion that counsel actually misadvised him about the substance of what he was charged with. Defendant sets forth the legal elements for conspiracy and attempt in his Motion, maintains that counsel never explained to him the elements necessary to prove the charge of attempt, and seems to suggest that counsel instead advised him of the elements of conspiracy, though Israel does not expressly allege this. Israel contends that if Attorney Hicks had actually advised him about the elements of attempt, he would have entered into a plea agreement with the United States. (R. 115-1, at 5, 7, 32-33).

         As noted above, when viewed in context, the letter itself does not actually advise Defendant about the elements of a conspiracy charge or an attempt charge. To the extent Israel points to the letter as evidencing counsel actually believed him to be charged with conspiracy and, consequently, counsel's representation of and advice to him was all done based upon this erroneous premise as to the charge, Israel has not presented any evidence of this, just conclusory statements from which Israel would like the Court to infer that counsel did so advise. But the affidavit of counsel explains that the crux of his communications with Israel were about ways to try and defend the case if case discovery showed that Defendant knowingly received what he thought to be cocaine in exchange for over $30, 000. (R. 123-1, at ¶ 3). Counsel states he advised Defendant that if the jury believed from the evidence that he did this, he would be convicted. (Id. at ¶ 4). Therefore, Defendant has not shown that counsel rendered deficient performance based upon the mistaken reference to conspiracy in the letter.

         Moreover, even assuming Defendant could show by a preponderance of evidence that Attorney Hicks actually did counsel and advise him based on an incorrect charge, and that this conduct by counsel fell below an objective standard of reasonableness, Defendant has not shown by a preponderance of evidence that he was prejudiced. Defendant maintains that counsel's conduct did prejudice him because it influenced his decision not to enter into a plea agreement with the United States and change his plea. (R. 115-1, at 5). Therefore, according to Defendant, his decision to maintain his not guilty plea on the sole count against him rather than to plead guilty was unintelligent, unknowing, and involuntary.[5] (Id. at 7).

         Israel's claimed unawareness of actually being charged with attempt due to his counsel's error could not have influenced his plea decision as he alleges. As the Government points out, the record reflects Israel had been informed of his actual charge of attempting to possess with intent to distribute cocaine, both at the outset of the case (see R. 13, Criminal Minutes from Arraignment and Plea, “Copy of Indictment given to the defendant.” and “The Court advised Defendant of the charges and potential penalties.”) and during the trial (see R. 96, at 129, jury instruction conference, “the first sentence of paragraph 1, that should read, ‘The defendants are charged in Counts 1 and 2 of the indictment with the crime of attempting to possess, ”; R. 96, at 143, court's instructions to the jury, “defendants are charged in Counts 1 and 2 with attempting to commit the crime of possession with the intent to distribute 500 grams or more of a mixture or substance containing a detectable amount of cocaine”).

         In his untimely Reply, Defendant points out the Strickland standard applies to his counsel informing him of his charge, not the Court doing so. The Court proceedings are, however, relevant to show that even if defense counsel's performance were deficient, Defendant cannot satisfy Strickland's prejudice prong because he had been informed that he was charged with attempt.

         Defendant tries to say he did not understand the Court's explanation of the charges during trial due to confusion caused by Attorney Hicks's prior representation to him that he was charged with conspiracy. This is disingenuous. Defendant was also informed of the charge at his initial appearance and received a copy of the indictment. In fact, the record reflects that Defendant had been previously represented by a different court-appointed attorney, Adele Brown, who had been appointed to represent him at his September 10, 2014 initial appearance and arraignment. (See R. 13). Indeed, the transcript of that proceeding reveals Defendant was not only informed but confirmed he understood the charge against him.

MS. BROWN: Yes, Your Honor, I've obtained a copy of the indictment and have given Mr. Israel one. We have reviewed it together. I believe he understands the charge against him, and also the forfeiture allegation.
And we have discussed the penalties, prepared to waive formal reading, and enter a plea of not guilty at this time.
THE COURT: Thank you.
For the defendants I am going to briefly talk about the content of the indictment with you, including the charge and the penalties. I'm doing that just to make sure that you do on the record have that information. . . . .
The indictment contains one substantive count against each of you. It actually alleges the same conduct but in different counts, one for each defendant.
Mr. Chenault is named in Count 1, Mr. Israel is Count 2.
The charge is that on or about July 1st, 2014, in Fayette County, in this district, that the defendant did knowingly and intentionally attempt to possess with the intent to distribute 500 grams or more of a mixture or ...

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