United States District Court, E.D. Kentucky, Central Division
REPORT AND RECOMMENDATION
dace J. Smith, United States Magistrate Judge
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. (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)
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).
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
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).
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
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
after determining that Defendant qualified as a career
offender, his base offense level was increased to a level 37.
(Id. at ¶ 32).
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).
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.
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.
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).
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
§ 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.
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. See Regalado v. United
States, 334 F.3d 520, 527-28 (6th Cir. 2003).
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.
his unconstitutionality claim has Israel argued his actual
innocence. 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,
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).
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
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.
“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.
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).
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.
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.
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. §
Defendant was not convicted under the conspiracy
portion of the statute, but rather the attempt
portion. (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.
Claims of Ineffective Assistance of Counsel
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).
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
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).
Misadvising Defendant of the charge against him
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).
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.
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,
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.
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. (Id. at
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”).
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.
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 ...