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United States v. Hamilton

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

April 1, 2018

UNITED STATES OF AMERICA, Plaintiff/Respondent,
BRIAN HAMILTON Defendant/Movant.


          Robert E. Wier, United States Magistrate Judge

         Movant, Brian Hamilton, is a federal inmate. On August 9, 2017, Hamilton filed a pro se[1]motion under 28 U.S.C. § 2255. See generally DE 210 (Motion). The United States responded in opposition. DE 218 (Response). Hamilton replied. DE 219 (Reply).

         Per normal practice, the District assigned the matter to the undersigned for a recommended disposition. The Court determined to conduct an evidentiary hearing and, accordingly, appointed counsel for Hamilton. See DE 221 (Order). The Court held the evidentiary hearing on December 15, 2017, DE 230 (Minute Entry Order), and has carefully evaluated the full record, all briefing, and the hearing evidence (including three witnesses and three exhibits). For the following reasons, the Court RECOMMENDS that the District Judge GRANT § 2255 relief (DE 210)-on the terms stated below-to the extent Hon. Andrew Stephens, Hamilton's trial-level counsel, ineffectively assisted Movant regarding his plea offer, otherwise DENY § 2255 relief (DE 210), and issue no Certificate of Appealability as to the rejected claims.

         Counsel failed to effectively inform Hamilton of the terms and mechanics of a plea offer from the United States, particularly the import of the prosecutor's plea deadline. That failure caused Hamilton to forgo a plea deal that included a third-point reduction, under U.S.S.G. § 3E1.1(b), for timely acceptance of responsibility. The representation fell below the Strickland performance standard and prejudiced Hamilton. As such, the Court should grant the motion, tailor appropriate relief, and give Hamilton the sentencing benefit of the plea deal that counsel's ineffective conduct caused to lapse.[2]


         In October 2015, a grand jury indicted Hamilton on one count of conspiring to defraud the Government (Count 1), four count of wire fraud (Counts 29-32), and two counts of aggravated identity theft (Counts 41-42), in violation of 18 U.S.C. §§ 286, 1343, and 1028(a)(1). DE 1 (Indictment). On May 10, 2016, Hamilton pleaded guilty to the conspiracy and one count of both wire fraud and aggravated identity theft. DE 142 (Minute Entry - Rearraignment). Judge Thapar sentenced Hamilton to 82-months' imprisonment. DE 193 (Judgment). Hamilton appealed. DE 195 (Notice). Hamilton, to the court of appeals, argued “the district court erred by not awarding him a minor-role reduction or an additional one-level reduction for acceptance of responsibility.” DE 207 (6th Cir. Order Dismissing). The Sixth Circuit dismissed the appeal:

Hamilton consented to a magistrate judge conducting his rearraignment. The magistrate judge discussed Hamilton's appellate-waiver provision with him in depth, noting its breadth. Hamilton stated that he understood the provision, that he had read it carefully, and that he had reviewed it with his counsel. That his sentence had not yet been imposed and he could not know if an error might arise during sentencing does not render his plea involuntary or unknowing. See United States v. Coker, 514 F.3d 562, 574 (6th Cir. 2008). His plea agreement set out sentencing recommendations, which did not include a minor-role reduction or an additional one-level reduction for acceptance of responsibility. If Hamilton wanted to appeal these issues, he should have preserved his right to appeal them. See id.

Id. at 1-2.

         On August 9, 2017, Hamilton timely submitted a § 2255 motion to vacate. DE 210. The motion renews both direct-appeal contentions and adds the claim that counsel's ineffective assistance during plea negotiations cost him an offense level reduction for acceptance of responsibility. The Government responded. DE 218. Hamilton replied. DE 219-1. The motion, following a hearing, stands ripe for review.


         Under 28 U.S.C. § 2255, a federal prisoner may obtain post-conviction relief if his sentence violates the Constitution or federal law, the federal court lacked jurisdiction to impose such sentence, or the sentence exceeds the maximum authorized by law. 28 U.S.C. § 2255(a); Mallett v. United States, 334 F.3d 491, 496-97 (6th Cir. 2003) (“In order to prevail upon a § 2255 motion, the movant must allege as a basis for relief: ‘(1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law that was so fundamental as to render the entire proceeding invalid.'” (quoting Weinberger v. United States, 268 F.3d 346, 351 (6th Cir. 2001))). A defendant alleging a constitutional basis must establish “an error of constitutional magnitude” and show that the error had a “substantial and injurious effect or influence on the proceedings” in order to obtain § 2255 relief. Watson v. United States, 165 F.3d 486, 488 (6th Cir. 1999) (citing Brecht v. Abrahamson, 113 S.Ct. 1710, 1721-22 (1993)). When alleging a non-constitutional error, a defendant must prove that the error constituted 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.” United States v. Ferguson, 918 F.2d 627, 630 (6th Cir. 1990) (quoting Hill v. United States, 82 S.Ct. 468, 471 (1968)); see also Watson, 165 F.3d at 488. In making a § 2255 motion, a movant generally bears the burden of proving factual assertions by a preponderance of the evidence. McQueen v. United States, 58 F. App'x 73, 76 (6th Cir. 2003) (per curiam) (“Defendants seeking to set aside their sentences pursuant to 28 U.S.C. § 2255 have the burden of sustaining their contentions by a preponderance of the evidence.”).


         In his § 2255 motion, Hamilton requests relief based on two sentence validity challenges- both previously dismissed on direct appeal. Specifically, Defendant contends the sentencing judge erred by not awarding him a minor-role reduction and by not overriding the Government's decision to deny him (by not making the motion) an additional one-level reduction for acceptance of responsibility. Both sentencing attacks fail under 28 U.S.C. § 2255, as waived and otherwise without merit.[3]

         A. Collateral Attack Waiver

         The Court first notes that Hamilton, in his plea agreement, waived “the right to attack collaterally the guilty plea, conviction, and sentence” except for “claims of ineffective assistance of counsel[.]” DE 188, at ¶ 13. At least other than “where a defendant argues that his plea was not knowing or voluntary, or was the product of ineffective assistance of counsel[, ]” “a defendant's informed and voluntary waiver of the right to collaterally attack a conviction and sentence is enforceable.” In re Acosta, 480 F.3d 421, 422 (6th Cir. 2007) (enforcing appeal waiver). Hamilton, by executing the plea, acknowledged that he knowingly and voluntarily entered into the agreement and that he understood its terms after reviewing the full document with counsel. DE 188, at ¶ 22. At rearraignment, Hamilton, under oath, confirmed as much to the Court. DE 206, at 21. Judge Ingram also specifically reviewed the contents of the collateral attack waiver. Id. at 47-49. The record repeatedly confirms that Hamilton's responses were voluntary, verified, and competently made. Id. at 10, 18, 62-63. Solemn declarations in open court “carry a strong presumption of verity” and “constitute a formidable barrier” in subsequent collateral proceedings. Blackledge v. Allison, 97 S.Ct. 1621, 1629 (1977). Considering Defendant's representations in the plea agreement and during rearraignment, and the significance of his sworn in-court statements, the Court can only conclude that Hamilton made an “informed and voluntary” waiver. In re Acosta, 480 F.3d at 422. Accordingly, and as with the appellate waiver already enforced, he remains bound by it. Since Hamilton claims no accompanying ineffective assistance as to the waiver term, the waiver bars consideration of his role reduction and sua sponte assistance reduction claims.

         Alternatively-and given the autonomous ineffective-assistance claim-the Court addresses the claims' merits. As explained below, Hamilton's minor role reduction overtures are untenable and his request for Court usurpation of timely assistance discretion is baseless.

         B. Role Reduction

         Hamilton claims entitlement to a minor role reduction under U.S.S.G. § 3B1.2, based on the self-serving claim that he was a fully subservient actor in the crime. DE 210, at 7. Section 3B1.2(b) provides for a two-level reduction for minor participants that are “substantially less culpable than the average participant[.]” U.S.S.G. § 3B1.2 cmt. 3(A) (emphasis added). Hamilton's counsel argued for the same reduction in both formal (DE 182) and informal (DE 198, at 23-24) PSR objections, as well as at sentencing. DE 200, at 13-17. In essence, Stephens argued that Defendant was incarcerated for a year of the alleged eighteen-month conspiracy, that he rarely aided the conspiracy-only at the explicit behest of the major figures-and that he received but minimal monetary benefit. Hamilton tries to repeat the theories here.

         Judge Thapar, then the District Judge assigned to the case, thoughtfully considered, and then rejected, Hamilton's minor role claim. See DE 200, at 13, 16-17. The PIR substantiated the finding that Hamilton was not a minor participant. See DE 198, at 27-28 (Sealed PIR). Hamilton objected but presented no evidence to place the finding in dispute under Rule 32. Judge Thapar recognized this, as a matter of proof and procedure, and denied the objection on that basis.[4] See DE 200, at 16. Hamilton failed to lodge a supported objection then, and there is no basis for revisiting that issue now, under § 2255.

         C. Sua Sponte Reduction

         Hamilton also bemoans the sentencing court's failure to grant him a further one-point reduction for acceptance of responsibility under U.S.S.G. § 3E1.1(b), [5] notwithstanding the Government's declination to move for that relief. DE 210, at 5. Defendant generally acknowledges that “the decision whether to file a motion for an additional one-point reduction [is committed] to the Government's discretion.” United States v. Lapsins, 570 F.3d 758, 769 (6th Cir. 2009); see DE 210, at 5. Nonetheless, Hamilton believes that the sentencing court should have unilaterally granted the point.

         There are two narrow exceptions to the deferential posture courts adopt[6] when reviewing a prosecutor's exercise of § 3E1.1(b) discretion. “[T]he government may refuse to move for the third-level reduction so long as the government's reason for refusal [1] is not based upon a constitutionally impermissible factor and [2] is not arbitrary.” United States v. Coleman, 627 F.3d 205, 215 (6th Cir. 2010); see United States v. Collins, 683 F.3d 697, 705 (6th Cir. 2012) (“The defendant must present objective evidence of an improper motive or arbitrary action to overcome the government's decision not to file a § 3E1.1(b) motion.”) (internal citations omitted). Hamilton does not allege a constitutional infirmity (nor is there any record suggestion of one). Hamilton also fails to allege an arbitrary act. Indeed, the Government identified a valid non-arbitrary basis for the decision: Hamilton's guilty plea, less than a week before trial, came too late to preserve prosecutorial resources. See DE 218, at 5. The factual record clearly supports the Government's stated rationale and forecloses Hamilton's conclusory challenge. DE 185 (May 2 Gupta e-mail noting “the United States has already subpoena'd [sic] and prepared over 20 witnesses for trial”); DE 200, at 9 (“This is not a trial that could be prepared in a week, or even two weeks[;] AUSA Gupta started preparing as early as February or March.”). Accordingly, the § 3E1.1(b) prosecutorial discretion presumption controls. See Collins, 683 F.3d at 707 (holding Government's decision to withhold motion non-arbitrary where prosecution undertook trial-like preparations to defend a suppression motion); Gilley v. United States, No. 1:09-CR-45-HSM-WBC, 2016 WL 9344001, at *6 n.5 (E.D. Tenn. Jan. 28, 2016) (“[A] valid, non-arbitrary government interest[ ] for withholding a section 3E1.1(b) motion . . . [is] expressly identified in the text of the guideline itself-avoiding costs associated with preparation for a trial on the merits.”). The Government had valid, non-arbitrary motives for its § 3E1.1(b) approach. Section 2255 offers no relief in this context. Hamilton does not argue against this, rather entreating the Court to appropriate prosecutor discretion. DE 210, at 5 (“taking discretion away from the Government”). The path Hamilton urges is one precedent forecloses; the Court will not take it.


         Hamilton also requests relief based on alleged ineffective assistance of his former counsel (Hon. Andrew M. Stephens) regarding a lapsed plea offer and the attendant loss of an offense level reduction for § 3E1.1(b) timely acceptance of responsibility. Per Hamilton, Stephens failed to explain the meaning and effect of the prosecutor's plea offer deadline. The plea lapsed, and Hamilton lost the § 3E1.1(b) point.

         For the reasons explained below, the Court finds that Stephens deficiently failed to convey the possibility of irrevocable third-point loss and ineffectively advised Hamilton that the prosecutorial deadline was not controlling. Further, Hamilton established a reasonable probability that, if accurately advised, he would have accepted the plea before it lapsed. Hamilton ultimately accepted-and was sentenced based on-an agreement that differed only by omitting the third point reduction, a point lost by misadvice. Nothing in the record suggests that, had Hamilton accepted the original deal, such a plea would have been withdrawn, gone unaccepted, or that the resulting sentence would not have been similarly situated within the lower guideline range. Hamilton is thus entitled to relief on this distinct and limited ground.

         A. Strickland Standard

         When asserting an ineffective assistance claim, a movant must prove both deficient performance and prejudice. Strickland v. Washington, 104 S.Ct. 2052, 2064 (1984); Campbell v. Bradshaw, 674 F.3d 578, 586 (6th Cir. 2012); Pough v. United States, 442 F.3d 959, 964 (6th Cir. 2006) (noting that a movant must prove ineffective assistance by a preponderance of the evidence). In order to prove deficient performance, a movant must show that “counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.” Strickland, 104 S.Ct. at 2064. A movant meets this burden by showing “that counsel's representation fell below an objective standard of reasonableness” as measured under “prevailing professional norms” and evaluated “considering all the circumstances.” Id. at 2064- 65. Judicial scrutiny of counsel's performance, however, is “highly deferential, ” featuring a “strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance[.]” Id. at 2065.

         In order to prove prejudice, a movant “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 2068. When evaluating prejudice, courts generally must take into consideration the “totality of the evidence before the judge or jury.” Id. at 2069. “To show prejudice from ineffective assistance of counsel where a plea offer has lapsed or been rejected because of counsel's deficient performance, defendants must demonstrate a reasonable probability they would have accepted the earlier plea offer had they been afforded effective assistance of counsel.” Missouri v. Frye, 132 S.Ct. 1399, 1409 (2012). Ultimately, to satisfy the Strickland prejudice prong in the plea bargaining context, a movant must “show that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer's terms would have been less severe than under the judgment and sentence that in fact were imposed.” Lafler v. Cooper, 132 S.Ct. 1376, 1385 (2012).[8]

         B. Performance

         Hamilton's deficient performance claim boils down to two key questions: one factual, one legal. First, what did Stephens tell, or not tell, Hamilton before the April 11 deadline? Second, were Stephens's communications or omissions consistent with prevailing professional standards under the circumstances? The Court turns to the record to resolve the former. i. Undisputed Facts On November 24, 2015, the Government sent defense counsel a letter broaching the possibility of a plea agreement. DE 185, at 8-9. A month later, the prosecutor, Hon. Neeraj Gupta, contacted Stephens again, provided the broad contours of a possible plea agreement, and established a January 25, 2016, expiration for all existing offers. Id. at 8. Three days after that deadline expired, and given an interim trial continuance, DE 107, Gupta contacted Stephens to note the expiration, and offered new terms attached to an April 11, 2016, deadline. Id. at 7. Gupta stressed that missing the April deadline would forfeit the third point for timely acceptance. Stephens's first substantive response came over two months later-twelve days before offer expiration-and requested a plea status update. Id. at 6. Gupta's same-day response restated the terms offered in January and explicitly reiterated that: “Brian Hamilton can get the third point for acceptance of responsibility if we can sign a plea agreement on or before April 11.” Id. (emphasis added). The next day, March 31, 2016, Stephens indicated that “Brian [Hamilton] is most certainly not interested in a trial.” Id. at 5. Stephens and Gupta scheduled a plea discussion for ...

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