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United States v. Cameron

United States District Court, E.D. Kentucky, Northern Division, Covington

October 25, 2018

UNITED STATES OF AMERICA PLAINTIFF
v.
ANTHONY CAMERON DEFENDANT

          REPORT AND RECOMMENDATION

          CANDACE J. SMITH, JUDGE

         This matter is before the Court on pro se Defendant Anthony Cameron's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody. (R. 78; R. 81). The United States has filed its Response (R. 85) and Defendant has filed his Reply (R. 87). Having all relevant documents before the Court, the matter is ripe for consideration and preparation of a Report and Recommendation. See 28 U.S.C. § 636(b). For the reasons stated below, it will be recommended that Defendant's § 2255 Motion be denied.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         On January 28, 2016, Defendant Cameron, pursuant to a written Plea Agreement, entered a plea of guilty to conspiracy to distribute 50 grams or more of a mixture or substance containing methamphetamine, a Schedule II controlled substance. (R. 65). As part of his Plea Agreement, Cameron admitted that he had prior federal felony drug convictions in this Court for possession with intent to distribute cocaine in 2001 (see 2:00-cr-34) and 2006 (see 2:06-cr-54) (id. at 3, ¶¶ 3(j), (k)), and agreed to recommended sentencing guidelines calculations pursuant to which he qualified as a career offender (id. at 4, ¶ 5(c)).

         Defendant was sentenced and Judgment entered on June 1, 2016. (R. 64; R. 66). At sentencing, no objections were made to the Presentence Investigation Report, which was adopted by the Court. (R. 64). Cameron was sentenced to a 262-month term of incarceration and 8 years of supervised release. (R. 66). Defendant was represented in both of his prior federal drug cases and in this case by the same retained counsel, Darrell A. Cox. In his 2000 and 2006 cases, Cameron did not challenge the validity of either prior conviction by direct appeal or timely collateral attack. In the instant case, Cameron did not object to his career offender status designation prior to sentencing and did not file a direct appeal.

         On December 21, 2016, Defendant filed his Motion to Vacate Under 28 U.S.C. § 2255. (R. 78). He argued therein that his counsel, Cox, was ineffective because: (1) Cox failed to challenge the validity of Cameron's prior drug convictions despite no evidence of intent to distribute; (2) Cox failed to object to the use of the prior convictions although Cox knew Cameron was not actually selling the cocaine in 2006; (3) Cox ineffectively represented Cameron in his prior cases because he did not challenge the intent to distribute elements of the offenses; and (4) Cox did not ensure that Cameron understood the nature and consequences of the offense. (R. 78). Additionally, Cameron argued the federal district court erred by failing to comply with the requirements of Rule 11 in that his pleas in the prior cases were defective, and it did not ensure that he understood the nature and consequences of the offenses. (Id.).

         Cameron's initial motion filing did not, however, conform to the filing requirements of Rule 2 of the Rules Governing Section 2255 Proceedings in the United States District Courts. Therefore, he was ordered to complete and file the required AO Form 243 for filing a § 2255 Motion. (R. 80). On January 27, 2017, he filed a completed Form 243, Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (R. 81) along with a Memorandum Brief in Support (R. 81-1). In this second filing, Cameron limited his Motion to Vacate to two specific claims:

Movant asserts that defense counsel was ineffective for failing to challenge the validity of his prior drug convictions that were used as predicate offenses to deem him a career offender. Specifically, Movant's claim is a focus on his prior federal drug conviction for possession with intent to distribute cocaine.

(R. 81 at 4). Cameron argues there was insufficient evidence of an intent to distribute in 2006, which counsel failed to raise prior to sentencing or during sentencing. (Id.). For his second claim, Cameron says:

Movant also asserts that his substantial rights were affected in the process of his Constitutional claim mentioned above in ground one by the district court's failure to comply with Rule 11 requirements. Movant contends that his substantial rights would be further affected if the court were to turn a blind eye to a defective plea, a conviction used to enhance Movant's sentence and leave him classified as a career offender.

(Id. at 5). Also, in his Reply discussed below, Cameron asserts that he is making only ineffective assistance of counsel claims and that his second claim is that “Counsel was ineffective for failing to object to Fed. R. Crim. P. Rule 11 violations.” (R. 87 at 1).

         In its Response to the Motion to Vacate, the United States argues that it is too late for Cameron to challenge his 2006 conviction, that he procedurally defaulted and waived any substantive challenge to his career offender status, and that he failed to establish a claim of ineffective of counsel in that he made no effort to demonstrate prejudice. (R. 85). The Response includes the affidavit of counsel, Darrell A. Cox, that Cameron was fully advised of possible defenses and never asked Cox to pursue any outcome other than a guilty plea. (R. 85-1).

         In reply, Cameron states he is raising only ineffective assistance of counsel claims, which do not involve any procedural bar. (R. 87 at 2). He admits he did not challenge his 2006 conviction within one year from the date that judgment became final. (Id. at 3). He argues that he can, nonetheless, raise the challenge now via ineffective assistance of his counsel because he lacked understanding of the nature of the charge against him and was not properly informed of the elements of the offense and that he was “pleading guilty to [a] serious drug offense.” (Id. at 4-8). He continues that the 10 grams of cocaine he possessed in 2006 was for his personal use and not sufficient to infer an intent to distribute. (Id. at 7). He submits that as a result of counsel's deficient performance in the instant case, he “received 262 months imprisonment as opposed to a minimum, his mandatory minimum of 120 months he would have received absent counsel's unprofessional errors and omissions.” (Id. at 8). Finally, Cameron argues that Attorney Cox's affidavit is invalid in that it is not signed, not dated, and does not have a certified stamp or seal. (Id.).[1]

         II. ANALYSIS

         A. Ineffective Assistance of Counsel Standard

         To successfully assert an ineffective assistance of counsel claim, a defendant must prove both deficient performance and prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984); Pough v. United States, 442 F.3d 959, 964 (6th Cir.2006) (noting that a defendant must prove ineffective assistance of counsel by a preponderance of the evidence). To prove deficient performance, a defendant must show that “counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687. A defendant 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 688. Judicial scrutiny of counsel's performance, however, is “highly deferential, ” consisting of a “strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Id. at 689. Notably, “[a] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.” Id.

         Deficient performance is considered constitutionally prejudicial only when “counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. at 687. In order to prove prejudice, a defendant “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, “[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.” Id. at 691. When evaluating prejudice, courts generally must take into consideration the “totality of the evidence before the judge or jury.” Id. at 695. Courts may approach the Strickland analysis in any order, and an insufficient showing on either prong ends the inquiry. Id. at 697. (“[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies…. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice ... that course should be followed.”).

         In the context of a guilty plea, where a defendant is represented by counsel and enters a guilty plea upon advice of counsel, the voluntariness of the plea depends on whether counsel's advice “was within the range of competence demanded of attorneys in criminal cases.” Hill v. Lockhart, 474 U.S. 52, 56 (1985). While the deficient performance prong of the Strickland test remains the same, to establish prejudice a defendant “must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill, 474 U.S. at 59.

         B. Counsel Was Not Ineffective for Failure to Challenge Use of Cameron's 2006 Conviction in his 2015 Criminal Case.

         Cameron complains in his Motion to Vacate that his counsel performed deficiently by not challenging in this case the use of Cameron's 2006 conviction to increase statutory sentencing and to designate him as a career offender. It appears Defendant is arguing that Attorney Cox could have challenged the 2006 conviction in response to the Government's 21 U.S.C. § 851 notice (R. 20) and/or by raising objections to the Presentence Investigation Report. (See R. 87 at 3-4).

         The Indictment in this case charged Cameron with, among other things, conspiracy to distribute 50 grams or more of a mixture or substance containing methamphetamine. (R. 16 at 1). The applicable penalty statute provides for a term of incarceration of at least 5 years and not more than 40 years, a fine of not more than $5, 000, 000, and at least 4 years of supervised release. 21 U.S.C. § 841(b)(1)(B). This was set forth for Defendant's informational purposes on the Penalties page of the Indictment. (R. 16 at 6). But that page also informed Cameron that if he has a “prior drug felony” the penalty is increased to at least 10 years and not more than life in prison, a fine of not more than $8, 000, 000, and at least 8 years of supervised release. (Id.).[2]

         The United States, pursuant to 21 U.S.C. § 851(a)(1), filed a notice of Defendant's prior conviction information on December 10, 2015. (R. 20). While Defendant argues counsel should have objected to and challenged this § 851 notice's reference to and reliance upon his 2006 conviction, it should first be pointed out that the Prior Conviction Information filed by the Government noted not just Defendant's 2006 conviction but also his 2001 conviction. (Id.). The penalty statute requires only one prior felony drug offense for the increased penalty to apply. See 21 U.S.C. § 841(b)(1)(B). But regardless, because federal law, 21 U.S.C. § 802(44), defines a “felony drug offense” as an offense punishable by imprisonment for more than one year under any federal law prohibiting or restricting conduct relating to narcotic drugs, Defendant's 2006 conviction for possession with intent to distribute cocaine, for which conviction he received a 15-month sentence, qualifies as a prior “felony drug offense” under the statute. (See No. 2:06-cr-54, R. 19, Judgment). Thus, the statutory penalty enhancement was correctly applied and therefore there was no deficiency in Attorney Cox's performance by not contesting the Government's § 851 notice filing that listed the 2006 conviction.

         Defendant also argues his 2006 conviction was improperly used as a predicate offense to qualify him as a career offender for sentencing guidelines calculation purposes in this case. (See R. 78 at 6; R. 81 at 4-5). A career offender is ...


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