The opinion of the court was delivered by: Edgar
Federal prisoner Jasmine Clark ("Clark") moves for post-conviction relief pursuant to 28 U.S.C. § 2255. Clark contends her conviction was obtained by an involuntary and coerced guilty plea because her attorney told her that the government had a 98% chance of winning the case which made her think she would received a thirty year sentence; thus, frightening her into entering a guilty plea. Clark also maintains that her conviction should be vacated because the government never presented evidence that she sold drugs to a confidential informant ("CI") or a federal agent. Lastly, Clark contends trial counsel was ineffective. Specifically, she claims that although she had a competent attorney, he did not "put the appropiate [sic] effort towards [her] case would I have paid him myself. The advice he gave me was not benefitial [sic]. He's also done and made decisions concerning my case that he didn't get permission from me or consulting me." [Court File No. 1, at 4]. The United States opposes the motion.
After reviewing the record, the Court concludes that Clark's § 2255 motion will be DENIED.
The record conclusively shows that Clark is not entitled to any relief under 28 U.S.C. § 2255. There is no need for an evidentiary hearing.
Clark has filed two documents which the Court treats as motions to amend her § 2255 motion [Court File Nos. 4 & 5]. Clark requests to be "re-sentenced being that my enhancements that I have, have been ruled unconstitutional" [Court File No. 4]. In her second motion to amend, she maintains that her enhancement is unconstitutional under the ruling of Blakely v. Washington, 542 U.S.296 (2004)(invalidating a Washington State criminal sentence because the facts supporting a sentence enhancement were neither admitted by the defendant nor found by a jury in violation of the Sixth Amendment right to a jury trial)and United States v. Booker, 543 U.S. 220 (2005) (Extending the holding of Blakely to the United States Sentencing Guidelines, the Supreme Court held the mandatory nature of the federal sentencing guidelines rendered them incompatible with the Sixth Amendment guarantee to the right to a jury trial) [Court File No. 5]. The Supreme Court, applying the Blakely analysis to the Federal Sentencing Guidelines, held in Booker that "[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the [statutory] maximum authorized by the facts established by the plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt." Booker, 543 U.S. at 244.
Clark was sentenced as a career offender because, although she was sentenced on her prior convictions in a single court appearance while represented by the same attorney, she was convicted of four prior state felony drug offenses as a result of three separate indictments.*fn1 Clark's status as a career offender was based on prior convictions.*fn2 Therefore, since prior convictions need not be found by a jury or beyond a reasonable doubt, Blakely and Booker are not applicable to her career offender status. Consequently, since Clark's sentence was enhanced based on prior convictions, her sentence does not violate Blakely or Booker.
Regardless, even if the holdings in Blakely and Booker applied, neither Blakely nor Booker are retroactively applicable. Clark asserts her sentence was enhanced with prior drug convictions. In light of the Blakely and Booker decisions, Clark contends the Court should re-sentence her without the sentencing enhancement. Blakely was decided on June 24, 2004, and Booker was decided on January 12, 2005. Had the Supreme Court made Blakely or Booker retroactively applicable to cases on collateral review, Clark's motions to amend, which were filed on January 18, 2005 and January 20, 2005, would be timely as the one-year statute of limitations would not have begun to run until the "date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review[.]" 28 U.S.C. § 2255 (3). However, the Supreme Court in Blakely and Booker did not make those decisions retroactive. Indeed, the Supreme Court's decision in Schriro v. Summerlin, 542 U.S. 348 (2004),*fn3 indicates that it is unlikely that Blakely will be given retroactive effect in the future.
The Court's research indicates that the majority of courts who have addressed this issue have determined Blakely and Booker are not applicable to motions filed under § 2255. See Humphress v. United States, 398 F.3d 855, 860 (6th Cir. 2005), cert. denied, 126 S.Ct. 199 (2005) (The Sixth Circuit concluded that Booker's rule does not apply retroactively in collateral proceedings); In re Anderson, 396 F.3d 1336 (11th Cir. Jan. 21, 2005) ("It follows that because Booker, like Blakely and Ring, is based on an extension of Apprendi, Anderson cannot show that the Supreme Court has made that decision [Booker] retroactive to cases already final on direct review."); Hamlin v. United States, 2005 WL 102959 (D.Me. Jan. 19, 2005) (unpublished) (interpreted Booker to apply only to cases on direct review); United States v. Traeger, 325 F.Supp.2d 860 (N.D. Ill., 2004) (Blakely decision didnot apply retroactively); United States v. Harp, 2004 WL 1636251 (N.D. Iowa 2004) (unpublished) (collateral relief requested in light of Blakely denied). In the future, if the Supreme Court makes Blakely or Booker retroactively applicable to cases on collateral review, Clark can make application for relief at that time, assuming she has a viable Blakely/Booker claim. However, at this time Clark has no viable claim under Blakely or Booker.
Accordingly, Clark's motions to amend [Court File Nos. 4 & 5] are DENIED because her Blakely/Booker claim is futile. First, the motions are futile because Blakely/Booker did not preclude enhancement based on prior convictions. Second, the motions are futile in light of the fact that the Supreme Court has not instructed that Blakely or Booker should apply retroactively to cases pending on collateral review.
A federal prisoner may file a motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence on the ground that the sentence was imposed in violation of the United States Constitution. To obtain relief under § 2255 based on an alleged constitutional error, Clark bears the burden of establishing an error of constitutional magnitude which had a substantial and injurious effect or influence on the criminal proceedings. Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993); Hill v. United States, 368 U.S. 424, 428 (1962); Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003); Watson v. United States, 165 F.3d 486, 488 (6th Cir.1999). To warrant relief under § 2255, Clark is required to show a fundamental defect in the criminal proceedings which inherently results in a complete miscarriage of justice or an egregious error that rises to the level of a violation of constitutional due process. Davis v. United States, 417 U.S. 333, 346 (1974); Griffin, 330 F.3d at 736; Gall v. United States, 21 F.3d 107, 109 (6th Cir.1994).
On March 13, 2002, a federal grand jury returned a two-count indictment charging Clark with drug offenses. Clark was charged in counts one and two with distribution of cocaine base crack in violation of 21 U.S.C. § 841 (a)(1) and (b)(1)(C). Clark pleaded guilty to Count One of the indictment and was subsequently sentenced by this Court to a term of 188 months imprisonment to be followed by six years of supervised release. Clark filed a direct appeal. The Sixth Circuit Court of Appeals affirmed this Court's judgment and issued a mandate on September 7, 2004. See United States v. Clark, 106 Fed.Appx. 434 (6th Cir.) (unpublished), cert. denied, 543 U.S. 1015 (2004). The Supreme Court of the United States denied Clark's petition for writ of certiorari on November 29, 2004. Clark filed her motion under 28 U.S.C. § 2255 on or about June 11, 2004, prior to the resolution of her direct appeal. However, since her direct appeal is no longer pending before the United States Court of Appeals for the Sixth Circuit, the Court will proceed to consider Clark's § 2255 motion.*fn4
The following recitation of the facts is from the Presentence Investigation Report ("PSR"): On October 5, 2001, agents working with the 17th Judicial District Drug and Violent Crime Task Force received a telephone call from a Confidential Informant (CI) in Shelbyville, Bedford County, Tennessee. During this phone call, the CI informed agents that a black female named Jasmine Clark was involved in the illegal distribution of crack cocaine from Sevier Street, in Shelbyville. During this telephone call the CI agreed to assist the Task Force in a targeting effort against Jasmine Clark.
The CI met Task Force officers and was issued a transmitter and confidential funds.
The CI was dropped off at Sevier Street by a Task Force officer. The CI was to make a 3.5 gram purchase (an eight-ball) of crack cocaine from Ms. Clark. The Task Force officer obtained a transmitter from another agent and made his way to Sevier Street. Once back at Sevier Street, the agent approached the front door of the residence and came in contact with a black male and black female standing on the front porch. The agent asked for the CI and the two individuals responded as if they did not know the CI. The CI heard the agent and exited a Ford pick-up truck that was parked in the side yard and occupied by several other black males. The CI introduced the Agent to the black female standing on the porch. The black female asked the agent if he was the one who wanted the ball (eight-ball of crack cocaine).
The agent stated he was and asked her if she would take $160.00 for it. She stated that she would and handed the agent a small plastic bag containing suspected crack cocaine. After inspecting the suspected crack cocaine, the agent told the black female that it looked good. The agent then counted out and handed her $160.00 in prerecorded confidential funds to complete the purchase. The black female then pocketed the money as the CI and Task Force agent made their way to the agent's vehicle. The agent debriefed the CI concerning the identity of the black female from whom the crack cocaine was purchased. The CI stated her name was Jasmine Clark and she resided in Murfreesboro, Rutherford County, Tennessee. The CI further reported that Ms. Clark sold crack cocaine in: Murfreesboro, Rutherford County, Tennessee; Shelbyville, Bedford County, Tennessee; and Tullahoma, Coffee County, Tennessee.
On October 12, 2001, agents working with the 17th Judicial District Drug and Violent Crime Task Force received a telephone call from a Confidential Informant (CI) in Shelbyville, Tennessee. During this phone call, the CI informed agents that he/she had contact with several individuals, two of whom were Jason Underwood and Jasmine Clark. They were interested in selling an eight-ball to the CI for the sum of $160.00. The agent informed the CI that the two of them would target the individuals on a one-by-one basis. The CI agreed to assist in the targeting effort.
A transmitter was issued to the Task Force agent and $160.00 in prerecorded confidential funds were readied. The deal was delayed for a brief time period due to the Task Force agent being involved in a traffic accident on his way to meet the CI. The CI contacted Jasmine Clark to set another meeting time. Once the traffic accident investigation was complete, the Task Force agent and the CI went to look for Jason Underwood and Jasmine Clark. The CI told the agent that Jason Underwood was located in a residence on Bird Street in Shelbyville, Tennessee. After arriving at the residence, the CI approached the front of the residence where he/she made contact with several individuals. The CI returned to the vehicle and informed the agent that Mr. Underwood could possibly be in his vehicle on Madison Street in Shelbyville.
After unsuccessfully locating [sic] Mr. Underwood on Madison Street, the agent and CI drove back to the residence on Bird Street. Again, the CI approached the front of the residence where he/she made contact with several individuals on the front porch. The CI returned to the agent's vehicle and informed the agent that Clark was now at the residence and would be willing to sell $100.00 worth of crack cocaine. The Task Force agent and the CI approached a window located to the right of the front porch. The agent asked Ms. Clark for $100.00 worth of crack cocaine. Ms. Clark showed the agent a small plastic bag containing several pieces of rock like substance. The agent handed Ms. Clark the $100.00 in prerecorded confidential funds to complete the purchase of the suspected crack cocaine. [PSR, at 3-4, ¶s 7-11].
Clark raises three claims in her § 2255 motion. First Clark claims her guilty plea was not voluntary and knowing because she did not understand the consequences of her plea and she claims "I wanted to take my case to trial but my lawyer told me the government had a 98% chance of winning, so it frightened me that I would get 30 years" [Court File No. 1, at 4]. In addition, she claims she was advised she would not ...