United States District Court, E.D. Tennessee, Knoxville
THOMAS A. VARLAN, Chief District Judge.
This is a pro se motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 filed by petitioner Shawn Wright ("petitioner"). Petitioner's motion is based on two grounds: (1) his counsel was ineffective on two occasions; and (2) the Supreme Court's holding in Dorsey v. United States, 132 S.Ct. 2321 (2012), requires modification of his sentence to the new statutory minimum. In response to the § 2255 motion, the United States (1) denies that petitioner has established any constitutional ineffective assistance of counsel; and (2) does not oppose petitioner's request for modification of his sentence in light of Dorsey, subject to consideration of the 18 U.S.C. § 3553(a) factors. For the following reasons, petitioner's motion for § 2255 relief will be DENIED IN PART and GRANTED IN PART. Petitioner's motion for § 2255 relief based on ineffective assistance of counsel will be DENIED. Petitioner's motion for § 2255 relief based upon the holding in Dorsey will be GRANTED, his sentence of 240 months' imprisonment will be VACATED, and a new sentence of 120 months' imprisonment will be IMPOSED.
I. Factual Background
On November 1, 2010, the Court accepted petitioner's plea of guilty to two charges that he conspired to distribute and possessed with intent to distribute fifty or more grams of crack cocaine [Doc. 34 p. 2-4; Doc. 75 p. 20]. The signed plea agreement sets forth the offense behavior, which occurred between July 2009 and February 2010, and states that the parties agree that petitioner "shall be held responsible for at least 500 grams but less than 1.5 kilograms of cocaine base" [Doc. 34 p. 2-4]. Petitioner's signed plea agreement also provides that, due to petitioner's prior drug convictions, the mandatory punishment for each charge is life imprisonment and that "No promises have been made by any representative of the United States to the defendant as to what the sentence will be in this case" [Id. at 1, 5].
Before the Court accepted petitioner's guilty plea, petitioner confirmed under oath that his lawyer had explained the terms of the plea agreement to him, that he had ample opportunity to review the plea agreement and discuss it with his lawyer before he signed it, and that he was satisfied with the advice his lawyer had given him in the matter [Doc. 75 p. 5-6]. Petitioner also agreed that no one had promised or suggested that he would receive a lighter sentence or leniency if he pleaded guilty [Id. at 8]. The Court informed petitioner that the government had not made any agreement to recommend a particular sentence and that the Court would determine his sentence [Id. at 18-19]. The Court also set forth the relevant charges and the applicable statutory penalties, including the potential penalty of mandatory life in prison without release, and petitioner expressed his understanding of the charges and potential penalties [Id. at 16-20]. After affirming that petitioner was pleading guilty because he was in fact guilty and that petitioner understood the nature and elements of the offenses to which he was entering a guilty plea, as well as the potential minimum and maximum penalties for those offenses, the Court accepted petitioner's plea of guilty [Id. at 17, 20-21].
In calculating the applicable Guidelines range for petitioner, the probation officer found that the drug quantity to which petitioner had stipulated yielded a base offense level of 32 [Doc. 96 p. 4]. After a three-level reduction for acceptance of responsibility, the total offense level was 29, and, given petitioner's criminal history category of III, the resulting Guidelines range was 108-135 months' imprisonment [Id.]. Due to petitioner's prior felony drug convictions, however, the restricted guidelines range was life [Id.].
The United States filed a motion for downward departure based on petitioner's substantial assistance in which it also agreed to withdraw one of the prior drug convictions listed in the § 851 notice, thereby reducing the applicable mandatory minimum sentence from life to 240 months' imprisonment [Doc. 66; Doc. 74 p. 7-11]. On May 19, 2011, the Court granted the motion and, after careful consideration of all relevant factors, including those set forth in 18 U.S.C. § 3553, the Court sentenced petitioner to the mandatory minimum term of imprisonment of 240 months in effect at that time [Doc. 74 p. 19-32].
II. Standard of Review
The Court must vacate, set aside, or correct petitioner's sentence if it finds that "the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, ...." 28 U.S.C. § 2255. To obtain relief under § 2255 because of constitutional error, the error must be one of "constitutional magnitude which had a substantial and injurious effect or influence on the proceedings." Watson v. United States, 165 F.3d 486, 488 (6th Cir. 1999) (citing Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)). To obtain relief for a non-constitutional error, petitioner must show a fundamental defect that resulted in a complete miscarriage of justice or an egregious error amounting to violation of his right to due process. Id. In order to obtain collateral relief under § 2255, a petitioner "must clear a significantly higher hurdle than would exist on direct appeal." United States v. Frady, 456 U.S. 152, 166 (1982).
Petitioner alleges two instances of ineffective assistance of counsel. Petitioner also requests modification of his sentence to the new mandatory minimum based upon the Supreme Court's holding in Dorsey, which applied the Fair Sentencing Act of 2010 ("FSA") retroactively to pre-FSA offenders sentenced after the FSA effective date.
A. Ineffective Assistance of Counsel
Petitioner alleges that his counsel was ineffective for (1) failing to sufficiently inform him of the true nature of the plea agreement by not advising him of the amount of drugs stipulated to therein; and (2) failing to raise a breach of agreement claim at sentencing [Doc. 74 p. 14-15; Doc. 84 p. 5, 6]. The Sixth Amendment provides, in pertinent part, that "kin all criminal prosecutions, the accused shall enjoy the right... to have the Assistance of Counsel for his defense." U.S. Const. amend. VI. A defendant has a Sixth Amendment right not just to counsel, but to "reasonably effective assistance" of counsel. Strickland v. Washington, 466 U.S. 668, 687 (1984). In Strickland, the Supreme Court set forth a two-pronged test for evaluating claims of ineffective assistance of counsel:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, ...