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Cook v. United States

United States District Court, W.D. Tennessee, Western Division

March 31, 2017

STEPHEN COOK, Petitioner,



         Before the Court are two motions. On February 3, 2014, Petitioner Stephen Cook filed a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. (ECF No. 1 (“First § 2255 Mot.”); see also Mem. of Law in Supp. of Pet'r's § 2255 Mot., ECF No. 1-1 (“Mem. ISO First § 2255 Mot.”).) Respondent United States of America (the “Government”) filed a response to the First § 2255 Motion on July 29, 2014. (Resp. to Pet'r's Mot. to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255, ECF No. 11 (“Resp. to First § 2255 Mot.”).) Cook has not filed a reply in support of the First § 2255 Motion, and the deadline for requesting leave to do so has passed. L.R. 7.2(c).

         On February 26, 2016, Cook filed another document titled “Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody.” (ECF No. 13 (“Second § 2255 Mot.”); see also Mot. Pursuant to Sec. 2255 to Vacate[, ] Set Aside or Correct Sentence, ECF No. 13 (“Mem. ISO Second § 2255 Mot.”).[1]) The Government has not filed a response to the Second § 2255 Motion.

         For the following reasons, the § 2255 Motions are DENIED.

         I. BACKGROUND

         A. Case No. 11-20006

         On January 11, 2011, a federal grand jury returned a two-count indictment against thirteen defendants, including Cook. (Indictment in 11-20006, [2] ECF No. 3.) Both counts named Cook. (Id. at 1, 3.) Cook was charged with (1) one count of conspiring to possess, with the intent to distribute, at least 1, 000 kilograms of a mixture and substance containing marijuana, in violation of 21 U.S.C. § 846 (“Count 1”); and (2) one count of conspiring to possess, with the intent to distribute, 500 grams or more of a mixture and substance containing methamphetamine, in violation of 21 U.S.C. § 846 (“Count 2”). (Id. at 1-3.) On May 18, 2011, a federal grand jury returned a First Superseding Indictment. (ECF No. 175 in 11-20006.) The superseding indictment removed one defendant and added four others, but did not change the substantive allegations against Cook. (ECF No. 175 in 11-20006.)

         On January 13, 2012, Cook and the Government filed in open court a previously agreed-upon Plea Agreement. (ECF No. 397 in 11-20006 (“Plea Agreement”); Minutes, ECF No. 395 in 11-20006.) In the Plea Agreement, Cook agreed to plead guilty to Count 1 of the First Superseding Indictment. (Plea Agreement ¶ 1.) The Government agreed that, at sentencing, it would move for dismissal of any remaining counts of the indictment. (Id. ¶ 2.)

         Paragraph 4 of the Plea Agreement addresses the possibility that Cook will receive a sentencing reduction for acceptance of responsibility:

[Cook] acknowledges that the Government will recommend that [he] receive the full reduction for acceptance of responsibility under U.S. Sentencing Guidelines § 3E1.1, providing [Cook] commits no new criminal offenses and continues to demonstrate an affirmative acceptance of responsibility, including acknowledging guilt in open court to the facts as set out in the indictment. However, [Cook] understands that whether or not acceptance of responsibility is granted is a matter to be determined by the district court, and failure of the district court to grant acceptance of responsibility is not a basis for the defendant to withdraw his guilty plea or to appeal his sentence.

         Paragraph 7 of the Plea Agreement contains a waiver of Cook's right to appeal his conviction or sentence and a waiver of certain collateral attacks under § 2255:

[Cook] acknowledges that he has been advised and does fully understand that if he proceeded to trial and had been convicted, that he would have had the right to appeal the conviction. He understands that by pleading guilty, he gives up the right to appeal the conviction. Based on concessions made in this plea agreement by the United States, [Cook] also hereby waives his rights to appeal his sentence, unless the sentence exceeds the maximum permitted by statute or is the result of an upward departure from the guideline range that the court establishes at sentencing. In this regard, it is also understood that [Cook] waives his right to challenge the manner in which the sentence was determined, and (in any case in which the term of imprisonment and fine are within the maximums provided by statute) his attorney's alleged failure or refusal to file a notice of appeal, in any collateral attack or future challenge, including but not limited to a motion brought under [28 U.S.C. § 2255].

         On January 31, 2012, the Court entered an Order on Change of Plea stating that “[p]lea colloquy was held and the Court accepted [Cook's] plea.” (ECF No. 399 in 11-20006.)

         Before Cook's sentencing hearing, the U.S. Probation Office prepared a Presentence Investigation Report. (Presentence Investigation Report in 11-20006-1 (“PSR”) (on file with Court).) The PSR calculated Cook's guidelines-sentencing range pursuant to the 2011 edition of the U.S. Sentencing Commission Guidelines Manual (“U.S.S.G.”). (Id. ¶ 26.)

         Cook's base offense level was 36. (Id. ¶ 27 (citing U.S.S.G. § 2D1.1).) That was based on a drug quantity of 6, 622.56 kilograms of marijuana, 30 kilograms of cocaine, and 2.47 kilograms of methamphetamine. (Id.) The offense level was adjusted upward by four points based on Cook's being “an organizer or leader of a criminal activity that involved five or more participants.” (Id. ¶ 30 (citing U.S.S.G. § 3B1.1(a).) That produced an adjusted offense level of 40. (Id. ¶ 32.) The PSR incorporated a three-point adjustment for acceptance of responsibility. (Id. ¶ 33 (citing U.S.S.G. § 3E1.1). The result was a total offense level of 37. (Id. ¶ 36.)

         After reviewing Cook's criminal history, the PSR stated that he had zero criminal-history points, leading to a criminal-history category of I. (Id. ¶ 40; see also id. ¶¶ 38-39 (listing prior adult convictions).)

         Cook's recommended guidelines-sentencing range, based on a total offense level of 37 and a criminal-history category of I, was 210 to 262 months. (Id. ¶ 81; see U.S.S.G. ch. 5 pt. A.) His statutory minimum sentence was 120 months. (PSR ¶ 80 (citing 21 U.S.C. § 846).)

         On October 15, 2012, Cook filed objections to the PSR.[3](Def.'s Objs. to the Presentence Investigation Report, ECF No. 669 in 11-20006.) Two are relevant here. First, Cook objected to numerous paragraphs in the PSR on the ground that there was no “factual basis for determining that he had any involvement in the transport of any cocaine or methamphetamine, ” as opposed to transport of marijuana. (Id. at 1.) Therefore, Cook contested the calculation of his base offense level. (Id. at 2.) Second, Cook objected to Paragraph 30 of the PSR “to the extent that it allege[d] that [Cook] was an organizer or leader” of the relevant operation. (Id.)

         A sentencing hearing took place on February 15, 2013. (Minute Entry, ECF No. 806 in 11-20006; see also Tr. of Sentencing, ECF No. 872 in 11-20006 (“Sentencing Tr.”).) As to the first objection, the parties and the Court agreed that Cook's offense level would not be based on any transport of methamphetamine. (Id. at 14-15; see also id. at 141.) They also agreed that Cook would be sentenced only based on 30 kilograms of cocaine.[4] (Id. at 14-15; see also id. at 143.) Those agreements did not reduce Cook's base offense level of 36. (Id. at 16.)

         The Court heard testimony addressing Cook's organizer/ leader objection. (Id. at 25-95.) Before hearing testimony, the Court stated:

Mr. Cook might succeed [with his objection] in which case his offense level would be reduced by four. If he fails and I conclude, I suppose, for the government or I conclude that he has frivolously denied relevant conduct, then he probably will have his offense level increased by three because I won't be inclined to find his acceptance of responsibility on the record.

(Id. at 24.)

         The Government presented testimony from George Stauffer, an agent with the Shelby County Sheriff's Department's DEA Task Force, and Ethel Foster, Cook's aunt and a codefendant in Cook's case. (Id. at 25-43 (Stauffer); id. at 44-59 (Foster).) Cook testified also. (Id. at 60-95.) Following this testimony, the Court held that, under the facts presented, Cook was an “organizer or leader” of the relevant criminal enterprise and that the § 3B1.1(a) four-level enhancement was appropriate. (See, e.g., id. at 110-11.)

         The Government objected to the PSR's three-point downward adjustment for acceptance of responsibility and to any acceptance-of-responsibility adjustment. (Id. at 111-12.) The Court decided that Cook had “frivolously denied . . . relevant conduct, ” and that, as a result, an acceptance-of-responsibility adjustment was inappropriate. (Id. at 114-15; see also id. at 141-42.) The resulting total offense level was 40. (Id. at 115.)

         The Government then stated that the Court should increase Cook's offense level by two levels under U.S.S.G. § 3C1.1, which addresses obstructing or impeding the administration of justice. (Id. at 117-18.) The Government argued that Cook had provided “materially false information to a judge” during his sentencing testimony, warranting the increased offense level. (Id. at 118.) After colloquy with the parties and review of the testimony, the Court agreed that the two-level enhancement was appropriate. (Id. at 126; see also id. at 142.)

         The resulting total offense level was 42. (Id. at 127.) Because Cook's criminal-history category was I, the resulting guidelines-sentencing range was 360 months to life imprisonment. (Id.) Cook was sentenced to 360 months' imprisonment. (Id. at 157-58; J. in Criminal Case 2, ECF No. 807.)

         B. Postconviction Proceedings

         On February 22, 2013, Cook filed a Notice of Appeal. (ECF No. 816.) On April 26, 2013, the Sixth Circuit received a letter from Cook stating that he “[had] not seen [his] lawyer since [Cook] got [his] judgment.” (Letter from Stephen Cook to U.S. Court of Appeals for the Sixth Circuit (Apr. 26, 2013), ECF No. 7 in 13-5264.) After that letter, there was no substantive activity in the Sixth Circuit until February 2014.

         On July 17, 2013, Cook's counsel filed a Motion to Withdraw as Counsel in Cook's criminal case. (ECF No. 849 in 11-20006.) On November 6, 2013, Cook filed in his criminal case a motion asking the Court, inter alia, to permit him to proceed in forma pauperis. (Mot. Requesting Permission to Proceed In Forma Pau-peris and Request for Trs., ECF No. 864 in 11-20006.) On February 4, 2014, the Court granted Cook's motion, understanding it as a request for permission to proceed in forma pauperis on appeal. (Order Granting Mot. for Leave to Proceed In Forma Pau-peris on Appeal, ECF No. 868 in 11-20006.)

         On February 3, 2014, Cook commenced this action by filing the First § 2255 Motion. The motion presents three grounds.[5]Ground 1 is ineffective assistance of counsel. (First § 2255 Mot. 5.) Cook's ineffective-assistance argument states that his prior counsel (a) “fail[ed] to file an appeal” (“Ground 1(a)”); (b) failed “to make sufficient arguments at sentencing” (“Ground 1(b)”); and (c) failed “to investigate the facts of the case be- fore recommending [that Cook] enter a plea of guilty” (“Ground 1(c)”). (Id.)

         Ground 2 is that Cook “was improperly enhanced at sentencing for conduct not [alleged] in ...

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