United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
CATHERINE D. PERRY, District Judge.
Petitioner Dwayne Calais filed this motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. Calais was convicted of conspiracy to possess and distribute cocaine in violation of 21 U.S.C. § 841(a)(1) and sentenced to 188 months imprisonment. No. 4:09CR00192 CDP. He filed a direct appeal in the United States Court of Appeals for the Eighth Circuit and his conviction was affirmed. United States v. Calais, 428 Fed.Appx. 661 (2011) (per curiam unreported opinion). Because the grounds for relief Calais raises are without merit, I will deny his § 2255 motion to vacate, set aside, or correct sentence.
In March of 2009, Dwayne Calais was indicted for conspiracy to distribute and possess with intent to distribute more than five kilograms of cocaine and 50 grams of cocaine base in violation of 21 U.S.C. § 846 (Count I) and possession with intent to distribute more than 500 grams of cocaine in violation of § 841(a)(1) (Count II). Robert Taaffe Jr. represented Calais in the pretrial stages, but withdrew before the trial began so he could be a witness for Calais. Bradford Kessler and Molly Frances took over Calais' representation and the first trial began on April 12, 2010. Calais testified at the first trial and denied any involvement in cocaine trafficking. The jury deliberated for a day and a half after the three-day trial. The jury ultimately returned a not guilty verdict on the possession charge in Count II, but was unable to reach a verdict on the conspiracy charge in Count I. The not guilty verdict on Count II was accepted and a mistrial was declared as to Count I.
Calais was retried on Count I in a second trial that began on June 7, 2010. Kessler and Frances again represented him. Before the second trial, the government learned that in February of 2010 - while Calais was on bond in this case - a search warrant had been executed at his residence in Louisiana. Law enforcement officers seized four ounces of cocaine and almost $15, 000 from Calais' bedroom. Calais did not testify at the second trial. The jury returned a verdict of guilty on Count I, finding that Calais had conspired to distribute and to possess with intent to distribute more than five kilograms of cocaine.
Before sentencing, Kessler and Frances withdrew as Calais' attorneys. Attorney Michael Jones represented Calais at sentencing and on appeal. The presentence report concluded that Calais was responsible for at least 15 kilograms of cocaine and calculated the base offense level as 34 under U.S.S.G. § 2D1.1(c)(4). In addition, the PSR assessed a two-level enhancement for possessing a dangerous weapon under U.S.S.G. § 2D1.1(b)(1). Calais also received a two-level enhancement for obstruction of justice under § 3C1.1 because he testified falsely at his first trial. Calais objected to all three of these determinations. At sentencing, the government conceded the quantity objection, and so I ruled that Calais was responsible for at least five but less than 15 kilograms of cocaine, so the base offense level was 32 under § 2D1.1(c)(5). I overruled the other two objections and determined the total offense level to be 36. Calais had no prior adult convictions, so his advisory guidelines range was 188 to 235 months. I sentenced Calais to 188 months' imprisonment.
Calais appealed his conviction and sentence to the United States Court of Appeals for the Eighth Circuit. After filing the notice of appeal, his counsel filed a statement that he believed there were no non-frivolous grounds for appeal and he therefore sought to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967). In the Anders brief, attorney Jones raised the following issues: (1) the trial court improperly admitted Fed.R.Evid. 404(b) evidence, (2) the court erred in denying a mistrial after an officer involved in a traffic stop testified that Calais had refused to talk to him, and (3) the court erred in imposing sentencing enhancements for obstruction of justice and firearm possession. Calais filed a pro se supplemental brief challenging the obstruction enhancement and denial of a downward variance, and asserting that retrying him on Count I after the hung jury violated the double jeopardy clause.
The Court of Appeals affirmed Calais' conviction, finding that there was no abuse of discretion in the admission of Rule 404(b) evidence or in the denial of a mistrial. The Court also rejected all of the sentencing arguments and held that the double jeopardy claim was without merit. The court reviewed the record independently under Penson v. Ohio, 488 U.S. 75 (1988), and concluded that there were no non-frivolous grounds for appeal. It therefore granted Jones leave to withdraw and affirmed the judgment. Calais filed a petition for certiorari, which was denied. United States v. Calais, 428 Fed.Appx. 661 (8th Cir. 2011) (per curiam unpublished opinion), cert. denied 132 S.Ct. 1051 (2012).
II. Grounds for Relief
Calais raises four claims that his trial counsel were ineffective and two claims that his appellate counsel was ineffective:
(1) Ineffective assistance of trial counsel for failing to argue that the second trial was barred by double jeopardy;
(2) Ineffective assistance of trial counsel for failing to correctly advise him of the potential range of punishment and the possibility of entering an open guilty plea;
(3) Ineffective assistance of trial counsel for failing to object to the jury instructions' inclusion of potential lesser drug quantities;
(4) Ineffective assistance at sentencing for counsel's failure to cite to appropriate case law in his ...