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Miles v. United States

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

September 8, 2016

CHEO D. MILES Movant,
v.
UNITED STATES OF AMERICA, Respondent. Crim. No. 09-00188-08-CR-W-FJG

          ORDER

          FERNANDO J. GAITAN, JR. United States District Judge.

         Currently pending before the Court is movant's motion pursuant to 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence (Doc. # 1).

         I. BACKGROUND

         On August 20, 2009, a superseding indictment was returned in the Western District of Missouri charging Miles with conspiracy to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. 841(a)(1), (b)(1)(A) and 846. On February 14, 2011, Miles proceeded to a jury trial and was found guilty. On February 17, 2011, defense counsel Chris Angles filed a motion for a judgement of acquittal based on the single count in which Miles was charged. Following trial, Miles requested new counsel and his appointed counsel moved to withdraw. The Court granted Miles request and Susan Hunt was appointed as counsel. Hunt filed objections to the PSR drug calculations, challenging the factual elements of the findings, contesting the two-level enhancement for possession of a dangerous weapon and seeking minimal participant reduction under §3B1.2(b). On October 6, 2011, Miles appeared for sentencing. Hunt again objected to the drug quantity found by the jury verdict and requested that the Court lower the quantity, notwithstanding the jury verdict. The Court denied that objection, but did sustain the objection to the two-level enhancement for a dangerous weapon and granted a two-level reduction for minimal participation. This resulted in a sentencing range of 140 to 175 months, but this was overridden by the statutory mandatory minimum of 240 months. Miles filed a direct appeal arguing that the district court failed to give a lesser included instruction for distribution of less than five kilograms of cocaine. The Eighth Circuit rejected this argument and affirmed his conviction and sentence. Miles has now filed the instant motion pursuant to 28 U.S.C. § 2255 asserting three claims of ineffective assistance of counsel: 1) counsel was ineffective for failing to request a lesser included offense instruction; 2) counsel was ineffective for failing to move for a judgment of acquittal and 3) counsel was ineffective for failing to object to the drug quantity determination by the district court.

         II. STANDARD

         28 U.S.C. § 2255 provides, in part:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

         The district court must hold an evidentiary hearing A[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.'' 28 U.S.C. § 2255. ''Accordingly, a claim may be dismissed without an evidentiary hearing if the claim is inadequate on its face or if the record affirmatively refutes the factual assertions upon which it is based.'' Shaw v. United States, 24 F.3d 1040, 1043 (8th Cir. 1994) (citing Larson v. United States, 905 F.2d 218, 220-21 (8th Cir. 1990), cert. denied, 507 U.S. 919, 113 S.Ct. 1278, 122 L.Ed.2d 672 (1993)).

         Our analysis of the ineffectiveness claims is governed by Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to succeed on an ineffectiveness claim, Miles must show “both deficient performance by counsel and prejudice.” Id. at 687-88. In Johnson v. U.S., 860 F.Supp.2d 663 (N.D.Iowa 2012), the Court stated:

To establish deficient performance, a person challenging a conviction must show that “counsel's representation fell below an objective standard of reasonableness.” [Strickland], 466 U.S. at 688, 104 S.Ct. 2052. . . . The challenger's burden is to show “that counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.” Id., at 687, 104 S.Ct. 2052. Harrington v. Richter, 562 U.S. 86, 104, 131 S.Ct. 770, 787, 178 L.Ed.2d 624 (2011); Premo v. Moore, 562 U.S. 115, 121-122, 131 S.Ct. 733, 739, 178 L.Ed.2d 649 (2011) (quoting Richter). Also, the court “ ‘must “judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct.” ' ” King [v. United States, 595 F.3d 844, ] 852-53 (quoting Ruff v. Armontrout, 77 F.3d 265, 268 (8th Cir.1996), in turn quoting Strickland, 466 U.S. at 690, 104 S.Ct. 2052). There are two substantial impediments to making the required showing of deficient performance. First, “ ‘[s]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.' ” United States v. Rice, 449 F.3d 887, 897 (8th Cir.2006) (quoting Strickland, 466 U.S. at 690, 104 S.Ct. 2052). Second, “[t]here is a ‘strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.' ” Id. (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052); Davis v. Norris, 423 F.3d 868, 877 (8th Cir.2005) (“To satisfy this prong [the movant] must overcome the strong presumption that his counsel's conduct fell within the wide range of reasonable professional assistance.”)

Id. at 741. In United States v. Orr, 636 F.3d 944 (8th Cir.) cert. denied, 132 S.Ct. 758 (2011), the Court stated, “strategic choices made after a thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after a less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” Id. at 952 (quoting Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052). However, as noted in Armstrong v. Kemna, 534 F.3d 857 (8th Cir. 2008), “[o]n the other hand, strategic choices resulting from lack of diligence in preparation and investigation [are] not protected by the presumption in favor of counsel.” Id. at 864-65 (internal citations and quotations omitted).

         III. DISCUSSION

         A. Ground 1 - Failing to Request a Lesser Included Offense Instruction

         Miles argues that Alejandro Corredor testified that he accepted delivery of one kilogram of cocaine and payment in the sum of $19, 000 as well as a payment in the amount of $17, 000. Miles argues that Corredor testified that in 2008, a kilogram of cocaine sold for between $22, 000 and $24, 000. Thus, adding the two payments together would only equal one kilogram of cocaine. Miles argues that if his counsel had requested that the jury be instructed on the lesser included offense of conspiracy to distribute less than five kilograms of cocaine, then the outcome of his trial would have been different.

         The Government argues that to demonstrate prejudice, Miles must show a reasonable probability that the district court would have given the instruction and that the jury would have acquitted him of the greater offense and convicted him of the lesser offense. The Government argues that the district court found that there was ample evidence to support the jury's verdict that Miles was responsible for distribution of five kilograms or more of cocaine.

THE COURT: Well, I'm going to overrule the objection. First of all, I have a great deal of faith in juries, and I believe that they were properly instructed. And to find him guilty, they had to find that he was involved voluntarily in a conspiracy that involved more than five kilograms. And at a minimum we've got rock solid evidence, I believe, that you've got at least four kilos, giving every benefit of the doubt to Mr. Miles, that there are a minimum of four occasions. Now, maybe one of those four involves the two telephone calls, so I've got to be careful not to double count. But he's not just responsible for what he, in fact, himself can be shown to have given under these facts; and given that amount of involvement, I have no doubt that he was fully aware that there was substantially more than four kilograms that was involved in this conspiracy.
And so I am, I do find that the jury's verdict is well supported by the evidence, and so I will go with that. And so I will overrule it.

(Doc. # 684, Oct. 6, 2011 Sentencing Transcript, p. 9). The Government argues that in light of the jury's verdict, Miles cannot demonstrate a reasonable probability that he would have been acquitted of the greater charge. Additionally, the Government argues that the record demonstrates that the Court would not have given the instruction, even if counsel had requested it.

         In U.S. v. Ziesman, 409 F.3d 941 (8th Cir.) cert. denied, 546 U.S. 990, 126 S.Ct. 579, 163 L.Ed.2d 483 (2005) the Court stated:

[i]n the Eighth Circuit, a defendant is entitled to a lesser-included offense instruction when: (1) a proper request is made; (2) the elements of the lesser offense are identical to part of the elements of the greater offense; (3) there is some evidence which would justify conviction of a lesser offense; (4) the proof on the element or elements differentiating the two crimes is sufficiently in dispute so that the jury may consistently find the defendant innocent of the greater and guilty of the lesser included offense; and (5) there is mutuality, i.e., a charge may be demanded by either the prosecution or defense.

Id. at 949.

         In this case, Corredor testified that he knew Miles through Adrian Dunn. Corredor testified that Adrian Dunn sold approximately eight kilos a month for him and that Miles was a childhood friend of Dunn's who was always with Dunn and lived in a house which Dunn owned.

Q. And how do you know Cheo ...

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