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Patterson v. United States

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

November 18, 2016

UNITED STATES OF AMERICA, Respondent. Criminal No. 10-04052-04-CR-C-FJG


          Fernando J. Gaitan, Jr., United States District Judge

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

         I. BACKGROUND

         On June 23, 2011, a second superseding indictment was returned in the Western District of Missouri charging Patterson and three co-defendants with conspiracy to distribute and possess with intent to distribute 1, 000 kilograms or more of a mixture and substance containing a detectable amount of marijuana and five kilograms or more of a mixture and substance containing cocaine. On March 18, 2013, under a written plea agreement, Patterson pled guilty to conspiracy to distribute and possess with intent to distribute 500 grams or more of a mixture and substance containing a detectable amount of cocaine, a lesser included offense under Count One of the second superseding indictment. A presentence investigation report was prepared which calculated a base offense level of 32, a total offense level of 29 and a criminal history category of III, resulting in an advisory Sentencing Guidelines range of 108 to 135 months' imprisonment.

         Patterson's counsel objected to the base offense level, arguing that is should be 26, to correspond to the 500 grams or more that he had admitted to at the time of the plea. He also objected to the PSR's failure to recommend a reduction for a mitigating role in the offense and also to two criminal history points assessed for his commission of an offense while under another criminal justice sentence. At sentencing, the Court considered these objections, but sustained only the objection regarding criminal history. The Court then departed below the advisory Guidelines range and sentenced Patterson to 90 months' imprisonment. On September 5, 2013, the judgment and commitment were entered by the Court. Patterson did not file a notice of appeal from the final judgment and filed the instant 28 U.S.C. §2255 on August 14, 2014. In his motion, Patterson asserts four claims of ineffective assistance: 1) Counsel failed to properly advise Patterson of the law relevant to whether to plead guilty and coerced Patterson to plead guilty with unfounded and unreliable assertions; 2) Counsel failed to broaden the scope of the investigation and investigate other lines of defense; 3) Counsel failed to advise him that he could put the question of drug quantity before a jury; 4) Counsel did not inform defendant of the elements of a conspiracy and the evidence did not show that defendant was part of a conspiracy.

         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 “[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, Patterson 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 (quoting Kenley v. Armontrout, 937 F.2d 1298, 1304 (8th Cir.) cert. denied, 502 U.S. 964 (1991)).


         A. Ground One - Counsel Failed to Advise Patterson of the Law Relevant to the Decision to Plead Guilty Which Resulted in a Coerced Plea.

         Patterson states that his attorney coerced him into pleading guilty with unfounded and unreliable assertions that a guilty plea was his only viable option. Patterson states that his attorney repeatedly told him “[t]hese people were moving huge amounts of drugs . . .and because you entered into a conspiracy with them, everything they did and were responsible for is directly attributable to you.” (Doc. No. 2, p. 5). Patterson states that “this is enough to scare even an innocent man into potentially pleading guilty. And although Defendant is not, in fact innocent, he did likewise find himself intimidated enough from his lawyer's assertions to plea out to more serious conduct than he had been responsible for.” (Doc. # 2, pp 5-6). Patterson argues that a defendant in a conspiracy is responsible for the quantity of drugs involved in the conspiracy only when the quantity is reasonably foreseeable and a defendant's role in the conspiracy is relevant to determine what was foreseeable. Patterson states that “it is only where a defendant holds ‘a position within a conspiracy with adequate exposure to information about the conspiracy, ' that the potential of the conspiracy is more foreseeable to him that it would be to a ‘[low-level buyer].'” (Doc. 2, p. 6). Patterson states that this case law contrasts with what his attorney represented to him.

         The Government argues in opposition that these alleged deficiencies by counsel did not constitute ineffective assistance of counsel. The Government notes that Patterson was permitted to plead guilty to a lesser-included offense, counsel objected to the base offense level recommended in the PSR and also argued for a mitigating role. The Government notes that “[c]learly his attorney took every conceivable action to support Patterson's position that he was not responsible for the entirety of the conspiracy, and any failure to engage Patterson more fully on the legal issues did not alter the ultimate outcome of his case.” (Government's Suggestions in Opposition, p. 6).

         The Court does not find that counsel's statements constituted ineffective assistance because counsel correctly advised Patterson of the law related to conspiracies. In U.S. v. Stauffacher, No. 13-1474(RHK), 2013 WL 5655808 (D.Minn. Oct.15, 2013), the Court stated:

[T]he Eighth Circuit Court of Appeals has plainly stated that [a] defendant convicted of conspiracy is properly held accountable for all reasonably foreseeable acts and omissions of any co-conspirator taken in furtherance of the conspiracy. . . .Defendant seems to believe that he should be held accountable only for specific events in which he actively participated. But the case law does not support that notion. The Eighth Circuit had held that in conspiracy cases such as this one, a defendant can be sentenced for all transactions that the defendant reasonably could have been aware of.

Id. at *3 (internal citations and quotations omitted). In U.S. v. Atkins, 250 F.3d 1203, 1213 (8th Cir. 2001), the Court stated, “[T]he testimony of co-conspirators is sufficient evidence on which the court may base the quantity of drugs used for sentencing.” In this case, in the factual basis for the plea, one of Patterson's co-conspirators identified him as his primary cocaine customer, indicating that he met him in 2007 or 2008 and within 1-2 months, Patterson was buying approximately 9 ounces of cocaine approximately 3 times a month. In the Pre- Sentence Investigation Report for Jason Holloway, one of the co-conspirators, the report indicates that the investigation revealed that Holloway was obtaining one kilogram of cocaine and between 50 and 100 pounds of marijuana each month from Jaime Cerros-Perez, over a two-year period. This would result in 1, 200 but not more than 2, 400 pounds of marijuana and 24 kilograms of cocaine. Jaime Cerros-Perez was identified as the primary source of cocaine and marijuana for the conspiracy. In his Pre-Sentence Investigation Report, it was estimated that Cerros-Perez was responsible for supplying a combined converted total of 12, 382.01 pounds of marijuana equivalent.[1] The fourth co-conspirator was Damon Reed Lower. His Pre-Sentence Investigation report indicated that he was also involved in the conspiracy with Holloway and the others who were supplying and distributing multi-pound quantities of methamphetamine and marijuana throughout the Fulton/Callaway County, Missouri area. The report indicates that Jamie Cerros-Perez was Holloway's supplier. Damon Lower was found to have transported, stored and purchased drugs from Holloway to sell to his own customers. Lower's Pre-Sentence Report indicates that the quantities involved in the conspiracy exceeded 1, 000 kilograms of marijuana and 5 kilograms or more of cocaine. Thus, from a cursory review of the Pre-Sentence Investigation reports, it is clear that large quantities of marijuana and cocaine were being transported, bought and sold by the members of this conspiracy. It is also clear that based on Holloway's proffer, Patterson was intimately involved in this conspiracy, purchasing 9 ounces of cocaine, approximately three times a month, for a period of up to two years. Thus, counsel's statement to Patterson was not incorrect, as it was reasonably foreseeable that Patterson was aware of the large quantities of drugs involved in the conspiracy. Accordingly, the Court finds that Patterson did not receive ineffective assistance of counsel.

         B. Ground Two - Failure To Broaden Scope of Investigation Was Unreasonable

         Patterson asserts in his second claim for relief that his attorney should have conducted an independent interview with Holloway, “he would have been able to ascertain the level of credibility (with more adequate recommendations as to potential trial strategy) and use these depositions for possible impeachment since Defendant's actual drug quantity amounted to substantially less than the approximate 27 ounces per month as asserted.” (Doc. # 2, p. 7). The Government argues in response that Patterson does not explain what information could have been gathered from an interview with Holloway which would have possibly altered the outcome of the case and thus Patterson cannot demonstrate prejudice. In reply, Patterson argues that his pre-trial defense investigation rested solely on information and accounts gathered by federal agents.

         In the Suggestions in Support of his Motion, Patterson admits that he was not in fact innocent of the crimes with which he was charged. The Court is unsure what information Patterson hoped his counsel could potentially elicit from Holloway. Patterson seems to be arguing that if his counsel had interviewed Holloway, he could somehow use the information gained through the interview to argue that Patterson was less culpable than others who were involved in the conspiracy. However, as explained above, because the amount of drugs involved in the conspiracy were reasonably foreseeable to Patterson, he was responsible for that quantity as well. Additionally, without any assertions as to what Holloway would have stated in an interview, it is only speculation as to what he would have said. In United States v. Vazquez-Garcia, 211 Fed.Appx. 544 (8th Cir.), cert. denied, 552 U.S. 939 (2007), the Court stated:

“We have stated that failing to interview witnesses or discover mitigating evidence may be a basis for finding counsel ineffective within the meaning of the Sixth Amendment right to counsel.” Kramer v. Kemna, 21 F.3d 305, 309 (8th Cir.1994). This does not automatically lead to a conclusion that counsel was ineffective however, because even if we assume that counsel's failure to interview Morales did not meet an objective standard of conduct, Vazquez still needs to “make a substantial showing that, but for counsel's failure to interview ... the witness[ ] in question, there is a reasonable probability that the result of his trial would have been different.” Id. Vazquez has not made the substantial showing required of him in this case. He has not provided any independent evidence to the court as to what Morales would have allegedly said had he been interviewed or called to testify. See Sanders v. Trickey, 875 F.2d 205, 210 (8th Cir.) (holding that appellant who filed a § 2255 motion but produced no affidavit from the witness in question or any other independent support for his claim failed to show prejudice because he offered only speculation that he was prejudiced by his counsel's failure to interview the witness, which was not enough to undermine confidence in the outcome of the trial, as required by Strickland), cert. denied, 493 U.S. 898, 110 S.Ct. 252, 107 L.Ed.2d 201 (1989). Vazquez has provided no affidavits or any other information supporting his claims to the court. The only information about what Morales's potential testimony would have been is speculation on the part of Vazquez. Recognizing the deferential standard when reviewing the conduct of counsel, we decline to find prejudice in this situation when there is no evidence other than speculation to support the finding.

Id. at 546. Similarly, in the instant case, the Court also finds no prejudice from counsel's failure to interview Holloway, because Patterson has offered nothing more than his speculation as to what he would have testified to. Accordingly, the Court finds that counsel ...

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