ELIZABETH E. FOOTE, Magistrate Judge.
Before the Court is a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 [Record Documents 498, 516, 517, & 543],
On July 29, 2011, a grand jury in the Western District of Louisiana returned a fourteen-count indictment charging eleven defendants, including Barnes, with various drug offenses. Record Document 14. Barnes was named in Counts One (conspiracy to possess with intent to distribute methamphetamine) and Fourteen (possession with intent to distribute methamphetamine). Attorney Paul Carmouche ("Mr. Carmouche") was appointed to represent Barnes. Record Documents 6 & 11.
I. Guilty Plea.
On December 5, 2011, with the advice of Mr. Carmouche and pursuant to a plea agreement, Barnes pled guilty to Count Fourteen. Record Documents 198 & 199. During the guilty plea colloquy, the Court engaged in the following exchange with Barnes:
Record Document 378, pp. 4-5.
Hank Haynes, a Louisiana State Trooper assigned to the DEA Task Force ("Trooper Haynes"), testified to the factual basis necessary to support the guilty plea. He explained that Barnes's co-defendant, Lauralyn Thompson ("Thompson"), began cooperating with authorities in this drug investigation.
With respect to the penalty he was facing, Barnes knew that Count Fourteen carried a mandatory minimum sentence of ten years. Record Document 199, p. 2; Record Document 378, pp. 19-20. Further, Mr. Carmouche stated at the guilty plea hearing, "Your Honor, under Section D of the plea agreement, we discussed the fact that this is a 10 to life sentence. And Mr. Barnes and I — and of course that part, we discussed that. You know, there is always a chance, always, that he could have a chance to get the safety valve and that — and hopefully he wouldn't have to do at least that minimum 10 years in jail. But that all comes after the presentence investigation and the entirety of the report." Record Document 378, p. 19. At the conclusion of the hearing, the Court accepted Barnes's guilty plea to County Fourteen.
The United States Probation Office prepared a Presentence Investigation Report ("PSR") to which Mr. Carmouche made a number of objections. At the sentencing hearing on May 3, 2012, he objected to the PSR assessing Barnes with five criminal history points, noting that two of those points resulted from misdemeanors and should not be counted, while another point stemmed from conduct to which Barnes allegedly pled guilty only to be released from jail. Barnes's additional two points resulted from the fact that he was on probation when he committed the instant methamphetamine offense. The Court overruled the defense's objection to the points allocated for the misdemeanor convictions, and also explained that it would not allow the defense to collaterally attack Barnes's felony conviction. Thus, the Court found that Barnes had five criminal history points, and it overruled the defense's objection to the criminal history score.
The criminal history score rendered Barnes ineligible for the safety valve, although Mr. Carmouche nevertheless urged the Court to apply the safety valve. In opposition to the defense's argument, the Government stated,
At the sentencing hearing, Trooper Haynes explained that agents, working with cooperating co-defendant Thompson, ordered the methamphetamine that Barnes ultimately obtained from Dallas: "we ordered it from Mr. Pimpleton. We had Lauralyn Thompson. . . working under our direction at that time." Record Document 379, p. 23. Trooper Haynes established through his testimony that two different packages of methamphetamine were secured from Pimpleton. One package, which was hidden behind an ice machine at Boomtown Casino, stemmed from Thompson's order, while the other package, which was hidden in Pimpleton's rental vehicle, was intended to be delivered to Winnfield, Louisiana to sell to others.
The PSR held Barnes accountable for only 168.9 actual grams of methamphetamine.
In its calculation of the Guideline range, the Court found that Barnes began with a level 34, which corresponded to between 150 and 500 grams of actual methamphetamine. The offense level was reduced by four for Barnes's limited role in the offense, and reduced another three levels based on his acceptance of responsibility, resulting in a total offense level of 27. With a total offense level of 27 and a criminal history level III, Barnes's guideline range was 87-108 months. The Court imposed the mandatory minimum sentence of 120 months, but noted that that sentence did not reflect Barnes's overall minimal culpability in the overall conspiracy.
Barnes timely filed a notice of appeal. [Record Document 308]. Barnes argued on appeal that the Government breached the plea agreement by failing to file a U.S.S.G. § 5K1.1 motion for downward departure based on his substantial assistance.
Barnes's appeal also lodged the "novel claim" that the Attorney General's August 12, 2013 Memorandum, entitled "Department Policy on Charging Mandatory Minimum Sentences and Recidivist Enhancements in Certain Drug Cases," (the "August 12 Memorandum") entitled him to relief from his sentence.
IV. The Instant § 2255.
On December 16, 2014, Barnes timely filed the instant motion under 28 U.S.C. § 2255.
LAW & ANALYSIS
Under 28 U.S.C. § 2255, a prisoner may move to vacate, set aside, or correct a sentence imposed by a federal court when: (1) the sentence "was imposed in violation of the Constitution or laws of the United States[;]" (2) "the court was without jurisdiction to impose such sentence[;]" (3) "the sentence was in excess of the maximum authorized by law[;]" or (4) the sentence "is otherwise subject to collateral attack."
"Relief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice."
As to the first prong, in determining whether counsel's performance was deficient, courts "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance."
To establish the second prong of prejudice, the petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."
Where, as here, the Defendant has been convicted pursuant to a guilty plea, the analysis is slightly different. The only claims that survive a guilty plea are claims implicating the validity of the plea itself.
"For a plea to be knowing and voluntary, the defendant must be advised of and understand the consequences of the guilty plea."
I. Assistance of Counsel Before the District Court.
As previously mentioned, Barnes submits that Mr. Carmouche provided ineffective assistance of counsel by (1) advising him to enter into a plea agreement when he was not guilty of the charges against him; (2) failing to secure a "binding" plea agreement in which the Government would have agreed either not to apply the mandatory minimum to Barnes at sentencing, or it would have filed a substantial assistance motion under 18 U.S.C. § 3553(e), which would have authorized the Court to sentence Barnes without regard to the mandatory minimum; (3) advising him to enter into a plea agreement when Mr. Carmouche should have asserted the defense of entrapment; and (4) failing to review the presentence report with Barnes. These will be discussed in turn below.
Voluntariness of the Guilty Plea.
In the instant case, the Court must first address the voluntariness of Barnes's guilty plea, as that impacts the ineffective assistance of counsel claims he has raised in his § 2255 petition. First, the Court finds Barnes was aware of the length of imprisonment he was facing, as the mandatory minimum ten year sentence was precisely documented in the written plea agreement Barnes signed. Record Document 199, p. 2. Barnes also agreed to the following statement contained in his plea agreement:
Record Document 199, p. 5. In another document signed in connection with his guilty plea, Barnes agreed that he had discussed the charges against him with his attorney, he understood the nature of the charges, as well as the maximum possible penalties he faced.
Second, the discussion between the Court and Barnes at the hearing confirms that Barnes was aware that he was facing a statutory mandatory minimum sentence of ten years. At the guilty plea, the Court stated,
Record Document 378, p. 21. The Court also reviewed with Barnes the elements of the offense to which he was pleading and ensured that Barnes understood those elements and how they applied to the charges against him.
At another point during that same hearing, in Barnes's presence, Mr. Carmouche stated,
Thus, it is apparent that not only was Barnes advised of the mandatory ten year penalty he faced, he also knew that his attorney was hopeful that he would be safety valve eligible in order to avoid having to serve all ten years.
Under oath, Barnes told the Court that his plea was free and voluntary; that it was not threatened, forced, or coerced; that it was done with the advice of counsel; and that he was pleading guilty because he was, in fact, guilty. Record Document 378 at p. 17. "Although [a petitioner's] attestations to voluntariness are not an absolute bar to raising this claim, [a petitioner] face[s] a heavy burden in proving that [he is] entitled to relief because such testimony in open court carries a strong presumption of verity."
Counsel's Advice To Plead Despite Barnes's Alleged Innocence.
Notwithstanding the above conclusion that Barnes's plea was knowing and voluntary, the Court finds that Barnes has nevertheless failed to demonstrate that Mr. Carmouche was ineffective in advising him to plead guilty to Count Fourteen — possession with intent to distribute. Much of Barnes's § 2255 attacks the conspiracy charged in Count One, asserting that Barnes did not have an agreement with his co-defendants to distribute methamphetamine. But what those arguments overlook is the fact that Barnes did not plead guilty to Count One; thus, the conspiracy charge and the proof required to sustain it are immaterial to the § 2255 issues before the Court. Simply put, Barnes's belief that he is not guilty of the conspiracy charged in Count One because Thompson cooperated with the DEA and that his alleged innocence on Count One somehow automatically results in his innocence on Count Fourteen is legally unsubstantiated and meritless.
At no point has Barnes shown that there is a lack of evidentiary proof underlying Count Fourteen. To the contrary, he agreed with Trooper Haynes's testimony that, in exchange for money, he picked up a package of methamphetamine in Dallas and brought it to Shreveport on a Greyhound Bus. His § 2255 does not dispute those facts. Nor does he dispute that the quantity of methamphetamine was at least fifty grams, sufficient to trigger the statutory mandatory minimum. Therefore, the Court refuses to find that Mr. Carmouche erred in advising Barnes to plead guilty in light of this uncontroverted evidence of his guilt.
More Favorable Plea Agreement.
With respect to the contention that Mr. Carmouche failed to secure a more favorable plea agreement,
Barnes has also failed to establish that Mr. Carmouche was ineffective in failing to secure a plea agreement that would have required the Government to file a substantial assistance motion. As evidenced by the plea documents Barnes signed at his own plea hearing and pursuant to 18 U.S.C. § 3553(e), substantial assistance motions reflect "a defendant's substantial assistance in the investigation or prosecution of another person. . . ." 18 U.S.C. § 3553(e). The record in this matter confirms that Barnes was unable to render substantial assistance, not necessarily through any fault of his own, but rather because he was a drug courier and did not have much information to offer investigators. Barnes cannot establish that Mr. Carmouche was ineffective for failing to secure relief which is, in itself, contrary to law. Accordingly, Barnes cannot establish that Mr. Carmouche rendered deficient representation, and therefore he has failed to satisfy the first prong of
Even if Barnes could prove
The Entrapment Defense.
Barnes next contends that Mr. Carmouche was deficient in advising him to plead guilty instead of asserting an entrapment defense. "The critical determination in an entrapment defense is whether criminal intent originated with the defendant or with government agents."
Entrapment is an exculpating defense, placing the burden on the defense to prove it is actually entitled to an entrapment jury instruction. To do so, the defendant must present a prima facie case showing that the government's conduct created a substantial risk of entrapment.
"The question of entrapment is generally one for the jury. . . ."
Regardless, the Court finds that Barnes cannot satisfy a prima facie case of entrapment, as he cannot prove either one of the necessary elements. That is, he has not demonstrated his lack of predisposition to commit the drug offense, nor has he shown that the Government's involvement-which amounts to asking Thompson to order a half pound of methamphetamine-provided anything more than an opportunity to commit the offense. The Government had no involvement with or control over Pimpleton or Moody, the very persons who hired Barnes, directed his actions, and coordinated his travel plans. Pimpleton and Moody did not know that Thompson was, by that time, working with the DEA. The Government had no involvement or interaction with Barnes. It did not direct or control his actions, and there is absolutely no evidence that it induced Barnes into committing this crime. Therefore, the Government's acts simply provided Pimpleton, Moody, and Barnes with the opportunity to transport a half-pound of methamphetamine into the Shreveport, Louisiana area. "[A] defendant's ready and willing participation in government-solicited criminal activity, standing alone, is sufficient to prove predisposition."
Here, the record demonstrates that Barnes was not entrapped, and he has supplied no cogent or compelling reason to find otherwise. These same facts, viewed at the time of the guilty plea, would likely have led Mr. Carmouche to the same reasonable conclusion. Mr. Carmouche cannot be said to have performed deficiently for failing to pursue an entrapment defense at trial, when that defense was wholly unsupported by the record. Defense counsel does not perform deficiently by declining to pursue frivolous, futile, or non-meritorious motions or objections.
Again, even if Barnes had established deficient representation, he has not established prejudice from Mr. Carmouche's failure to pursue an entrapment defense. As previously stated, at this stage, Barnes has to show that there is a "reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial."
Review of the PSR.
Barnes's next claim is that Mr. Carmouche was constitutionally ineffective for failing to review the PSR with him prior to sentencing. Barnes contends that four factual paragraphs — paragraphs 15, 17, 19, and 20— of the PSR were inaccurate, and if he had reviewed the PSR with his attorney before sentencing, he could have identified the errors and had them corrected. The Court notes that it began the sentencing proceeding by asking, "Have defense counsel and the defendant had a chance to review the Presentence Report?" Record Document 379, p. 3. Mr. Carmouche responded, "Yes, Your Honor."
With respect to the errors contained in paragraphs 19 and 20, Mr. Carmouche did, in fact, alert the Court to those inaccuracies. The Court agreed that those paragraphs were inartfully worded and orally amended the PSR. The PSR filed into the record reflects those corrections.
Barnes asserts that paragraph 15 incorrectly reflects that he met with Thompson at an EZ Mart in Winnfield, Louisiana and sold Thompson 15.1 grams of methamphetamine. This is actually paragraph 16 of the PSR, not paragraph 15. The Court agrees that Barnes did not sell methamphetamine to Thompson at this time, as reflected in this paragraph. The final paragraph that Barnes asserts is incorrect is paragraph 17, which reflects the following:
Record Document 281, p. 5 (emphasis in original). Barnes has not identified what, specifically, is inaccurate in this paragraph. Aside from the date being January of 2012 rather than June of 2011, the substance of the paragraph matches the testimony of Trooper Haynes at both the guilty plea and sentencing hearings.
Assuming without deciding that Mr. Carmouche failed to review the PSR with Barnes prior to sentencing, Barnes's ineffective assistance claims nevertheless fail because he has not demonstrated prejudice. Barnes must show that there is a reasonable probability that, but for Mr. Carmouche's errors, the result of the proceeding would have been different. Here, Barnes has not identified any way in which his sentence would have been different had he reviewed the PSR before sentencing. Indeed, Mr. Carmouche himself moved to correct the inaccuracies in paragraphs 19 and 20. The date error in paragraph 17 had no impact upon the sentencing proceeding in any way. And finally, the drug sale reflected in paragraph 15 was not held against Barnes at sentencing. Accordingly, Barnes's claim that Mr. Carmouche was ineffective for failing to review the PSR with him is without merit.
Assistance of Counsel on Appeal.
Barnes's final two claims of ineffective assistance relate to his appellate counsel, Ms. Dougherty. First, Barnes asserts that Ms. Dougherty frivolously argued on appeal that the Government breached the plea agreement. Barnes concedes that this "breach of plea" argument was not supported by the record. However, he has not explained how or why Ms. Dougherty rendered constitutionally ineffective counsel by raising an issue that ultimately proved unsuccessful. Nor has he asserted any prejudice resulting therefrom. This claim is without merit.
Next, Barnes faults Ms. Dougherty for making a "last ditch attempt" at relief by submitting a petition for panel rehearing based upon the August 12 Memorandum and the August 29, 2013 Memorandum (the "August 29 Memorandum") issued by the Attorney General. Ms. Dougherty had, in fact, raised the August 12 Memorandum during the appeal; the Fifth Circuit concluded that the provisions of the Memorandum did not entitle Barnes to any relief. In the petition for rehearing, Ms. Dougherty raised the August 29 Memorandum, which had been released approximately two weeks before the panel issued its opinion affirming the district court. The August 29 Memorandum provides additional guidance for the August 12 Memorandum. In the petition for rehearing, Ms. Dougherty argued that the Memorandums did not preclude the retroactive application of the policy to defendants who already have been sentenced, and thus they did not preclude application to Barnes. The Fifth Circuit denied the petition for rehearing.
Barnes faults Ms. Dougherty for not seeking a limited remand:
Record Document 517, pp. 19-20.
This argument fails for several reasons overlooked by Barnes. According to the Memorandums, Barnes was not entitled to relief because he did not meet the criteria announced by the Attorney General. First, the policy was applicable to defendants who had not yet pled guilty, and ideally, had not yet been charged. Indeed, this Memorandum documented a shift in the Department of Justice's charging policies. When the August 12 Memorandum was issued, Barnes was not awaiting adjudication of guilt or even sentencing; rather, he had been sentenced and his case was already on appeal. Second, the August 29 Memorandum specifically stated that it was not retroactively applicable to cases in which the defendant had already been sentenced: "
Part of Barnes's § 2255 focuses on the argument that, on remand, the Government could have decided whether to apply this policy to his case, and taking this thought to its logical conclusion, he has been deprived of the opportunity to have the Government reconsider the charges against him. Again, Barnes ignores a critical fact — the Government did, indeed, have the opportunity to weigh in on the applicability of the Memorandums to Barnes's case. Consistent with the rationale behind the Memorandums, it unequivocally represented to the Fifth Circuit that Barnes was entitled to no benefits or sentencing reductions. Therefore, Ms. Dougherty cannot be deemed deficient for failing to petition for rehearing to ask for a limited remand to seek clarification on Barnes's sentencing options under the Memorandums when the Government had already documented its position that Barnes was entitled to absolutely no benefits under this new charging policy. Again, defense counsel does not perform deficiently by failing to pursue frivolous, futile, or non-meritorious motions or objections.
In any event, Barnes has once again failed to establish the requisite showing of prejudice stemming from this alleged default. A defendant is not prejudiced if "the ineffectiveness of counsel does not deprive the defendant of any substantive or procedural right to which the law entitles him."
For the foregoing reasons, based on the record and the relevant jurisprudence, this Court finds that Barnes has failed to demonstrate that either his trial counsel or his appellate counsel performed deficiently, and that any deficiency in counsel's respective performance prejudiced Barnes under
Pursuant to Rule 11(a) of the Rules governing § 2255 proceedings for the United States District Courts, this Court must issue or deny a certificate of appealability when it enters a final order adverse to the petitioner. Unless a Circuit Justice or a Circuit or District Judge issues a certificate of appealability, an appeal may not be taken to the court of appeal. In this case, a certificate of appealability is
This discussion plainly involved the maximum possible penalty of life imprisonment, rather than the mandatory minimum of ten years, which is the crux of the § 2255. Thus, there is no prejudice stemming from the above discussion.