United States District Court, D. Alaska
ORDER ON MOTION TO VACATE, SET ASIDE, OR CORRECT
SENTENCE PURSUANT TO 28 U.S.C. § 2255 (DKT. 70)
TIMOTHY M. BURGESS, UNITED STATES DISTRICT JUDGE
I.
INTRODUCTION
The
matter comes before the Court on Defendant Abreain Terron
Dalton's Motion to Vacate, Set Aside, or Correct pursuant
to 28 U.S.C. § 2255 (the
“Motion”).[1] The Motion seeks to vacate Dalton's
sentence and dismiss the Indictment with prejudice on the
grounds that he was provided ineffective assistance of
counsel.[2] The United States opposes the
Motion.[3] Dalton did not file a reply, and the time
in which to do so has now passed. The parties did not request
an oral argument and the Court finds it would not be helpful.
For the reasons stated below, Dalton's Motion to Vacate
is DENIED.
II.
BACKGROUND
This
case arises out a guilty plea Dalton entered, in which he
admitted to one count of Possession of a Controlled Substance
with Intent to Distribute, in violation of 21 U.S.C. §
841(a)(1); and one count of Carrying a Firearm During and in
Relation to Drug Trafficking, in violation of 21 U.S.C.
§ 924(c)(1)(A)(i).[4] On April 29, 2017, Dalton was found in
possession of at least five grams of methamphetamine in
addition to quantities of heroin, powder cocaine, and
“crack” cocaine.[5] At the time, Dalton also carried
an HS Products (IM Metal), model XDS, .45 caliber
pistol.[6]
The
State of Alaska charged Dalton with crimes related to the
drugs and weapons found on or near his person and, on May 4,
2017, a grand jury for the State of Alaska indicted Dalton on
the charges.[7] Following the state grand jury indictment,
the United States also filed a criminal complaint against
Dalton.[8] On May 5, 2017, the Court held an initial
appearance and appointed a Federal Public Defender, Attorney
Darrel Gardner (“Counsel”), to represent
Dalton.[9]
On May
18, 2017, the federal grand jury returned a two count
indictment, alleging one count of Possession of a Controlled
Substance with Intent to Distribute, under 21 U.S.C.
§§ 841(a)(1) and (b)(1)(C); and one count of
Carrying a Firearm During and in Relation to Drug
Trafficking, under 18 U.S.C. §
924(c)(1)(A)(i).[10] Later, a Superseding Indictment was
issued which modified the charge in Count 1 to include a
violation of 21 U.S.C. §§
841(b)(1)(C).[11] itially, Dalton pleaded not guilty to
each count.[12] However, after negotiating a Plea
Agreement[13]with the United States, Dalton filed a
Notice of Intent to Change Plea on September 26,
2017.[14]
On
October 10, 2017, Dalton pleaded guilty to both counts in the
Superseding Indictment.[15]On March 9, 2018, the Court accepted
Dalton's plea and sentenced him to a 180-month term of
imprisonment followed by a five-year term of supervised
release.[16] Dalton was also assigned a $200 special
assessment and ordered to forfeit $4, 380.[17] Dalton was
represented by Counsel at his preliminary hearing,
arraignment and plea, and sentencing.[18]
Dalton
filed the present Motion on September 11, 2018 setting forth
two grounds for relief: (1) that he received ineffective
assistance of counsel in violation of the Sixth Amendment
where Counsel advised him to enter into the Plea Agreement
when the Double Jeopardy Clause precluded his federal
prosecution; and (2) that he received ineffective assistance
of counsel where Counsel failed to challenge Count 2 of the
Superseding Indictment on the basis that Dalton did not
“use” a firearm as required under 18 U.S.C.
§ 924(c).[19] On Dalton's motion, the Court
appointed counsel to represent Dalton in his § 2255
proceedings.[20] On June 20, 2019, Dalton notified the
Court that he intended to rely on his initial § 2255
pleading.[21] The United States then filed its
Response on August 19, 2019.[22] The United States opposes
Dalton's Motion on each ground.[23] The Motion has been fully
briefed and is now ripe for resolution.
III.
LEGAL STANDARD
Under
28 U.S.C. § 2255(a), a district court may “vacate,
set aside, or correct” a sentence of a federal prisoner
that was imposed in violation of the Constitution or a law of
the United States. On a motion for relief under 28 U.S.C.
§ 2255, “[u]nless the motion and the files and
records of the case conclusively show that the prisoner is
entitled to no relief, the court shall . . . grant a prompt
hearing thereon, determine the issues and make findings of
fact and conclusions of law with respect
thereto.”[24] If the Court determines that relief is
warranted, “the court shall vacate and set the judgment
aside and shall discharge the prisoner or resentence him or
grant a new trial or correct the sentence as may appear
appropriate.”[25]
However,
“the district court may deny a § 2255 motion
without holding an evidentiary hearing if ‘(1) the
petitioner's allegations, accepted as true, would not
entitle him to relief; or (2) the allegations cannot be
accepted as true because they are contradicted by the record,
inherently incredible, or allege conclusions rather than
statements of fact.'”[26] Thus, “if the
record refutes the applicant's factual allegations or
otherwise precludes habeas relief, a district court is not
required to hold an evidentiary hearing.”[27]
“Section 2255 requires only that the district court
give a claim careful consideration and plenary processing,
including full opportunity for presentation of the relevant
facts.”[28]
A.
Ineffective Assistance of Counsel
A claim
of ineffective assistance of counsel is rooted in the Sixth
Amendment right to counsel, which is applicable at the
plea-bargaining stage of a criminal proceeding.[29] A defendant
asserting a claim of ineffective assistance of counsel must
satisfy the two-pronged test defined in Strickland v.
Washington.[30] Under that test, a defendant must show
that (1) counsel's performance was deficient,
i.e., “fell below ‘an objective standard
of reasonableness;'”[31] and (2) that the deficiency
was prejudicial to the defense, i.e., “there
is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different.”[32]
In
addressing the first element, judicial scrutiny of an
attorney's performance, especially in hindsight, is
highly deferential.[33] Attorney conduct should be evaluated
from the attorney's perspective at the time of the
representation.[34] Generally, an attorney's performance
is strongly presumed to fall within the wide range of
reasonably professional, competent assistance.[35] “The
reasonableness of counsel's actions may be determined or
substantially influenced by the defendant's own
statements or actions. Counsel's actions are usually
based, quite properly, on informed strategic choices made by
the defendant and on information supplied by the
defendant.”[36]
The
second element, prejudice, “focuses on the question
whether counsel's deficient performance renders the
result of . . . the proceeding fundamentally
unfair.”[37] A reasonable probability that the
results of the proceeding would have been different is
“a probability sufficient to undermine confidence in
the outcome.”[38] A defendant must make a greater showing
than simply asserting an error that could theoretically have
some effect on the outcome of the proceeding, but, a showing
by a preponderance of the evidence is not required by
Strickland.[39]
Thus, a
defendant must prove both deficient performance and
consequent prejudice to succeed in establishing ineffective
assistance.[40] The court may evaluate one or both
prongs in determining whether to grant a defendant's
habeas petition on these grounds. However, the court need not
inquire whether an attorney's performance was deficient
if such alleged deficiency could not have resulted in
prejudice under Strickland.[41]
B.
Ineffective Assistance of Counsel in Plea Agreements
“Because
‘an intelligent assessment of the relative advantages
of pleading guilty is frequently impossible without the
assistance of an attorney' . . . counsel have a duty to
supply criminal defendants with necessary and accurate
information.”[42] Where a petitioner alleges ineffective
assistance of counsel when entering into a plea agreement,
“[t]he longstanding test for determining the validity
of a guilty plea is ‘whether the plea represents a
voluntary and intelligent choice among the alternative causes
of action open to the defendant.'”[43] For a guilty
plea, a petitioner can only “attack the voluntary and
intelligent character of the guilty plea by showing that the
advice he received from counsel was not within [the range of
competence demanded of attorneys in criminal
cases].”[44] In addition, to satisfy the prejudice
prong of the Strickland standard in the context of a
guilty plea, a petitioner must “show the outcome of the
plea process would have been different with competent
advice;” in other words, the petitioner must show
“that there is a reasonable probability that, but for
counsel's errors, [the defendant] would not have pleaded
guilty and would have insisted on going to
trial.”[45]
IV.
ANALYSIS
Dalton
raises two grounds for ineffective assistance of counsel:
first, that he received ineffective assistance of counsel in
violation of the Sixth Amendment where Counsel failed to
raise a double jeopardy claim; and second, that he received
ineffective assistance of counsel where Counsel failed to
challenge Count 2 of the Superseding Indictment on the basis
that Dalton did not “use” a firearm as required
under 18 U.S.C. § 924(c).[46] The United States argues that
each of Dalton's assertions are without
merit.[47] The Court discusses each of Dalton's
asserted grounds for relief in turn.
A.
Whether Counsel Was Ineffective for Failing to Advise Dalton
of a Double Jeopardy Claim
Dalton
first argues Counsel was ineffective for failing to advise
him that the United States was precluded, under the Double
Jeopardy Clause, from prosecuting him for the crimes alleged
in the Superseding Indictment because the state had
previously indicted him for the same crimes.[48] Dalton's
claim fails for two reasons: first, Dalton was not twice put
in jeopardy; and second, even if he was twice put in
jeopardy, the dual sovereignty doctrine allows him to be
prosecuted for the same conduct at the state and federal
level.[49] Therefore, Counsel was not ineffective
for failing to advise him on a double jeopardy claim, nor did
any prejudice result.
1.
Dalton Was Not Twice Put in Jeopardy
Dalton
claims that he was twice put in jeopardy because
“Dalton was being charged at the same time in the
Superior Court of the State of Alaska, and in the Federal
District Court for the same crime . . .
.”[50] The Double Jeopardy Clause, contained
within the Fifth Amendment, protects individuals from being
twice put in jeopardy for the same offense.[51] Under the
Fifth Amendment, jeopardy “attaches” when the
trial jury is sworn or-in the case of a non-jury trial-when
the first witness is sworn.[52] It is well-settled that a
defendant is not put in constitutional jeopardy when there is
more than one attempt to obtain a grand jury
indictment.[53]
It is
undisputed that Dalton was indicted by the State of Alaska
and the United States for crimes relating to the same
conduct.[54] However, a trial jury was not empaneled
in the federal case.[55] Nor has Dalton put on evidence that a
trial jury was sworn in his state case. In fact, the evidence
that he provides suggests that all charges were dismissed
before proceeding to trial.[56] Only the federal case moved
forward and Dalton ultimately agreed to plead guilty rather
than submit the case to a jury. Therefore, Dalton has not
shown that he was twice put in jeopardy. Accordingly, Dalton
cannot prove that Counsel's assistance was objectively
unreasonable for failing to advise him on a double jeopardy
claim that never materialized and Dalton cannot show that he
was prejudiced as a result.
2.
Dalton's Double Jeopardy Claim Would Have Failed
Under the Dual Sovereignty Doctrine
Even if
Dalton had shown that he was twice put in jeopardy for the
same offense, his claim would have failed. “Under the
dual sovereignty doctrine, successive prosecutions by
separate sovereigns for crimes arising out of the same acts
are not barred by the Double Jeopardy
Clause.”[57] The dual sovereignty doctrine considers
that “[w]hen a defendant in a single act violates the
‘peace and dignity' of two sovereigns by breaking
the laws of each, he has committed two distinct
‘offences.'”[58] To determine whether the dual
sovereignty doctrine allows for a second prosecution, courts
must look to “whether the two [prosecuting] entities
draw their authority to punish the offender from distinct
sources of power.”[59]
Here,
Dalton was charged in the Superior Court for the State of
Alaska for violations of state law.[60] Subsequently, Dalton was
charged by the United States for violations of federal
law.[61] Although the charges related to the same
conduct, each prosecuting entity relied on its own, separate
authority to prosecute Dalton. Therefore, even if jeopardy
had attached in either his state or federal case, the Double
Jeopardy Clause would not have barred prosecutions sought by
the two, separate entities. Accordingly, Counsel was not
ineffective for failing to raise the issue and Dalton
suffered no prejudice.
B.
Whether Counsel Was Ineffective for Failing to Investigate
the Requirement Whether Dalton's Conduct Violated 18
U.S.C. § 924
Dalton
claims that Counsel was ineffective for failing to provide
competent advice in light of the Supreme Court's holding
in Bailey v. United States.[62] Dalton asserts that had
Counsel advised him on the holding of Bailey, he
would not have pleaded guilty to Count 2 “and would
have insisted on going to trial.”[63] In order to
prevail on his claim, Dalton must show that Counsel did not
advise him about Bailey, that the failure to advise
him about Bailey fell below the objective standard
of reasonableness espoused by Strickland, and that
Dalton suffered prejudice because of Counsel's
failure.[64]
Title
18 U.S.C. § 924(c)(1)(A) punishes any person who, during
a drug trafficking crime, “uses, ”
“carries, ” or “possesses” a firearm.
Bailey interpreted what constitutes
“use” of a firearm under §
924(c)(1)(A).[65] Specifically, Bailey held that
evidence of mere possession or concealment of a firearm for
later use does not constitute “use” under §
924(c)(1)(A).[66] The Bailey Court expressly did
not interpret the meaning of “carry” under the
statute.[67] Dalton was charged under §
924(c)(1)(A)(i) with carrying a HS Products (IM Metal), model
XDS, .45 caliber pistol, serial number: XS686107, during and
in relation to the crime of possession with intent to
distribute a controlled substance.[68] Bailey turns on
a statutory term-i.e. “use”-that is
inapposite to Dalton's charge, which solely relies on the
“carry” language under §
924(c)(1)(A).[69] For this reason, the Court finds that
Dalton's overarching claim must fail.
First,
assuming Counsel failed to advise Dalton regarding
Bailey, it is not objectively unreasonable for an
attorney to refrain from discussing a case which is arguably
irrelevant to their client's case. Second, even if
failure to discuss Bailey with Dalton was deficient
performance, it did not prejudice Dalton. The Plea Agreement
correctly stated the elements that the United States had the
burden to prove at trial “1) the defendant committed
the crime of possession with intent to distribute, as alleged
in Count 1 of the indictment; 2) the defendant knowingly
carried a firearm during and in relation to that drug
trafficking crime.”[70] Therefore, despite
Counsel's alleged failure, Dalton was accurately and
adequately informed of the elements the United States would
have had to prove at trial. With this knowledge, Dalton chose
to enter a guilty plea.[71] Accordingly, Counsel was not
ineffective for failing to advise Dalton on Bailey,
and Dalton suffered no prejudice.
Dalton
has not shown that he was denied adequate representation as
guaranteed under the Sixth Amendment. Accordingly, he is not
entitled to relief under ...