United States District Court, M.D. Alabama, Northern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
WALLACE CAPEL, Jr., Magistrate Judge.
This matter is before the court on a motion by Kelvin Larone Williams ("Williams") to vacate, set aside, or correct sentence under 28 U.S.C. § 2255.
On January 21, 2010, a jury found Williams guilty of three counts of distribution of crack cocaine, in violation of 21 U.S.C. § 841(a)(1) (Counts 1 through 3 of the indictment); one count of conspiracy to possess with intent to distribute crack cocaine, in violation of 21 U.S.C. § 846 (Count 4); and one count of aiding and abetting the distribution of crack cocaine, in violation of 21 U.S.C. § 841(a)(1) & 18 U.S.C. § 2 (Count 5). On November 23, 2010, the district court sentenced Williams to 180 months in prison.
Williams appealed. His appointed counsel filed a no-merit " Anders brief" with the Eleventh Circuit. On November 29, 2011, the appellate court affirmed his convictions and sentence, finding no arguable issues of merit upon independent review of the record. United States v. Williams, No. 10-15568.
On April 26, 2012, Williams, proceeding pro se, filed this motion under 28 U.S.C. § 2255, asserting the following as grounds for relief:
GROUND 1: He is actually innocent of the distribution charges in Counts 1 through 3 of the indictment, because the government did not (a) prove its jurisdiction over crimes occurring in Lowndes County, Alabama, and (b) prove he is a "citizen" within the meaning of Title 21 of the United States Code.
GROUND 2: He is actually innocent of the conspiracy charge in Count 4 of the indictment, because his sole codefendant was acquitted of this count and he could not be convicted of conspiring with the government's confidential informant.
GROUND 3: He is actually innocent of Count 5 of the indictment, on the ground that crack cocaine is not a controlled substance because the word "crack" is not defined under 21 U.S.C. § 841(a)(1).
GROUND 4: His trial and appellate counsel rendered ineffective assistance by failing to file any of 100 pretrial and trial motions available for his defense.
Doc. No. 1.
Williams later amended his § 2255 motion to add the following claims:
GROUND 5: His trial and appellate counsel rendered ineffective assistance by failing to challenge the DEA's use of (a) a confidential informant and (b) electronic surveillance. GROUND 6: The sentence imposed against him violates the Supreme Court's recent holding in United States v. Alleyne .
Doc. Nos. 16 & 42.
The government argues that all of Williams's claims lack merit and that he is therefore not entitled to collateral relief. Doc. Nos. 35 & 45. After consideration of Williams's § 2255 motion, the submissions supporting and opposing the motion, and the record, the court concludes that an evidentiary hearing is not required and that, under Rule 8(a), Rules Governing Section 2255 Proceedings in the United States District Courts, the § 2255 motion should be denied.
A. General Standard of Review
Because collateral review is not a substitute for direct appeal, the grounds for collateral attack on final judgments under 28 U.S.C. § 2255 are limited. A prisoner is entitled to relief under § 2255 if the court imposed a sentence that (1) violated the Constitution or laws of the United States, (2) exceeded its jurisdiction, (3) exceeded the maximum authorized by law, or (4) is otherwise subject to collateral attack. See 28 U.S.C. § 2255; United States v. Phillips, 225 F.3d 1198, 1199 (11th Cir. 2000); United States v. Walker, 198 F.3d 811, 813 n.5 (11th Cir. 1999). "Relief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional rights and for that narrow compass of other injury that could not have been raised in direct appeal and would, if condoned, result in a complete miscarriage of justice.'" Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004) (citations omitted).
B. Substantive Claims Not Raised on Direct Appeal
Grounds 1 through 3 in Williams's § 2255 motion present substantive non-ineffective assistance of counsel claims that could have been raised on direct appeal, but were not. Ordinarily, if an available substantive claim is not advanced on direct appeal, it is procedurally barred in a § 2255 proceeding. See Mills v. United States, 36 F.3d 1052, 1055-56 (11th Cir. 1994); Greene v. United States, 880 F.2d 1299, 1305 (11th Cir. 1989). A defendant can avoid a procedural bar by demonstrating "cause" for not raising the claim of error on direct appeal and actual prejudice from the alleged error. Lynn v. United States, 365 F.3d 1225, 1234 (11th Cir. 2004).
Williams suggests the failure of his trial and/or appellate counsel to raise these substantive claims constitutes ineffective assistance (Doc. No. 1 at 4-8) and therefore constitutes "cause" excusing a procedural default of these claims. Ineffective assistance of counsel may satisfy the cause exception to a procedural bar, if the claim of ineffective assistance is meritorious. Greene, 880 F.2d at 1305. The court will therefore consider all of Williams's substantive claims (exception for his claim under United States v. Alleyne ) in the context of his allegations of ineffective assistance of counsel, discussed below.
C. Ineffective Assistance of Counsel
A claim of ineffective assistance of counsel must be evaluated against the two-part test announced in Strickland v. Washington, 466 U.S. 668 (1984). First, a petitioner must show that "counsel's representation fell below an objective standard of reasonableness." Id. at 689. Second, the petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding ...