Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Reese v. United States

United States District Court, M.D. Alabama, Northern Division

November 15, 2018

ERIC ORLANDO REESE, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          RECOMMENDATION OF THE MAGISTRATE JUDGE

          CHARLES S. COODY UNITED STATES MAGISTRATE JUDGE

         Before the court is Eric Orlando Reese's (“Reese”) motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence by a person in federal custody. Doc. # 1.[1] For the reasons that follow, the court concludes that Reese's § 2255 motion should be denied without an evidentiary hearing and that this action be dismissed with prejudice. Rule 8(a), Rules Governing Section 2255 Proceedings in the United States District Courts.

         I. INTRODUCTION

         In February 2013, a jury found Reese guilty of conspiracy to possess with intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. §§ 846 & 841(a)(1), and three counts of aiding and abetting the use of a communication facility (a cell phone) to facilitate the conspiracy, in violation of 21 U.S.C. § 843(b) & 18 U.S.C. § 2. After a sentencing hearing on June 4, 2013, the district court sentenced Reese to 240 months in prison on the conspiracy count and to 12 months in prison on each count of aiding and abetting the use of a communication facility, all counts to run concurrently.[2] Doc. # 7-18 at 1-2.

         Reese appealed, arguing that the district court erred by (1) granting the Government's “reverse Batson[3] challenge”; (2) allowing cooperating Government witness William Ford to testify about the meaning of certain terms, used in a conversation between Reese and codefendant Willie Davis, as pertaining to drug dealing; and (3) applying guideline enhancements to Reese's sentence based on facts not found by the jury. See Doc. # 7-19.

         On June 1, 2015, the Eleventh Circuit issued an opinion affirming Reese's convictions and sentence. United States v. Reese, 611 Fed.Appx. 961 (11th Cir. 2015); Doc. # 7-20. Reese filed a petition for writ of certiorari in the United States Supreme Court, which that court denied on December 14, 2015.

         On March 30, 2016, Reese, acting pro se, filed this § 2255 motion asserting the following claims:

1. His counsel rendered ineffective assistance by failing to investigate and challenge the use of his prior Alabama drug conviction to enhance his sentence under 21 U.S.C. § 841(b)(1)(B) because the prior conviction did not qualify as a “felony drug offense” under 21 U.S.C. § 802(44).
2. His counsel rendered ineffective assistance by failing to move for a severance of his trial from that of his codefendants.
3. His counsel rendered ineffective assistance by failing to request a limiting instruction regarding consideration of firearms found during searches of his codefendants' residences, and by failing to argue at sentencing and on appeal that a two-level firearm enhancement under U.S.S.G. § 2D1.1(b)(1) should not be applied to him.
4. His counsel rendered ineffective assistance by failing to investigate whether it was his voice on recorded phone calls of drug transactions with codefendant Davis, and by failing to present arguments and evidence that he was not involved in the phone calls.
5. His counsel rendered ineffective assistance at sentencing by failing to request a two-level reduction to his offense level based on Amendment 782 to the Sentencing Guidelines.
6. His counsel rendered ineffective assistance at sentencing and on appeal by failing to argue he should receive a minor-role reduction under U.S.S.G. § 3B1.2(b).
7. His counsel rendered ineffective assistance at sentencing and on appeal by failing to argue that under Alleyne v. United States, 570 U.S. 99 (2013), the amount of cocaine attributed to him as relevant conduct had to be submitted to the jury and found by the jury beyond a reasonable doubt.
8. His counsel rendered ineffective assistance by failing to argue on appeal that he was not part of the drug conspiracy but instead was merely in a buyer-seller relationship with codefendant Davis.

         Doc. # 1 at 2-12.

         On August 28, 2016, Reese amended his § 2255 motion to add claims that (1) under Mathis v. United States, 136 S.Ct. 2243 (2016), his prior Alabama drug convictions used to enhance his sentence were obtained under a statute that is indivisible and defines a controlled substance offense more broadly than the generic definition of the offense; and (2) the district court erred in holding him accountable for five-and-a-half kilograms of cocaine when the jury only found him guilty of conspiracy to possess with intent to distribute 500 grams of cocaine. Doc. # 13; see also Doc. # 17 at 2.

         II. DISCUSSION

         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 may have 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. Claims of Ineffective Assistance of Counsel

         A claim of ineffective assistance of counsel is 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 would have been different.” Id. at 694. See Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000).

         Scrutiny of counsel's performance is “highly deferential, ” and the court indulges a “strong presumption” that counsel's performance was reasonable. Chandler, 218 F.3d at 1314 (internal quotation marks omitted). The court will “avoid second-guessing counsel's performance: It does not follow that any counsel who takes an approach [the court] would not have chosen is guilty of rendering ineffective assistance.” Id. (internal quotation marks and brackets omitted). “Given the strong presumption in favor of competence, the petitioner's burden of persuasion-though the presumption is not insurmountable-is a heavy one.” Id.

         As noted, under the prejudice component of Strickland, a 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.” Strickland, 466 U.S. at 694. A “reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. The prejudice prong does not focus only on the outcome; rather, to establish prejudice, the petitioner must show that counsel's deficient representation rendered the result of the trial fundamentally unfair or unreliable. See Lockhart v. Fretwell, 506 U.S. 364, 369 (1993) (“[A]n analysis focusing solely on mere outcome determination, without attention to whether the result of the proceeding was fundamentally unfair or unreliable, is defective.”). “Unreliability or unfairness does not result if the ineffectiveness of counsel does not deprive the defendant of any substantive or procedural right to which the law entitles him.” Id. at 372.

         Unless a petitioner satisfies the showings required on both prongs of the Strickland inquiry, relief should be denied. Strickland, 466 U.S. at 687. Once a court decides that one of the requisite showings has not been made, it need not decide whether the other one has been. Id. at 697; Duren v. Hopper, 161 F.3d 655, 660 (11th Cir. 1998).

         A criminal defendant's right to effective assistance of counsel continues through direct appeal. See Evitts v. Lucey, 469 U.S. 387, 396 (1985). Ineffective assistance of appellate counsel may be shown if the movant can “establish . . . that counsel omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker[.] Generally, only when ignored issues are clearly stronger than those presented, will the presumption of effective assistance of counsel be overcome.” Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994).

         1. Failure to Investigate and Challenge Prior Drug Conviction

          Reese contends that his counsel[4] was ineffective for failing to investigate and challenge the use of his prior Alabama drug conviction to enhance his sentence under 21 U.S.C. § 841(b)(1)(B). Doc. # 1 at 4-5. He argues that under Descamps v. United States, 570 U.S. 254 (2013), the prior conviction did not qualify as a “felony drug offense” as that term is defined by 21 U.S.C. § 802(44). Id. at 4-5 & 12. He then argues that his counsel's mistaken belief that the prior conviction could be used to enhance his sentence led his counsel to urge him to accept a plea agreement of 240 months in prison instead of seeking a plea deal for 120 months. Id. at 4-5.

         In December 2012, the Government filed a notice of information under § 851 indicating its intent to rely on Reese's 1992 Alabama conviction for sale of a controlled substance and his 2004 Alabama conviction for possession of a controlled substance as prior felony drug convictions to seek an enhanced sentence for Reese of life in prison.[5]Doc. # 7-2. Because Count 1 of the indictment charged Reese with conspiracy to possess with intent to distribute 5 kilograms or more of cocaine (Doc. # 7-1 at 1-2), having two prior convictions for felony drug offenses would have qualified Reese for a mandatory life sentence under 21 U.S.C. § 841(b)(1)(A) if he were to be convicted as charged in Count 1.[6] The jury returned a verdict on Count 1 finding Reese guilty of conspiracy to possess with intent to distribute 500 grams or more of cocaine-a lesser offense and lesser amount than the “5 kilograms or more” charged in the indictment. Doc. # 7-17 at 7. Upon Reese's conviction of the lesser offense, having any prior conviction for a felony drug offense subjected Reese to a sentence of from 10 years to life imprisonment under 21 U.S.C. § 841(b)(1)(B).[7]

         Reese does not specify which of his prior Alabama drug convictions did not qualify as a “felony drug offense” to enhance his sentence under § 841(b)(1)(B). That is of no consequence, however, because both of the prior convictions were qualifying felony drug offenses, and either could have been used to enhance Reese's sentence.[8]

         “Felony drug offense” is defined at 21 U.S.C. § 802(44) as “an offense that is punishable by imprisonment for more than one year under any law of the United States or of a State or foreign country that prohibits or restricts conduct relating to narcotic drugs, marihuana, anabolic steroids, or depressant or stimulant substances.” Under § 802(44), if a state drug offense is punishable by more than one year in prison, whether or not the actual sentence exceeds one year, it qualifies as a “felony drug offense” for purposes of § 841(b)(1)(B). See Burgess v. United States, 553 U.S. 124, 127 (2008) (holding that the definition of “felony drug offense” under § 802(44) is a term of art that includes all drug offenses punishable by more than one year of imprisonment); see also, e.g., Means v. Adduci, 2016 WL 4059708, at *5 (N.D. Ala.), report and recommendation adopted, 2016 WL 4011726 (N.D. Ala. 2016).

         Reese's presentence investigation report (“PSI”) reflects that his 1992 Alabama drug conviction was for the sale of marijuana, for which he was sentenced to 10 years in prison, split to serve 18 months in boot camp and five years on probation.[9] Doc. # 9-1 at 9. Reese's PSI reflects that his 2004 Alabama drug conviction was for possession/receiving in excess of 28 grams of cocaine, in violation of § 13A-12-231(21), Ala. Code 1975. Doc. # 9-1 at 12. For that conviction, an offense considered to be “trafficking, ”[10] Reese was sentenced to 15 years in prison. Id. Based on the nature of the convictions and the sentences imposed, it is evident that Reese's 1992 and 2004 Alabama drug convictions were felony drug offenses.

         Reese argues that courts must apply Descamps v. United States, 570 U.S. 254 (2013), to ascertain whether a prior drug conviction is a felony drug offense that may be used for a sentence enhancement under § 841(b)(1)(B). He suggests that the Alabama controlled substance statutes under which he was convicted are broader than the “felony drug offense” defined in § 802(44), and that because (he says) these Alabama statutes are “indivisible” under the meaning of Descamps, his Alabama drug convictions do not qualify as felony drug offenses usable for § 841(b)(1)(B) enhancement. Doc. # 1 at 4; see also Doc. # 13 at 2. In Descamps, the Supreme Court held that sentencing courts may not apply a “modified categorical approach” to determine if a prior crime of conviction is a “violent felony” under the Armed Career Criminal Act (“ACCA”) when the crime of conviction has “a single, indivisible set of elements.” 570 U.S. at 258. Descamps holds that a “categorical approach” must be applied in determining if a prior conviction under an indivisible statute is a violent felony under the ACCA. Id. Reese argues that because the Alabama statutes under which he was convicted are (in his view) indivisible, a categorical approach must be applied to determine if his Alabama drug convictions are felony drug offenses that may be used for § 841(b)(1)(B) enhancement. If the categorical approach is applied to Reese's Alabama drug convictions, each of the means of committing an offense under the Alabama statutes at issue-including the most innocent conduct that may be penalized under the statutes-must satisfy the definition of “felony drug offense” in § 802(44).

         Reese's argument fails for several reasons. First, it cannot be determined from the record, including Reese's own allegations in his § 2255 motion, which statute Reese's 1992 Alabama drug conviction was obtained under. Thus, Reese does not meet his burden of proving that his 1992 conviction was not a felony drug offense within the meaning of § 802(44). Further, Reese fails to show that either the statute underlying his 1992 Alabama conviction or the statute underlying his 2004 Alabama conviction-§ 13A-12-231(21), Ala. Code 1975-is indivisible and therefore subject to a categorical analysis. Nor does Reese demonstrate that, even under a categorical analysis, there exists a means of violating the Alabama statutes underlying his 1992 and 2004 convictions that would fall outside the definition of felony drug offense in § 802(44). Finally, and perhaps most importantly, Descamps-and its holding requiring the use of the categorical approach with indivisible statutes-is not applicable to Reese's case because Descamps considered whether the modified categorical approach could be used to determine if a prior conviction was a predicate violent felony under the ACCA. Reese's sentence was enhanced under § 841(b)(1)(B), not the ACCA. Descamps does not apply to determine the usability of a prior drug conviction for enhancement under § 841(b)(1)(B). See Mitchell v. United States, 123 F.Supp.3d 1351, 1355 (M.D. Fla. 2015) (rejecting Descamps as a basis for determining whether a prior conviction is a felony drug offense under § 802(44)). “The definition of ‘felony drug offense' as set forth under 21 U.S.C. § 802(44), and not the ACCA, controls enhancing a sentence under § 841.” Dimanche v. United States, 2010 WL 2265652, at * 3-4 (M.D. Fla. 2010). See also Dowe v. United States, 2016 WL 6963061, at *4 (M.D. Fla. 2016) (rejecting use of Descamps analysis to determine if prior drug conviction is a felony drug offense under § 802(44) for use in § 841 enhancement). Reese's prior Alabama convictions for the sale of marijuana (1992) and possession/receiving in excess of 28 grams of cocaine (2004) were both punishable by over one year in prison, and both convictions involved controlled substances congruent to those listed in § 802(44). Those facts qualified the convictions as felony drug offenses usable for § 841(b)(1)(B) enhancement.

         In arguing for relief under Descamps, Reese cursorily asserts that his Alabama drug offenses lacked a mens rea element regarding the illegality of the controlled substances involved and therefore “did not match the federal definition of a controlled substance offense.” Doc. # 1 at 4. However, “‘[n]o element of mens rea with respect to the illicit nature of the controlled substance is expressed or implied by' § 802(44)'s definition of ‘felony drug offense.'” Devero v. United States, 2017 WL 2840670, at *5 (M.D. Fla. 2017) (citation omitted). Further, to the extent Reese, here and elsewhere in his pleadings, appears to argue that his Alabama drug conviction had to be the equivalent of some generic federal drug crime, as opposed to meeting the § 802(44) definition of felony drug offense, such an argument lacks merit. As stated by the district court in Devero:

“The term ‘felony drug offense' means an offense that is punishable by imprisonment for more than one year under any law of the United States or of a State or foreign country that prohibits or restricts conduct relating to narcotic drugs, marihuana, anabolic steroids, or depressant or stimulant substances.” 21 U.S.C. § 802(44) (emphasis added). The words “or of a State or foreign country” make clear that a prior drug conviction need not be the equivalent of a felony under the federal Controlled Substances Act to qualify as a “felony drug offense.” It is sufficient if an offense (1) is punishable by imprisonment for more than one year, (2) under any State law, (3) that regulates conduct relating to narcotics, marijuana, anabolic steroids, depressants, or stimulants.

         2017 WL 2840670, at *5. “[D]etermining whether a prior conviction qualifies as a ‘felony drug offense' under 21 U.S.C. § 841(b)(1)(B) does not require that the crime match the generic definition of some other offense. Section 802(44) supplies the definition of the term ‘felony drug offense,' and it includes any drug crime that state law makes punishable by imprisonment for more than one year.” Id. at *6; see Burgess, 553 U.S. at 129-35 (holding that § 802(44) provides the exclusive definition of a “felony drug offense”).

         Reese fails to show that either of his prior Alabama drug convictions was not a felony drug offense as defined by § 802(44). As such, an argument by Reese's counsel that the prior convictions did not qualify as felony drug offenses would have been meritless. For this reason, Reese fails to show that his counsel was ineffective for failing to investigate and challenge ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.