The opinion of the court was delivered by: Hon. Janet T. Neff
This matter is before the Court on Gary Lee Griggs' Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (Dkt 52). The Government has filed a detailed Response in Opposition (Dkt 54) on the basis that Griggs waived his right to file a § 2255 motion pursuant to his Plea Agreement, and regardless, his motion fails on the merits (Resp. 1). For the reasons stated by the Government, as discussed below, Griggs' motion is properly denied.
Griggs was arrested*fn1 on December 12, 2006 by Grand Rapids Police Department detectives, who questioned him at a basketball game at Central High School after they received information that a spectator at the game had a gun. Detectives located three individually-wrapped rocks of crack cocaine and a loaded, 9 millimeter, 10-round magazine in Griggs' pants pocket. Griggs was asked if he possessed a firearm, and Griggs replied that he had passed the firearm to a friend as he entered the gymnasium, because the school had metal detectors and he did not want to get caught with the firearm. (PSIR at ¶¶ 17-22.) Detectives subsequently determined that Griggs had a firearm on his person at the basketball game, but managed to drop it under the bleachers when he saw the detectives. The firearm then was retrieved by a friend. Griggs later confirmed this information during his presentence interview. (PSIR at ¶ 24.)
Griggs ultimately was charged in a three-count Indictment with felony offenses: Count One-possession with intent to distribute more than five grams of cocaine base; Count Two-possession with intent to distribute more than five grams of cocaine base in a public secondary school; and Count Three-possession of ammunition by a convicted felon. (Dkt 1, Indictment).
On October 10, 2007, the United States filed an Information and Notice of Prior Felony Drug Convictions ("Notice"), pursuant to 21 U.S.C. § 851, informing Griggs of enhanced penalties for Counts One and Two based on his two prior felony drug convictions (Dkt 22, Notice). As set forth in the Notice, and in the Presentence Investigation Report, Griggs had an April 20, 2004 conviction for possession of a narcotic/cocaine less than 25 grams, and a February 8, 2006 conviction for delivery/manufacturing of a controlled substance less than 50 grams. (id. at ¶ 2; see also PSIR at ¶¶ 59, 62.) As stated in the Government's Response, Griggs' prior felony convictions subjected him to potential life imprisonment:
Griggs had an April 20, 2004 conviction for possession of a narcotic/cocaine less than 25 grams, and a February 8, 2006 conviction for delivery/manufacturing of a controlled substance less than 50 grams. (R. 22: Notice at ¶ 2; see also PSIR at ¶¶ 59 and 62.) These two prior felony drug convictions, therefore, subjected Griggs to increased penalties if convicted of either Count One or Count Two of the Indictment. See 21 U.S.C. §§ 841(b) and 860(a). Consequently, since the Section 851 Notice was filed, Griggs's mandatory minimum for Count One would have increased from five years to 10 years, and his maximum sentence would have increased from 40 years to life. As for Count Two, generally a person convicted of possession with intent to distribute a controlled substance on the real property of a public secondary school faces "(1) twice the maximum punishment authorized by 841(b) . . . and (2) at least twice any term of supervised release authorized by section 841(b) . . . ." See 21 U.S.C. § 860(a). Consequently, Griggs's conviction on Count Two for violating 21 U.S.C. § 860 subjected him to a mandatory minimum of 10 years (instead of five), a maximum of 80 years (instead of 40), a fine of $4,000,000 (instead of $2M), and supervised release of "at least eight years" (instead of "at least four years"). See 21 U.S.C. §§ 860(a) and 841(b)(1)(B). However, because Griggs had "two or more prior convictions for a felony drug offense" that had become final, Griggs' conviction on Count Two subjected him to be "sentenced to a mandatory term of life imprisonment without release and fined in accordance with the preceding sentence." See 21 U.S.C. § 841(b)(1)(A) (emphasis added). Therefore, because Griggs had two prior felony drug convictions, and because the United States provided him with Notice of his two prior felony convictions, pursuant to 21 U.S.C. § 851, Griggs faced a statutorily mandated term of "life" in prison upon his conviction on Count Two. (Gov't Resp. at 3-4; Dkt 22, Notice)
Griggs entered into a written Plea Agreement, which required him to plead guilty to Count Two of the Indictment (Dkt 30, Plea Agreement at ¶ 1). Griggs acknowledged that his conviction on Count Two carried a mandatory sentence of life in prison without the possibility of parole, based on his two prior felony drug convictions (id. at ¶ 3). The United States agreed to a binding sentencing range of 240 to 300 months (20 to 25 years) in prison in exchange for Griggs' promise of continued cooperation and his waiver of his right to file a direct appeal or collaterally attack his conviction or sentence (id. at ¶¶ 3, 7E, 8, 10). Specifically, paragraph 10 of the Plea Agreement states:
Waiver of Appeal and Collateral Attack
The Defendant understands that the law affords him the right to appeal the sentence imposed. Acknowledging this, the Defendant knowingly waives the right to appeal the sentence as determined by the Court at sentencing and the manner in which the sentence was determined on the grounds set forth in 18 U.S.C. § 3742 or any ground whatever, in exchange for the concessions made by the United States Attorney's Office in this plea agreement, including but not limited to the 300-month sentence cap. The Defendant also waives the right to challenge such a sentence and the manner in which it was determined in any collateral attack, including but not limited to, a motion brought under Title 28, United States Code, § 2255 (except a post-conviction attack based upon a claim of ineffective assistance of counsel or a claim of newly discovered evidence). This agreement does not affect in any way the right of the U.S. Attorney's Office to appeal the sentence imposed by the Court. (Dkt 30, Plea Agreement at ¶ 10 (emphasis added)).
On November 21, 2007, pursuant to the Plea Agreement, Griggs pled guilty to Count Two of the Indictment, possession with intent to distribute cocaine base on real property of a public secondary school in violation of 21 U.S.C. § 860 (Dkts 33-34). On July 25, 2008, he was sentenced to 252 months imprisonment followed by 8 years of supervised release and, a Judgment was entered on July 28, 2008. 21 U.S.C. § 860, 841(a)(1) and (b)(1)(B)(iii). (Dkt 45 at 1.) Griggs did not appeal the Judgment. On July 16, 2009, Griggs filed this Motion to Vacate, Set Aside, or Correct his Sentence pursuant to 28 U.S.C. § 2255.
In support of his motion, Griggs argues that the "21 U.S.C. § 841(b)(1)(A) and § 851 enhancement" was unconstitutionally applied to his sentence pursuant to the United States Sentencing Guidelines (U.S.S.G.) Manual "4B1.2, CMT application N.1" (Def's. Mem. 1). He seeks relief in the form of resentencing on the ground that his counsel was ineffective for failing to challenge ...