United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING PETITIONER'S MOTION FOR RETROACTIVE APPLICATION OF GUIDELINES AND RESENTENCING [#93] AND TO STRIKE SECTIONS A, B FROM GROUND 3 OF THE SECTION 2255 PETITION [#105]; DENYING PETITIONER'S MOTION TO VACATE SENTENCE [#99]
GERSHWIN A. DRAIN, District Judge.
On May 21, 2009, Petitioner Quenton Whitsell was arrested, in Detroit, Michigan, for possession of crack cocaine and firearms. The day following his arrest, on May 22, 2009, Petitioner was appointed counsel. On June 4, 2009, Petitioner's counsel suffered a heart attack.
On November 24, 2009, the Court appointed new counsel for Petitioner. After the third appointment of counsel, on June 15, 2010, Petitioner entered a guilty plea. He is presently serving a sentence of 322 months as a result of the guilty plea.
Presently before the Court is Petitioner's Motion to Vacate Sentence [#99]. In United States v. Cronic, 466 U.S. 648 (1984), the Supreme Court held that, under particular circumstances, a criminal judgment can be overturned for ineffective assistance of counsel without a showing of prejudice to defendant's case.
Petitioner contends that, under Cronic, he was constructively denied counsel during the critical pretrial stage of his case. Petitioner primarily asserts that the Court failed in its duty to ensure his right to counsel following the heart attack of his original attorney. He further argues that his counsel failed to conduct adversarial testing.
For the reasons that follow, the Court finds that Petitioner was not denied counsel. Petitioner's motion is DENIED.
II. FACTUAL BACKGROUND
On April 29, 2009, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) utilized a confidential informant to investigate crack cocaine distributors in Detroit. A third party directed the informant to Petitioner, Quenton Whitsell, a crack cocaine supplier. The third party orchestrated the first transaction between Petitioner and the informant for the sale of crack cocaine. At this first transaction, the third party purchased crack cocaine on the informant's behalf. The informant was present when Petitioner sold cocaine to the third party.
After the first transaction, law enforcement officials were able to determine the location of Petitioner's residence. Consequently, ATF agents began to conduct surveillance on the residence. Agents observed two cars at the residence; both cars were registered to Petitioner.
In the second transaction, the informant was able to purchase cocaine directly from Petitioner. The informant successfully engaged in four more direct transactions with Petitioner. Each transaction was covertly videotaped.
On May 21, 2009, ATF agents secured a search warrant for Petitioner's residence. During their search, agents recovered more than 100 grams of crack cocaine and four firearms. Petitioner was present when agents executed the search, and he was arrested on the same day.
On May 22, 2009, attorney, William Swor, was appointed as Petitioner's counsel in the matter; counsel also entered an appearance with the Court on this date. On May 27, 2009, Petitioner was indicted on multiple drug counts and on one count of possessing firearms in furtherance of drug trafficking. Soon thereafter, on June 4, 2009, Swor suffered a heart attack.
On about June 24, 2009, Swor visited Petitioner at the Sanilac County Jail. During the visit, Swor presented Petitioner with a plea agreement. On September 28, 2009, at a scheduled pretrial hearing, Petitioner was notified that his case had been reassigned to another judge sitting on the Court. After the hearing, Petitioner expressed to Swor that he was concerned about what he perceived as a lack of discovery and consultation. On October 16, 2009, Petitioner forwarded a letter to the Court, acting on his desire to have Swor removed as counsel.
On November 10, 2009, Petitioner attended a meeting with Swor at the federal court building. At the meeting, Petitioner refused to cooperate with the Government. Instead Petitioner used the opportunity to speak one-on-one with Swor. Petitioner urged counsel to investigate the veracity of the search warrant executed on May 21, 2009, and the supporting affidavit that justified the warrant. Specifically, Petitioner insisted that counsel locate his cell phone records. Petitioner believed that his cell phone records
Following the meeting at the federal courthouse, Petitioner submitted a third letter to the Court requesting removal of counsel. On November 24, 2009, the Court granted Petitioner's request. The Court appointed William Winters as new counsel for Petitioner. On January 21, 2010, Winters filed a motion to suppress the crack cocaine and firearms recovered from the search of Petitioner's home. On March 12, 2010, the Court denied Petitioner's suppression motion. Dissatisfied with Winters, the Court granted counsel's motion to withdraw, on May 4, 2010.
For more than one month, Petitioner represented himself until June 15, 2010, when the Court appointed attorney, Allen Early. Early was Petitioner's third court-appointed attorney. On June 17, 2010, Early filed an appearance with the Court.
On July 21, 2010, Petitioner entered a guilty plea for possession with intent to distribute more than 50 grams of cocaine base. Petitioner was sentenced to 322 months imprisonment, on December 17, 2010.
On January 18, 2011, Petitioner, proceeding pro se, filed a Notice of Appeal. Subsequently, Early was granted permission to withdraw as counsel. The Court then appointed J. Patten Brown III as appellate counsel.
On May 20, 2011, Petitioner e-mailed Brown. In the e-mail, Petitioner informed Brown about Swor's heart attack. He also attested to the lack of investigation and adversarial testing that he believed he had experienced as a result of Swor's heart attack. He instructed Brown to raise the issue on direct appeal.
On May 31, 2011, Petitioner received an e-mail from Brown in response to his May 20 e-mail. Brown informed Petitioner that he would not raise an ineffective assistance of counsel issue on direct appeal. Brown explained to Petitioner that the effect of Swor's medical condition on his case could only be raised in a Section 2255 petition after a direct appeal. On September 26, 2011, Brown submitted the issues for direct appeal without raising a denial of counsel claim.
III. LAW AND ANALYSIS
A. Legal Standard
1. Section 2255 Habeas Relief
Title 28 U.S.C. Section 2255 permits a prisoner in federal custody to challenge the legality of his detention. See Wooten v. Cauley, 677 F.3d 303, 306 (6th Cir. 2012). A federal prisoner may do this by filing a motion with the imposing court, seeking to vacate, set aside or correct the sentence." 28 U.S.C. § 2255(a). To prevail on a Section 2255 motion for constitutional error, the petitioner must show that the error had a substantial and injurious effect or influence on the proceedings. Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993); Humphress v. United States, 398 F.3d 855, 860 (6th Cir. 2005). The "substantial and injurious effect" standard is in essence an assessment of the prejudicial impact of the constitutional violation. See McCary v. Lewis, 255 F.Appx. 78, 79 (6th Cir. 2007) (citing Fly v. Pliler, 551 U.S. 112 (2007)).
"An ineffective-assistance-of-counsel claim may be brought in a collateral proceeding under § 2255." Massaro v. United States, 538 U.S. 500, 500 (2003). The claim may be brought "whether or not the petitioner could have raised the claim on direct appeal." Id.
2. Ineffective Assistance of Counsel - General Principles
The Supreme Court has held that "[a]n accused's right to be represented by counsel is a fundamental component of our criminal justice system." United States v. Cronic, 466 U.S. 648, 654 (1984). Therefore, a criminal judgment may be overturned if the defendant has suffered an ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 684 (1984).
A defendant can demonstrate ineffective assistance of counsel using one of two standards: Strickland or Cronic. In demonstrating an ineffective assistance of counsel claim under Strickland, the defendant is first required to show that counsel's performance was deficient. Id. at 687. At this step, defendant must demonstrate that "counsel made errors so serious that counsel was not functioning ...