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Laird v. United States

United States District Court, W.D. Michigan, Southern Division

March 8, 2017




         Petitioner Laird moves to vacate his 135-month sentence for conspiracy to possess with intent to distribute 500 grams or more of cocaine. There is no merit to Petitioner's position, and the motion is DENIED.


         A grand jury returned an indictment against Laird on January 25, 2013. Laird was charged with one count 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 841(b)(1)(B). After a trial, the jury convicted Laird on this count. The Court imposed a guideline sentence of 135 months on September 10, 2013. The Sixth Circuit Court of Appeals affirmed Laird's conviction on November 12, 2014.[1] On September 24, 2015, Laird filed a Section 2255 motion (Case No. 1:15-cv-953, ECF No. 1).


         A federal prisoner may challenge his sentence by filing in the district court where he was sentenced a motion under 28 U.S.C. § 2255. A valid Section 2255 motion requires a petitioner to show that “the sentence was imposed in violation of the Constitution or laws of the United States, the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). Section 2255 affords relief for a claimed constitutional error only when the error had a substantial and injurious effect or influence on the proceedings. Watson v. United States, 165 F.3d 486, 488 (6th Cir. 1999). Non-constitutional errors generally are outside the scope of Section 2255 relief, and they should afford collateral relief only when they create a “fundamental defect which inherently results in a complete miscarriage of justice, or, an error so egregious that it amounts to a violation of due process.” Id. (internal quotation marks omitted). Generally, with the exception of claims of ineffective assistance of counsel, claims not first raised on direct appeal are procedurally defaulted and may not be raised on collateral review. Massaro v. United States, 538 U.S. 500, 503-04 (2003). “Where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can first demonstrate either cause and actual prejudice, or that he is actually innocent.” Bousley v. United States, 523 U.S. 614, 622 (1998) (internal citations and quotation marks omitted).

         Petitioner attacks his sentence by alleging several variations of the argument that his defense counsel provided ineffective assistance.[2] Normally, to establish a claim of ineffective assistance, a criminal defendant must show deficient performance and actual prejudice. Strickland v. Washington, 466 U.S. 688, 687 (1984); Roe v. Flores-Ortega, 528 U.S. 470, 476-77 (2000). A district court “must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct, and judicial scrutiny of counsel's performance must be highly deferential.” Flores-Ortega, 528 U.S. at 477. Counsel must be “a reasonably competent attorney” and give “reasonable effective assistance.” Strickland, 466 U.S. 687. Petitioner must show that “counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.” Id. In the plea context, actual prejudice means “a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). Petitioner has not established ineffective assistance in this case.

         I. Plea Agreement

         Petitioner's first claim alleging ineffective assistance of counsel[3] arises out of a proffer he gave on January 29, 2013, under a signed proffer letter. Three weeks later, on February 21, 2013, the government advised defense counsel, Ms. O'Briant, that Laird “was not fully forthcoming in his proffer” and that the government “cannot offer him a plea agreement at this point.” (Case No. 1:13-cr-26, ECF No. 14, PageID.131-133). Although Laird provided the prosecution with details about the role of his co-defendants in the conspiracy, he was not forthcoming about his own role in that conspiracy. In particular, Laird had failed to disclose to the government that he had carried four and a quarter kilograms of cocaine on foot around the Hebbronville checkpoint. (Id., ECF No. 324, PageID.2677-2678).

         Laird claims that “[t]rial counsel was ineffective for . . . failing to secure a plea agreement offered to Laird by the prosecutor, thus, causing Laird to lose the benefit of the plea.” (Case No. 1:15-cv-953, ECF No. 1, PageID.4). Laird further alleges that “[t]he prosecutor offered Laird a (4) point reduction for his proffer and for substantial assistance. Laird advised his counsel he wanted to cooperate and did so, however, his counsel abandoned him and failed to follow threw [sic] with the deal, thus causing Laird to lose the benefit of the guilty plea.” Id. In essence, Laird argues that Ms. O'Briant provided ineffective assistance by failing to follow up with the government on Laird's proffer deficiencies, and by failing to inform him on what he needed to do to complete the plea-bargain process.[4]

         Laird also claims that “[c]ounsel was deficient in giving Laird inaccurate sentencing advice about not being able to receive more time in prison for going to trial, and that his only option was trial.” (Id., ECF No. 2, PageID.16). In other words, Laird alleges that Ms. O'Briant provided ineffective assistance by erroneously advising him that his only option was going to trial, and by failing to accurately inform him as to the range of punishment he might face if convicted at trial.

         The Sixth Amendment right to effective assistance of counsel applies to all critical stages of criminal proceedings. Missouri v. Frye, 566 U.S. 133, 140 (2012) (quoting Montejo v. Louisiana, 556 U.S. 778, 786 (2009)). Plea bargain negotiation is a critical stage of the criminal proceedings. Id. at 144. “[A]s a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused.” Id. at 145.

         Here, there is no dispute that Laird received the prosecution's offer of a plea bargain. Instead, Laird argues that Ms. O'Briant provided ineffective assistance by failing to inform him regarding the plea requirements and providing him with inaccurate advice regarding the consequences for proceeding to trial. Laird's claims are corroborated by Ms. O'Briant's admission that she left on a weeks-long vacation during the period of plea negotiation and never communicated to Laird what was wrong with his proffer. (ECF No. 14, PageID.126-127) (“Because I did not realize that AUSA Shekmer had explained what she believed was wrong with the proffer, I never communicated this to my client.”). Additionally, Ms. O'Briant admitted that she erroneously advised Laird on the consequences of proceeding to trial. Id. at PageID.128 (“I erroneously believed and advised Mr. Laird that he had nothing to lose by taking the matter to trial.”). In fact, it appears that Ms. O'Briant is essentially willing-even eager-to fall on her sword and admit her performance as counsel was deficient.

         But even assuming defense counsel's performance was deficient, Petitioner fails to establish prejudice. The Supreme Court instructs that “[i]n the context of pleas a defendant must show the outcome of the plea process would have been different with competent advice.” Lafler v. Cooper, 566 U.S. 156, 163 (2012). In circumstances where the deficient performance leads to the defendant's rejection or failure to accept a plea agreement a defendant must establish:

that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court . . ., that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer's terms would have been less severe than under the judgment and sentence that in fact were imposed.

Id. at 164. Petitioner has not made and cannot make that showing.

         As an initial matter, the prosecution fully disclosed the terms of the proffer to Laird, undercutting Laird's claim that defense counsel's error-not his failure to follow the ground rules of the proffer agreement-caused him to lose the benefit of a plea bargain. The proffer agreement clearly states:

Any and all statements made by your client, or information provided by your client, during the ‘off-the-record' proffer or discussion will be truthful; and your client will not withhold any material or requested information to protect himself, a third party, or for any other reason. He will be expected to tell all he knows about any criminal activity in which he has participated or of which he has information and knowledge.

(Case No. 1:13-cr-26, ECF No. 307, PageID.1951). The agreement further stated that the prosecution would contact Ms. O'Briant after evaluating the information “concerning whether or not an agreement can be reached and what concessions or recommendations, if any, the United States Attorney for the Western District of Michigan would be willing to make on your client's behalf.” (Id. at PageID.1952). Finally, the agreement stated that Petitioner should only sign the letter “if . . . [he] wishes to engage in an “off-the-record “ proffer or discussion under the[] ground rules” mentioned above. Id. Laird, Ms. O'Briant, and ...

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