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United States v. Curry

United States District Court, W.D. Oklahoma

December 10, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
DONNY DESHON CURRY, Defendant.

          ORDER

          DAVID L. RUSSELL UNITED STATES DISTRICT JUDGE

         Before the Court is the Motion to Vacate filed by Defendant Donny Deshon Curry (Doc. No. 82). The United States responded in opposition to the motion and Defendant filed a Reply in support of his motion.[1] Upon consideration of the parties' submission, the Court finds as follows.

         28 U.S.C. § 2255 (2012) provides that prisoners in federal custody may challenge their sentences if: (1) the sentence was imposed in violation of the United States Constitution or federal law; (2) the sentencing court had no jurisdiction to impose the sentence; (3) the sentence exceeded the maximum authorized sentence; or (4) the sentence is otherwise subject to collateral review. § 2255(a). Relief is available under Section 2255 only if “the claimed error constituted a fundamental defect which inherently results in a complete miscarriage of justice.” United States v. Addonizio, 442 U.S. 178, 185 (1979) (internal quotation marks and citation omitted). The Court must presume “that the proceedings leading to the conviction were correct, ” and the burden is on the movant to demonstrate otherwise. Klein v. United States, 880 F.2d 250, 253 (10th Cir. 1989). The Court must hold an evidentiary hearing unless the motion, files, and records conclusively show that the prisoner is not entitled to relief. United States v. Galloway, 56 F.3d 1239, 1240 n.1 (10th Cir. 1995).

         On October 27, 2016, Defendant pled guilty to Count 3 of a Superseding Indictment charging him with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He was sentenced on April 10, 2017 to 188 months imprisonment based in part on his status as an Armed Career Criminal under the enhanced penalty provision set forth in 18 U.S.C. § 924(e)(1). An attempt at appeal was dismissed because of the appellate waiver contained in his Plea Agreement.[2] Defendant files the instant Motion to Vacate, asserting six grounds for relief, each of which relies on the alleged ineffective assistance of counsel: (1) his counsel permitted him to plead guilty without ensuring that he understood the severity of pleading guilty in light of the potential for the Armed Career Criminal enhancement; (2) that counsel's arguments in support of the suppression of evidence were not well developed; (3) counsel failed to object to the PSR and to the Court's decision to treat two drug counts from the same criminal case as separate offenses in support of the ACCA enhancement[3]; (4) counsel failed to object when the Government breached the plea agreement by failing to follow through on the promise of sentencing him within the statutory range of punishment, that is not more than ten years;[4] (5) appellate counsel failed to raise an issue in her initial response to the motion by the United States to enforce the appellate waiver resulting in loss of the issue; and (6) his plea was not knowing and voluntary because of counsel's errors.

         To establish ineffective assistance of counsel, Defendant must fulfill the familiar two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 694 (1984). He must establish both that counsel's performance was deficient and that this deficiency prejudiced him. See Smith v. Duckworth, 824 F.3d 1233, 1249 (10th Cir. 2016). To demonstrate prejudice, Defendant “must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. The Court may consider the two prongs in any order, see id. at 697; an insufficient showing on either one is fatal to an ineffective-assistance claim, see id. at 700. A court considering a claim of ineffective assistance of appellate counsel for failure to raise an issue is required to look to the merits of the omitted issue. Where the omitted issues are meritless, counsel's failure to raise them on appeal does not constitute constitutionally ineffective assistance of counsel. Hooks v. Ward, 184 F.2d 1206, 1221 (10th Cir.1999), see also, Smith v. Robbins, 528 U.S. 259, 288 (2000).

         Defendant first argues his counsel was constitutionally ineffective at sentencing because he failed to object to use of two of his prior convictions, Assault with a Dangerous Weapon and Robbery with a Firearm, to support application of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), enhancement.[5] He further complains that counsel failed to object to the Court's use of two prior drug convictions stemming from a single case before the Honorable Judge Stephen P. Friot, as separate predicate offenses for the ACCA enhancement.

The offense of conviction is a violation of 18 U.S.C. § 922(g), and the defendant has two prior violent felony convictions (Robbery with Firearms, CF-1196-3025; Assault with a Dangerous Weapon, JF-1993-1812) and two prior serious drug offenses (Distribution of Cocaine, CR-06-297, Counts 1 and 2), which were committed on different occasions. Therefore, the defendant is an armed career criminal and subject to an enhanced sentence under the provisions of 18 U.S.C. § 924(e). Because the defendant also possessed a firearm and ammunition in connection with another felony offense, that offense being Possession of Marijuana with Intent to Distribute, the offense level [is] 34. . . USSG § 4B1.4(b)(3)(A).
Pre-sentence Investigation Report (Doc. No. 46, ¶ 25).

         To the extent Defendant argues that counsel failed to object to the consideration of his assault with a deadly weapon and robbery with a firearm convictions being used for purposes of enhancement under the ACCA, his position is not supported by the record. In the Final Presentence Investigation Report, the probation officer noted the objection to relying on each of these prior convictions and concluded the objections were unfounded. In light of the objections to the presentence report, the Court addressed the use of the prior convictions at sentencing and reached the same conclusion as the probation officer.[6] The Court addressed the issue at sentencing in light of the objection, concluding (that the objection to paragraph 35 of the presentence report was unfounded. (Doc. No. 58, p. 7). Similarly, and contrary to Defendant's assertion, counsel did object to the robbery with a firearm being used to support the ACCA enhancement, an objection the Court overruled. Id.

         With regard to Defendant's prior drug convictions being used to support the ACCA enhancement, counsel did object to the Court using both counts from a single criminal case as separate convictions to support the enhancement. That the two counts were from the same underlying criminal case is not dispositive. Two offenses are “committed on occasions different from one another” when they are “committed at distinct, different times.” United States v. Johnson, 130 F.3d 1420, 1431 (10th Cir. 1997) (internal quotation marks and citations omitted). If the defendant decided to continue with a criminal course of conduct after “a meaningful opportunity” to stop, the crimes will be considered distinct. United States v. Delossantos, 680 F.3d 1217, 1220 (10th Cir. 2012). In overruling counsel's objection, the Court applied the above law and concluded that the two drug counts in Case No. CR-06-297-F were committed on two occasions in light of the standard set forth above. (Doc.No. 58, p. 6-7). Defendant's contention that counsel failed to object is without merit.

         Defendant contends that counsel failed to adequately explain the ACCA enhancement and should have asked for additional time to explain the potential enhancement prior to entering his plea of guilty. The Court disagrees that counsel's performance was constitutionally inadequate. At the plea hearing, the Court informed Defendant that, if the Court determined at sentencing that his criminal history fit the Armed Career Criminal statute, he would have to file a § 2255 to challenge that finding rather than seeking relief on appeal. The Defendant indicated to the Court that he had no questions about the process. (Doc. No. 64, p. 11).[7] Defendant has failed to establish that counsel's performance was deficient and therefore is not entitled to § 2255 relief on Claim 1 of the instant motion.

         In Claim 2, Defendant argues counsel was constitutionally ineffective because the “Motion to Suppress was not on course to allow the court to grant the petitioner's Motion to Suppress.” (Doc.No. 83, p. 15). On August 29, 2016, counsel filed a Motion to Suppress on behalf of Mr. Curry. The Court set the motion for hearing after receiving the Government's response thereto. Following argument at the October 17, 2016 hearing, the Court denied the motion. Defendant contends counsel's efforts in seeking the suppression of the evidence were sub-par and that counsel should have allowed him to “pull the plea” because he would then have been able to appeal denial of the motion to suppress.[8]

         Defendant entered an unconditional plea of guilty and, as indicated in his plea colloquy and plea papers, he was aware of his appellate waiver. His attorney argued at the motion to suppress hearing that police officers waited too long to search the residence in question, fifteen days after the original incident that led to issuance of a warrant. He further argued that the items listed in the warrant were subterfuge to permit officers to search for items related to Mr. Curry, although his ties to the home were tenuous and that the warrant was stale.[9] Although Defendant is correct that he could not appeal the denial of the motion to suppress, this was the result of Defendant's decision to enter an unconditional plea of guilty. See, e.g., United States v. Adigun, 703 F.3d 1014, 1022 (7th Cir. 2012) (holding defendant's unconditional “open” plea to drug charges was not a conditional plea under Rule 11(a)(2), so defendant was barred from appealing district court's rulings on defendant's pre-plea suppression motions). Defendant stated on the record at his plea hearing that he made the decision to plead guilty. Once a defendant has entered a plea of guilty, he may not raise subsequent claims regarding the deprivation of his constitutional rights occurring before the plea. Although Fed. R. Crim. P. 11(a)(2) allows a defendant to enter a conditional guilty plea “reserving in writing the right to have an appellate court review an adverse determination of a specified pretrial motion” Defendant does not indicate that he requested such a plea, nor is there evidence that such a request would have been granted as is required for a conditional plea. Finally, at the hearing on his change of plea, Mr. Curry indicated that he was aware that with limited exception he was waiving his right to appeal and he had no questions, although counsel raised the ACCA enhancement which the Court addressed as set forth above. Defendant has failed to establish that counsel's performance was deficient with regard to the motion to suppress.

         As his third ground for relief under § 2255, Defendant argues that counsel was ineffective because he failed to challenge the Court's use of two counts from the same criminal case, CR-06-297-F, as separate predicate offenses for the ACCA enhancement. (Doc.No. 83, p. 21). However, counsel did raise the issue and this Court was aware that both drug offenses were part of the same underlying case and that Mr. Curry was arrested one time and charged with both counts. As noted at sentencing, however, the distribution counts were premised on separate drug transactions on different days. In Count One of the Indictment in CR-06-297-F, Defendant was charged with distribution of cocaine base on January 31, 2006 in violation of 21 U.S.C. § 841(a)(1). Count 2, which charged another count of distribution of cocaine base under § 841(a)(1) was predicated on behavior occurring a week later, February 7, 2006. Furthermore, the Court found that Defendant had a meaningful opportunity to cease engaging in criminal activity between the two sales of crack cocaine to undercover officers. Finally, to the extent Defendant relies on the language in U.S.S.G. § 4A1.2, that provision of the sentencing guidelines is not relevant in the ACCA context. United States v. Harris, 643 Fed.Appx. 734, 737 (10th Cir. 2016) (“However, in United States v. Delossantos, 680 F.3d 1217 (10th Cir.2012), we observed that § 4A1.2 is irrelevant in the ACCA context. Delossantos, 680 F.3d at 1220-21 n. 3.”). Defendant has failed to establish that counsel was constitutionally ineffective with regard to the treatment of his prior drug convictions as predicate offenses under ACCA.

         Defendant further contends counsel was ineffective in how he objected to the Government's reliance on two prior convictions as crimes of violence in support of the ACCA enhancement. As noted above, defense counsel did object. Furthermore, any additional objections would have been futile, because at least one of the convictions, robbery with a firearm in violation of Okla. Stat. tit. 21 § 801 is indisputably a violent felony under Tenth Circuit authority.

         For the government to prevail, Defendant's status under Okla. Stat. tit. 21 § 801 must qualify under § 924(e)(2)(B)'s elements clause, which requires that the conviction “ha[ve] as an element the use, attempted use, or threatened use of ...


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