United States District Court, W.D. Virginia, Charlottesville Division
NORMAN K. MOON, District Judge.
Petitioner Rodney Wayne Barnes, a federal inmate proceeding pro se, filed this motion to vacate, set aside, or correct sentence, pursuant to 28 U.S.C. § 2255, challenging his 264-month sentence for conspiring to distribute cocaine base, heroin, and cocaine hydrochloride, as well as conspiring to commit money laundering. Barnes alleges violations of his right to due process and that counsel provided ineffective assistance. The United States has filed a motion to dismiss, and Barnes has responded, making this matter ripe for consideration. I first note that Barnes waived his right to collaterally attack his sentence and that the record of the Rule 11 plea colloquy reflects that this waiver was knowing and voluntary. Accordingly, I conclude that Barnes has waived his right to collaterally attack his sentence on the grounds of a violation of his Fifth Amendment right to due process. Furthermore, I conclude that Barnes has failed to demonstrate that he was prejudiced by counsel's allegedly deficient performance. Therefore, I will grant the government's motion to dismiss.
On October 13, 2010, Barnes and seven co-defendants were charged in a five count superseding indictment handed down by a federal jury sitting in Charlottesville, Virginia. Count One alleged that, between June 2009 and July 2010, Barnes conspired to distribute 50 grams or more of cocaine base, at least 100 grams of heroin, and 500 grams or more of a detectable amount of cocaine hydrochloride, in violation of 21 U.S.C. § 846. Count Two alleged that, between June 2009 and July 2010, Barnes conspired to launder money in violation of 18 U.S.C. § 1956(h). Counts Three, Four, and Five alleged that, in June and July 2010, Barnes distributed a detectable amount of cocaine base, in violation of 21 U.S.C. § 841(a). On November 9, 2010, the United States Attorney's Office filed an enhancement pursuant to 21 U.S.C. § 851(a)(1), informing Barnes that he was subject to a higher statutory maximum term of imprisonment and greater maximum fine, due to his prior conviction for a felony drug offense.
On October 15, 2010, Barnes was arraigned, with counsel present, and pleaded not guilty to all charges. On March 2, 2011, a plea agreement was filed with the court pursuant to Rule 11 of the Federal Rules of Criminal Procedure, and was fully endorsed by Barnes, his counsel, and the Assistant United States Attorney. Pursuant to the agreement, Barnes pleaded guilty to Counts One and Two of the indictment. The plea agreement further provided that, at the sentencing hearing, the United States would move to dismiss the remaining counts, recommend a sentence within the applicable guideline range, and recommend a three level reduction for acceptance of responsibility.
On March 2, 2011, I conducted Barnes' plea hearing and found his plea to be knowing and voluntary. On August 31, 2011, I conducted Barnes' sentencing hearing, where Barnes was present with counsel. Barnes objected to the Presentence Investigation Report ("PSR") on the ground that the probation officer used an inaccurate method to calculate drug weight. Barnes argued that the probation officer's calculations resulted in the same drugs being "double or triple counted against Mr. Barnes." (Dkt. No. 306, at 3). By adding the drug weights for each co-defendant within the conspiracy, the probation officer calculated a total quantity of 7.4 kilograms of cocaine base (26, 450 kilograms of marijuana), 1.2 kilograms of heroin (1.2 kilograms of marijuana), and 1 kilogram of cocaine hydrocholoride (200 kilograms of marijuana). Thereafter, the probation officer determined that "understanding that some of the drug quantities may have involved several co-defendants and their drug weights calculated accordingly, " he attributed a total drug quantity of between 10, 000 kilograms and 30, 000 kilograms of marijuana. (Dkt. No. 293, at 8-9). In contrast, Barnes indicated that using the figures provided from co-defendants' proffers, he calculated "168 grams of crack, 168 grams of heroin, and 84 grams of powder" by one method (yielding an equivalency of 785 kilograms of marijuana), and "1, 207 grams of crack and 340 grams of heroin" by a different method (yielding an equivalency of 4, 650 kilograms of marijuana). (Dkt. No. 306, at 5).
Barnes also objected to the PSR regarding the ratio applied between crack and powder cocaine, and the proper mandatory minimum sentence. Barnes argued that when translating drug weight, the court should use a 1-to-1 ratio between crack and powder cocaine, and not an 18-to 1 ratio. (Dkt. No. 306, at 6). Barnes asked the court to adopt the minimum mandatory sentences contained in the Fair Sentencing Act, subjecting him to a 10-year minimum mandatory sentence, instead of a 20-year minimum mandatory sentence. (Dkt. No. 306, at 8).
The PSR calculated Barnes' base offense level as 36, with a criminal history category of IV. The PSR recommended a four level increase for his role as a leader in the conspiracy, and a three level decrease for acceptance of responsibility, resulting in a total offense level of 37. I overruled Barnes' objections to the PSR and adopted the PSR, but found the mandatory minimum sentence of imprisonment was ten years. (Dkt. No. 297). Based on a total offense level of 37 and a criminal history category of IV, the advisory guideline range of imprisonment was 292 to 365 months. U.S.S.G. Chapter 5, Part A. The government recommended a sentence of 292 months. I imposed a sentence of 264 months, consisting of 264 months on Count One, and 240 months on Count Two, served concurrently.
To state a claim for relief under § 2255, a petitioner must prove that one of the following occurred: (1) that his sentence was "imposed in violation of the Constitution or laws of the United States"; (2) that "the court was without jurisdiction to impose such a sentence"; or (3) that "the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255. Barnes bears the burden of proving grounds for a collateral attack by a preponderance of the evidence. Jacobs v. United States, 350 F.2d 571, 574 (4th Cir. 1965); Hall v. United States, 30 F.Supp.2d 883, 889 (E.D. Va. 1998).
Barnes claims in his § 2255 motion, as amended, that the district court relied on inaccurate drug weight information when determining his sentence, in violation of his Fifth Amendment right to due process. Barnes further claims that counsel provided ineffective assistance by (a) incorrectly advising him that his sentence would not be determined by drug weight; (b) failing to argue on direct appeal that the sentencing court used inaccurate information to calculate his final offense level; and (c) failing to properly advise Barnes regarding the government's ability to file a second 851 enhancement.
I conclude that Barnes has waived his right to collaterally attack his sentence on the grounds of a violation of his Fifth Amendment right to due process. Furthermore, I conclude that Barnes' ineffective assistance of counsel claims do not meet both the performance and prejudice prongs of Strickland v. Washington, ...