USA v. Eckles et al

On August 11, 2008, Petitioner filed a form-Motion to Vacate, merely	1
outlining two proposed claims, and she filed a Motion for Extension of time
seeking additional time to submit a supporting memorandum for her claims.
(Case No. 5:08CV94-V, document ## 1 and 2). However, this Court determined
both that Petitioner mistakenly had calculated her one-year limitations
deadline as having expired on July 30, 2008, and that such period would not
expire until October 28, 2008; therefore, the Court entered an Order dismiss-
ing the Motion to Vacate without prejudice to Petitioner’s right to re-file a
complete § 2255 motion before the deadline. (Case No. 5:08CV94, document #
3). Such Order also dismissed as moot Petitioner’s Motion for an Extension of
Time. Although Petitioner timely attempted to re-file her §2255 Motion and
Memorandum by placing those documents in a correctly addressed envelope and
delivering it to prison officials for mailing to this Court, the United States
Postal Service inexplicably delivered the envelope to a North Carolina Court.
As such, the envelope was returned to Petitioner, thereby requiring her to re-
send it to this Court. In any case, Petitioner has met her obligation under
the “mailbox rule” announced in Houston v. Lack, 487 U.S. 266 (1988); there-
fore, her Motion to Vacate will be deemed timely filed. Additionally, because
Petitioner’s Motion was accompanied on its extended journey to this Court by
her supporting Memorandum, she will not be required to secure leave of this
Court in order to file that Memorandum.
1
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
5:08CV140-V-2
(5:05CR9-16-V)
KENYA LASHAN MARTIN, )
)
Petitioner, )
)
v. ) O R D E R
)
UNITED STATES OF AMERICA, )
)
Respondent. )
______________________________)
THIS MATTER is before the Court on initial review of Peti-
tioner’s Motion to Vacate, Set Aside, or Correct Sentence under
28 U.S.C. §2255 and on her Motion for Extension of Time to file a
supporting memorandum, both filed November 21, 2008 (Document ##	1
1 and 2). For the reasons stated herein, Petitioner’s Motion for
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2
an Extension of Time will be dismissed as moot; and her Motion to
Vacate will be denied and dismissed.
I. FACTUAL AND PROCEDURAL HISTORY
On July 25, 2005, a Second Superceding Bill of Indictment
was filed charging Petitioner and 36 other individuals with
numerous drug trafficking and/or firearms offenses. (Case No.
5:05CR9-16, document # 265). In particular, Petitioner was
charged with conspiring to possess with intent to distribute 50
grams or more of cocaine base, 5 kilograms or more of powder
cocaine and 1,000 kilograms or more of marijuana, all in viola-
tion of 21 U.S.C. § 846 (Count One); and she was charged with
three separate counts of possessing cocaine base with intent to
distribute that drug, in violation of 21 U.S.C. § 841 (Counts
Eight through Ten).
On March 1, 2006, Petitioner appeared before the Court to
tender guilty pleas to the four charges she was facing. On that
occasion, the Court engaged Petitioner in its standard, lengthy
colloquy to ensure that she voluntarily and intelligently was
tendering her pleas. After being placed under oath, Petitioner
made statements which establish that she understood the nature of
the proceeding, the charges she was facing and their correspond-
ing penalties. Petitioner’s answers further establish that she
had discussed those matters and her rights to proceed to trial
with her attorney; that she was voluntarily waiving those rights;
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that she was tendering “straight-up” guilty pleas to the four
charges because she, in fact, was guilty of those matters; and
that she was satisfied with counsel’s services. Also, as to the
amount of drugs for which Petitioner was taking responsibility,
defense counsel advised the Court that she “acknowledge[d] that
she exceeds the level which would kick in the ten year minimum.”
(Plea and Rule 11 Tr., filed Feb. 14, 2008, 37). Accordingly, at
the conclusion of that proceeding, the Court determined that
Petitioner freely and knowingly was entering her guilty pleas,
and the Court accepted the pleas. (Case No. 5:05CR9-16, document
# 487: Entry and Acceptance of Guilty Plea form).
On December 18, 2006, the Court conducted Petitioner’s
Factual Basis and Sentencing Hearing. At the outset of that pro-
ceeding, Petitioner reaffirmed her earlier answers to the Court’s
questions, namely that she understood the nature of the charges
and penalties, she pled guilty freely and voluntarily, she com-
mitted the subject offenses, and she was “fully satisfied” with
the services of her attorney. (Sent’g. Tr., filed Feb. 28, 2007,
2-3). After hearing those answers, the Court reaffirmed its
acceptance of Petitioner’s guilty pleas. (Sent’g. Tr. 3).
Thereafter, defense counsel objected to the Pre-Sentence
Report’s recommendation that Petitioner be sentenced on the basis
of involvement with 112 ounces of cocaine base -- that is, the
full amount of cocaine base which was sold to co-conspirator
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Anthony Brown by Petitioner and her lover, Brendon Steele, and to
its recommendation that Petitioner be subject to a firearm
enhancement. (Sent’g. Tr. 4).
According to the Pre-Sentence Report, Petitioner was part of
a large-scale drug conspiracy involving hundreds of kilograms of
cocaine and cocaine base and hundreds of pounds of marijuana.
(Report dated July 27, 2006, 6). The conspiracy began in 1999,
and primarily was led by Richard Eckles who operated the group in
Harmony, North Carolina. Id.
Petitioner became involved in the conspiracy through her
relationship with Brendon Steele, beginning in early 2000. (Id.
at 9). Between 2000 and October 2004, Petitioner and Steele
lived together and used Petitioner’s home as a drug processing
and distribution center. (Id.). Brown admitted that during the
relevant period, he daily made purchases from Steele and Peti-
tioner, totaling about ½ ounce of crack cocaine per week. (Id.).
Brown told authorities that he dealt directly with Petitioner on
20% of those occasions; that he saw Steele in possession of fire-
arms at Petitioner’s residence; and that he saw Petitioner and
Steele trade cocaine base for stolen property, such as guns and
other items. (Id.).
The Report further indicates that Melissa Swaim bought co-
caine base from Steele at Petitioner’s residence from around 1999
up to 2003, receiving 1/8 of an ounce of crack on each transac-
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tion. (Id.). Swaim told authorities that Steele used Petition-
er’s home to distribute his drugs; that Petitioner also sold
drugs to Swaim when Steele was unavailable; and that Petitioner
increased her drug sales to Swaim after another co-conspirator
was sent to prison in 2003. (Id.).
Last, the Report states that investigators made several un-
dercover drug purchases from Petitioner through an informant from
July through December 2004; that the sales took place at Peti-
tioner’s residence; and that on one occasion, Petitioner quoted
the informant a price for a full ounce of cocaine base. (Id. at
10).
However, defense counsel argued that the evidence upon which
the Report relied established that Petitioner directly was in-
volved with only 20% of the drugs which were sold to Brown; that
the sales which Petitioner made to the confidential informant in-
volved only about eight rocks of cocaine base; that only Brown
had indicated that there were firearms in Petitioner’s home; and
that Brown’s information identified Steele as the one who posses-
sed the guns. (Sent’g. Tr. 4-6).
In rebuttal, the Government presented the testimony of Lieu-
tenant David Ramsey from the Iredell County Sheriff’s Department.
(Sent’g. Tr. 6-7). Sheriff Ramsey’s testimony essentially
mirrored the information from Petitioner’s Pre-sentence Report,
namely that: (1) Petitioner and Steele were paramours who perio-
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dically shared a residence between early 2000 and October 2004;
(2) such residence served as a base of operation for on-going
drug trafficking activities, including the cooking and distribu-
tion of cocaine base; (3) between 2000 and 2004, Brown purchased
about ½ ounce of crack cocaine per week from Steele and/or Peti-
tioner, with his deals with Petitioner accounting for 20% of
those transactions; and (4) between 1999 and 2003, Swaim made
regular purchases of 1/8 ounce-sized packages of cocaine base
from both Steele and Petitioner at Petitioner’s home. (Sent’g.
Tr. 8-11).
In addition, however, Ramsey testified that: (1) quantities
of crack cocaine routinely were maintained at Petitioner’s home
during the course of the conspiracy; (2) both Anthony Brown and
Brendon Steele, himself, told authorities that firearms were kept
at Petitioner’s home; and (3) as many as five of Petitioner’s
other co-conspirators also identified her as a member of the
conspiracy. (Sent’g. Tr. 8-11). On cross-examination, Ramsey
testified that Brown reluctantly had admitted to having broken
into Petitioner’s home to rob a safe where he expected to find
ounces of cocaine, but he actually found only “an eight-ball and
a quarter ounce” of cocaine. (Sent’g. Tr. 11-12).
In summation, defense counsel asserted that Steele was not
Petitioner’s live-in boyfriend, but merely a lover with whom she
had become involved after her husband was incarcerated and she
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found herself unable to support herself and her child. (Sent’g.
Tr. 13). Counsel further asserted that Petitioner lived next
door to the primary members of the conspiracy; that she had be-
come minimally involved in the conspiracy in order to support her
family; that she did not acquire “any real assets” from her
activities; and that Petitioner was a good mother. (Sent’g. Tr.
13-16). Consequently, defense counsel argued that Petitioner
should not be held accountable for the entire 112 ounces of crack
which were sold to Brown. (Sent’g. Tr. 16).
Nevertheless, after considering all of the information, the
Court overruled Petitioner’s objections, finding that she “was
involved with at least one and a half kilos of crack. That is,
that she either handled it or it was foreseeable to her based on
the preponderance of the evidence as presented by the agent and
the Pre-Sentence Report.” (Sent’g. Tr. 16). The Court then
affirmed the Pre-Ssentence Report’s calculations, including its
recommendation that Petitioner receive a two-level enhancement
for Steele’s possession of firearms at her home and/or for Steele
and Petitioner’s having traded drugs for weapons. (Sent’g. Tr.
16). Thus, the Court concluded that Petitioner’s adjusted of-
fense level was 37 and her criminal history category was II, with
a resulting range of imprisonment of 235 to 293 months. (Sent’g.
Tr. 16-17). Ultimately, the Court sentenced Petitioner to a term
of 235 months imprisonment. (Sent’g. Tr. 17). The Court’s Judg-
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ment was filed January 9, 2007. (Case No. 5:05CR9-16, document #
668).
Petitioner timely appealed to the Fourth Circuit Court of
Appeals. (Case No. 5:05CR9-16, document # 662). There, Peti-
tioner argued that this Court erred in holding her accountable
for the entire amount of drugs which were sold to Anthony Brown
because Brown bought drugs directly from her only 20% of the
time. United States v. Martin, 235 Fed. App’x 87, 88 (4th Cir.
July 30, 2007). However, the appellate Court held, in reliance
upon United States v. Fullilove, 388 F.3d 104, 106 (4th Cir.
2004), that this Court “did not clearly err in attributing more
than 1.5 kilograms of crack to [Petitioner].” Id. at 88. The
Fullilove case generally reinforces the Sentencing Guidelines’
position that a defendant is accountable under relevant conduct
principles for “all acts and omissions committed, aided, abetted,
counseled, commanded, induced, procured, or willfully caused” by
him. Fullilove, 388 F.3d at 106-07, quoting U.S. Sentencing
Guidelines § 1B1.3(a)(1)(A). In other words, the Fourth Circuit
implicitly determined that Petitioner was responsible for the
full amount of drugs sold to Brown because that amount reasonably
was foreseeable to her. Consequently, Petitioner’s sentence was
affirmed. Martin, 235 Fed. App’x at 88.
Now, Petitioner has returned to this Court on the instant
Motion to Vacate, arguing that her attorney was ineffective for
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In addition, Petitioner cites Watson v. United States, 128 S. Ct. 579,	2
586 (2007) (holding that the trading of drugs for a gun does not satisfy the
“use” element of 18 U.S.C. § 924(c)); Blakely v. Washington, 542 U.S. 296, 303
(2004) (holding that for purposes of Apprendi, the statutory maximum term to
which a defendant can be exposed is the “maximum sentence the judge may impose
solely on the basis of the facts reflected in the jury verdict or admitted by
the defendant.”); and United States v. Winston, 37 F.3d 235 (6th Cir. 1994)
9
having failed to prevent her from being sentenced for the entire
112 ounces of crack; and that her sentence was imposed in viola-
ion of Sentencing Guidelines Amendment 715, United States v.
Booker, 543 U.S. 220 (2005), and certain other precedent.
II. ANALYSIS
Pursuant to Rule 4(b) of the Rules Governing Section 2255
Proceedings, sentencing courts are directed promptly to examine
motions to vacate, along with “any attached exhibits and the
record of prior proceedings . . .” in order to determine whether
a petitioner is entitled to any relief. The Court has conducted
such a review and determined that Petitioner is not entitled to
any relief on his claims; thus, neither a response from the
government nor a hearing is required in this matter.
A. Petitioner’s challenge to her sen-
tence is not cognizable.
Taking them out of turn, by her second claim, Petitioner es-
sentially is claiming that her sentence is erroneous because
Sentencing Guidelines Amendment 715 changed the method by which
this Court must determine her combined offense level under §
2D1.1(D), and because the holdings from Kimbrough v. United
States, 128 S.Ct. 558(2007) and certain other decisions now	2
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(vacating a life sentence imposed under 21 U.S.C. § 841(b)(1)(B) and finding
that such statute imposes enhanced sentences for single violations involving
at least 50 grams of crack, not for several violations involving less than
that amount individually but totaling 50 grams or more when added together).
10
require this Court to calculate her sentence in a manner which
reduces the disparity between powder and crack cocaine sentences.
However, this claim must fail.
First, Petitioner is correct that Amendment 715, which took
effect on May 1, 2008, modifies the commentary to § 2D1.1 of the
Guidelines so as to revise the manner in which combined offense
levels are determined for convictions involving cocaine base and
one or more other drugs. Chiefly, the Amendment permits a two-
point offense level reduction for such calculations. Further,
because Amendment 715 is listed in U.S. Sentencing Guidelines §
1B1.10(c), defendants who are affected by it can request retro-
active application of the provision to their cases.
However, the proper means by which to seek a post-conviction
application of the Amendment is by motion under 18 U.S.C. § 3582-
(c), which provision grants district courts authority to reduce
sentences pursuant to retroactively applicable amendments to the
Sentencing Guidelines. Indeed, Petitioner has failed to point to
a single case which stands for the proposition that district
courts are authorized to apply Amendment 715 in a collateral con-
text such as this one. Nor has this Court’s independent research
disclosed any such precedent. Therefore, Petitioner’s claim for
a reduced sentence under Amendment 715 is not cognizable in this
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proceeding and must be brought pursuant to a motion for re-
sentencing under 18 U.S.C. § 3582(c).
Similarly, although Kimbrough stands for the proposition
that sentencing courts may, in their discretion, craft sentences
in a way that takes into consideration the disparate punishment
for cocaine base and powder cocaine offenses, the Supreme Court
in Kimbrough did not state that its holding was to be retroac-
tively applied in the collateral review context. See Kimbrough,
supra; see also United States v. Lackey, 2008 WL 4133297, slip
op. at 1 (M.D. Pa Sept. 3, 2008) (finding that Kimbrough “does
not apply retroactively on collateral review.”). Nor did the
High Court state that Watson -- which is inapplicable here since
Petitioner was not convicted under § 924(c) –- retroactively can
be applied on collateral review. Consequently, the holdings from
these two cases do not entitle Petitioner to any relief.
Furthermore, to the extent that Petitioner already directly
has challenged her sentence on appeal, she now is procedurally
barred from attempting to revisit that claim pursuant to the
holding from Blakely. Indeed, Petitioner’s earlier challenge to
the calculation of her sentence likely stands as a procedural bar
to her ability to re-litigate that matter. See Davis v. United
States, 417 U.S. 333, 342 (1974) (in the absence of a favorable,
intervening change in the law which can be applied on collateral
review, a petitioner simply is not free to re-litigate claims
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which already were rejected on direct review); Boeckenhaupt v.
United States, 537 F.2d 1182 (4 Cir. 1976) (same).	th
Or, in the alternative, Petitioner’s failure on appeal to
challenge her convictions and/or sentences under Blakely and the
Sixth Circuit’s opinion in Winston, constitutes a procedural de-
fault of those arguments, which default she has not even attempt-
ed to overcome. See United States v. Mikalajunas, 186 F.3d 490,
492-93 (4 Cir. 1999) (“[i]n order to collaterally attack a con-	th
viction or sentence based upon errors that could have been but
were not pursued on direct appeal, the movant must show cause and
actual prejudice resulting from the errors of which he com-
plains[,] or he must demonstrate that a miscarriage of justice
would result from the refusal of the court to entertain the col-
lateral attack”); United States v. Frady, 456 U.S. 152 (1982)
(same); see also Bousley v. United States, 523 U.S. 614, 621
(1998) (failure to challenge matter on direct appeal, absent
certain compelling circumstances, bars collateral review of
same). In sum, therefore, Petitioner’s second claim must be
rejected in its entirety.
2. Petitioner’s claim against counsel
also must fail.
By her other claim, Petitioner alleges that counsel was in-
effective for having failed to prevent her from being sentenced
on the basis of the entire 112 ounces of cocaine base which was
sold to Anthony Brown by her and Brendon Steele. In support of
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this claim, Petitioner first points to her co-conspirator/co-
defendant White, whose attorney limited her role by stipulating
to involvement with 50 to 150 grams of cocaine base, and she
points to Defendant Dalton, whose attorney preserved his right to
a jury determination of the relevant drug amount for him. Peti-
tioner suggests that her attorney should have taken one of those
two approaches in order to protect her from being sentenced for
involvement with 112 ounces. Second, Petitioner reiterates a
portion of her appellate argument in that she contends counsel
was ineffective for having allowed her to be sentenced on the
basis of the full 112 ounces when she was involved with only 20%
of those sales to Brown.
With respect to claims of ineffective assistance of counsel,
Petitioner must show that counsel's performance was constitution-
ally deficient to the extent it fell below an objective standard
of reasonableness, and that he was prejudiced thereby. Strick-
land v. Washington, 466 U.S. 668, 687-91 (1984). In making this
determination, there is a strong presumption that counsel's con-
duct was within the wide range of reasonable professional
assistance. Id. at 689; see also Fields v. Attorney Gen. of Md.,
956 F.2d 1290, 1297-99 (4th Cir. 1985); Hutchins v. Garrison, 724
F.2d 1425, 1430-31 (4th Cir. 1983); and Marzullo v. Maryland, 561
F.2d 540 (4th Cir. 1977).
Under these circumstances, Petitioner “bears the burden of
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proving Strickland prejudice.” Fields, 956 F.2d at 1297, citing
Hutchins, 724 F.2d at 1430-31. If Petitioner fails to meet this
burden, a “reviewing court need not consider the performance
prong.” Fields, 956 F.2d at 1290, citing Strickland, 466 U.S. at
697. Moreover, in considering the prejudice prong of the analy-
sis, the Court must not grant relief solely because Petitioner
can show that, but for counsel’s performance, the outcome of the
proceeding would have been different. Sexton v. French, 163 F.3d
874, 882 (4 Cir. 1998). Rather, the Court “can only grant	th
relief under . . . Strickland if the ‘result of the proceeding
was fundamentally unfair or unreliable.’” Id., quoting Lockhart
v. Fretwell, 506 U.S. 364, 369 (1993).
More critically, inasmuch as Petitioner has alleged ineffec-
tive assistance of counsel following the entry of her guilty
plea, she has a different burden to meet. See Hill v. Lockhart,
474 U.S. at 53-59; Fields, 956 F.2d at 1294-99; and Hooper v.
Garraghty, 845 F.2d 471, 475 (4th Cir. 1988). The Fourth Circuit
described a petitioner’s burden in a post-guilty plea claim of
ineffective assistance of counsel as follows:
When a [petitioner] challenges a conviction
entered after a guilty plea, [the] “prejudice
prong of the [Strickland] test is slightly
modified. Such a defendant must show that
there is a reasonable probability that, but
for counsel’s errors, he would not have
pleaded guilty and would have insisted on
going to trial.”
Hooper, 845 F.2d at 475 (emphasis added); accord Hill v. Lock-
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hart, 474 U.S. at 59-60; and Fields, 956 F.2d at 1297. Criti-
cally, however, if a petitioner fails to meet his burden of
demonstrating prejudice, a “reviewing court need not consider the
performance prong.” Fields, 956 F.2d at 1290, citing Strickland,
466 U.S. at 697.
In evaluating post-guilty plea claims of ineffective assis-
tance, statements previously made under oath, particularly those
made during a Rule 11 proceeding which affirm an understanding of
the proceedings and satisfaction with counsel, are deemed binding
in the absence of “clear and convincing evidence to the contra-
ry.” Fields, 956 F.2d at 1299, citing Blackledge v. Allison, 431
U.S. 63, 74-75 (1977). Indeed, such statements “constitute a
formidable barrier” to their subsequent attack. Blackledge, 431
U.S. at 73-74. In short, once a trial court conducts a Rule 11
colloquy and finds that the plea is being knowingly and volun-
tarily tendered, absent compelling reasons to the contrary, the
validity of the plea and the petitioner’s corresponding responses
are deemed to be conclusively established. Via v. Superinten-
dent, Powhatan Correctional Center, 643 F.2d 167 (4 Cir. 1981).	th
In the instant case, Petitioner complains that counsel
should have negotiated a structured plea agreement for her, ei-
ther containing a stipulation to involvement with a lower drug
amount, or reserving her right to a jury trial on the question of
drug quantity. Such negotiations, however, necessarily would
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have taken place prior to the time that Petitioner entered her
guilty pleas. Notwithstanding the absence of such an agreement,
Petitioner still chose to plead guilty, and she even told the
Court that she was satisfied with counsel’s services on two
separate occasions.
In this case, therefore, the well-settled principle of waiv-
er is applicable to this allegation. That is, the law is clear
that a “voluntary and intelligent guilty plea forecloses federal
collateral review of allegations of antecedent constitutional
deprivations,” Fields, 956 F.2d at 1294, citing Tollett v.
Henderson, 411 U.S. 258, 266-67 (1973). Therefore, Petitioner’s
argument that counsel was ineffective for having failed to engage
in certain pre-plea negotiations must fail.
Furthermore, Petitioner’s argument that counsel was ineffec-
tive for failing to protect her from being sentenced for more
than 20% of the cocaine base which was sold to Brown also must be
rejected. To be sure, the Court of Appeals already has upheld
this Court’s determination that the principles of reasonable
foreseeability subjected Petitioner to sentencing for the drugs
which both she and her lover (Steele) sold to Brown. See Martin,
235 Fed. App’x at 88. Thus, Petitioner is procedurally barred
from re-litigating that matter.
Nor can Petitioner prevail on her argument that counsel
should have done more to clarify for the Court that Steele also
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sold cocaine base from a location other than her home; therefore,
she should not have been held accountable for all of the drugs
which Steele sold. Rather, the record clearly shows that the
112-ounce total which was used to calculate Petitioner’s sentence
is the total amount of cocaine base which Brown admitted to hav-
ing purchased from Steele and Petitioner in Petitioner’s home.
Thus, even if Steele made additional sales of cocaine base to
Brown from another location, such additional sales were not at-
tributed to Petitioner. Thus, Petitioner cannot establish that
she was prejudiced by counsel’s handling of the subject
information.
III. CONCLUSION
The Court has considered Petitioner’s Motion, the entire
record of this matter and the relevant legal precedent, and has
found that Petitioner is not entitled to any relief on her claims
as stated in this Motion to Vacate.
IV. ORDER
IT IS, THEREFORE, ORDERED THAT:
1. Petitioner’s Motion for Extension of Time is DISMISSED
as moot; and
2. Petitioner’s Motion to Vacate, Set Aside, or Correct
Sentence is DENIED and DISMISSED.
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SO ORDERED.
Signed: January 21, 2009
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