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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA N>R 1 j 'I!H:§
) Cterk, U.S. Disérictrt'a$r)d
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UNITED STATES OF AMERICA ) a p
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v. )
) Criminal No. 07-307
KEVlN D. AYERS, )
)
Defendant. )
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MEMORANDUM OPINION

Before the Court is defendant Kevin D. Ayers’s pro se Motion [44] to Vacate, Set iAside,
or Correct Sentence pursuant to 28 U.S.C. § 2255. Defendant’s Motion rests on two grounds:
ineffective assistance of counsel regarding his decision to plead guilty and an unreasonable
sentence in violation of his due process rights. Defendant asks the Court to vacate his plea, or in
the alternative, to vacate his sentence. Upon consideration of the Motion [44], the entire record
herein, and the applicable law, defendant’s Motion will be DENIED.

l. BACKGROUND
A. Defendant’s Underlying Offenses

In 2006, police officers arrested defendant after recognizing him as a suspect with an
outstanding warrant. Presentence lnvestigation Report ("PSR") 11 ll. ECF No. 36, rev. June 26,
2009. Apparently there was a "brief struggle" between defendant and the officers before the
arrest. Ia’. During processing at the police station, an inventory of defendant’s possessions
produced a car key to an Enterprise rental car. Id. 11 l2. The officers located the rental car and,
upon peering through the car’s windows, saw in plain view a clear plastic bag containing what

appeared to be cocaine base. Id. 1[ l3. A lab subsequently confirmed that the substance found in

the car was 71.5 grams of cocaine base. Id. 11 l4. A search of the Enterprise rental car produced
approximately $600 and a driver’s license bearing defendant’s name. Id. 11 13,

B. Procedural History

In 2007, a federal grand jury returned a two-count indictment against defendant, charging
him with Unlawful Possession with Intent to Distribute Fif`ty Grams or More of Cocaine Base in
violation of 21 U.S.C. § 84l(a)(l), (b)(l)(A)(iii) ("Count One") and Escape from an Officer in
violation of 22 DCC § 260l(a)(2) ("Count Two"). Ia’. 11 l. In March 2009, defendant pled guilty
to Count Two, but no plea agreement was filed at that time. Ia'. 11 2. ln April 2009, defendant
pled guilty to Count One in a written plea agreement in which the parties agreed that a sentence
of 84 months imprisonment was appropriate for both Counts One and Two. Id. 1111 5»~9; Plea
Agreement11 3, ECF No. 30, Apr. l4, 2009.

Under the U.S. Sentencing Guidelines, the applicable guideline range for Count Two was
5 to 20 months. Id. 11 73. The applicable guideline sentencing range for the crack cocaine
offense would have been l20 to 150 months (total offense level 27, criminal history category V).
Ia’. 1111 72. On July 3l, 2()09, defendant was sentenced according to the plea agreement by the
Honorable Henry H. Kennedy, Jr. to 84 months imprisonment (an 84-month sentence for Count
One and a 60-month concurrent sentence for Count Two). Am. J. & C0mmitment Order l~2,
ECF No. 42, Aug. 7, 2009. Defendant filed a timely § 2255 Motion on August l7, 2010. Def.’s
M., ECF No. 44, Aug. l7, 2010; see Fed. R. App. P. 4(b), 26(a)(2).
II. LEGAL STANDARD

A. Section 2255 Motion

A motion under 18 U.S.C. § 2255 allows federal prisoners to collaterally attack an

otherwise final sentence if the sentence was (l) imposed in violation of the Constitution or laws

of the United States; (2) the court was without jurisdiction to impose the sentence; (3) the
sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise
subject to collateral attack. § 2255(a). The petitioner bears the burden of proof under § 2255
and must demonstrate his right to relief by a preponderance of the evidence. United States v.
Pollard, 602 F. Supp. 2d 165, 168 (D.D.C. 2009). Relief under § 2255 is an extraordinary
remedy in light of society’s legitimate interest in the finality of judgments United Slates v.
Zakas, 793 F. Supp. 2d 77, 79-80 (D.D.C. 2011). Indeed, "[t]o obtain collateral relief'[,] a
prisoner must clear a significantly higher hurdle than would exist on direct appeal." United
Slares v. Frady, 456 U.S. 152, 166 (1982). A district court may deny a § 2255 motion without a
hearing when "the motion and files and records of the case conclusively show that the prisoner is
entitled to no relief." United States v. Morrison, 98 F.3d 619, 625 (D.C. Cir. 1996). Finally,
claims not raised on direct appeal may generally not be raised on collateral review. Massaro v.
United Stales, 538 U.S. 500, 504 (2003). The claim may be raised on collateral review only if
the defendant can first demonstrate either that he is "actually innocent," United States v.
Pettigrew, 346 F.3d 1139, 1144 (D.C. Cir. 2003) (citations omitted), or that there is both
sufficient "cause" excusing his double procedural default and "actual prejudice" resulting from
the errors of which he complains, United States v. Frady, 456 U.S. 152, 167-68 (1982).

B. Ineffective Assistance of Counsel

To prevail on an ineffective assistance of counsel claim, a defendant must satisfy a two-
part test that requires proof of both incompetence and prejudice. Strz'ckland v. Washington, 466
U.S. 668, 687-88 (1984); Kimmelman v. Morrison, 477 U.S. 365, 381 (1986). To prove
incompetence, a defendant must demonstrate that his attorney’s errors were "so serious that

counsel was not functioning as the ‘counsel’ guaranteed . . . by the Sixth Amendment."

Strz`ckland, 466 U.S. at 687. That is, a defendant must establish that "counsel’s representation
fell below an objective standard of reasonableness" and that "counsel’s conduct so undermined
the proper functioning of the judicial process that the [process] cannot be relied on as having
produced a just result." Id. at 686-88. However, a court should not analyze counsel’s actions
retrospectively but must, instead, evaluate counsel’s performance on the basis of how he or she
would have viewed the case at the time, without the benefit of hindsight. Id. at 689. The court’s
assessment of counsel’s performance must also be comprehensive rather than limited to a
particular act or omission. Morrison, 477 U.S. at 386. Finally, the reviewing court must
"indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance." Strickland, 466 U.S. at 689.

Second, a defendant must affirmatively prove prejudice that is "so serious as to deprive
the defendant of a fair trial, a trial whose result is reliable." Ia'. at 687. To meet this standard, a
defendant must show that "but for trial counsel’s error[,] there is a reasonable probability that the
defendant would have been found not guilty.” Id. at 694 In the context of a guilty plea, a
defendant must prove prejudice by showing that "there is a reasonable probability that, but for
counsel’s errors, [defendant] would not have pleaded guilty and would have insisted on going to
trial." Hz`ll v. Lockharz, 474 U.S. 52, 59 (1985). A reasonable probability is a "probability
sufficient to undermine confidence in the outcome." United Slates v. Loughery, 908 F.2d 1014,
1018 (D.C. Cir. 1990) (quoting Strickland, 466 U.S. at 694). The defendant "must shoulder the
burden of showing, not merely that the errors . . . created a possibility of prejudice, but that they
worked to his actual and substantial disadvantage, infecting his entire [proceeding] with error of

constitutional dimensions." Frady, 456 U.S. at 170.

A failure to make the required showing on either prong defeats a defendant’s ineffective
assistance of counsel claim. Strickland, 466 U.S. at 700.
III. DISCUSSION

A. Due Process Violation: Unreasonable Sentence

Defendant argues that his sentence was "unreasonable" and a violation of his "right to
due process of law" because his sentence was "[ba]sed largely upon the discrepancy, both in the
[U.S.] Sentencing Guidelines and . . . 21 U.S.C. [§] 841, between crack and p[o]wder cocaine."
Def.’s M. 6. However, defendant did not raise this claim at sentencing or on direct review,
Def.’s M. 7, 11, and is thus barred from bringing the claim on collateral review unless defendant
can show the requisite "actual innocence," Petligrew, 346 F.3d at 1144, or "cause and actual
prejudice," Frady, 456 U.S. at 167-68. Defendant does not claim actual innocence, and the only
"cause" defendant offers for not raising the claim at sentencing or on direct appeal is that "[t]he
issue was not preserved for appellate review, as no objection was made regarding this issue at
sentencing." Def.’s M. 11. Such a reason does not show why defendant’s double procedural
default should be "excused," Pettigrew, 346 F.3d at 1144, but merely observes that a procedural
default occurred. Thus, defendant fails to show the requisite cause. Defendant also makes no
claims of prejudice Because a petitioner must prove both cause and prejudice, and because
defendant has failed to prove either, the Court cannot consider defendant’s collateral claim
challenging the reasonableness of his sentence See Peltigrew, 346 F.3d at 1144; Frady, 456
U.S. at 167~68.

B. Ineffective Assistance

Defendant also did not raise his claim of ineffective assistance of counsel on direct

appeal. Def.’s M. 5, 11. However, ineffective assistance of counsel claims are not subject to

procedural default and may be advanced in a collateral proceeding under a timely § 2255 motion
"whether or not the petitioner could have raised the claim on direct appeal." Massaro, 538 U.S.
at 504. Thus, the Court considers defendant’s ineffective assistance claim.

Defendant claims that his counsel was ineffective because she "failed to conduct [an]
adequate investigation, causing [defendant] to enter a plea unaware of viable alternatives," such
as "viable challenges to the government’s proposed sentence." Def.’s M. 5. Defendant notes
that, "[s]pecifically, counsel agreed to an unsupported drug amount" and failed to object to
defendant’s sentence on the grounds that it was based upon a discrepancy between crack and
powder cocaine. Ia'. Defendant offers no further evidence in support of his ineffective assistance
claim. To prevail, defendant must prove both incompetence and prejudice. Slrickland, 466 U.S.
at 687-88.

Defendant does not explain what his counsel should have investigated, nor does
defendant state what "viable alternatives" existed that would have been more beneficial to
defendant than his plea agreement, which awarded defendant a sentence (84 months) well below
his recommended guideline sentence (120 to 150 months). Defendant’s claim that the drug
amount in the plea agreement ("more than 50 grams but less than 150 grams"), PSR 11 2, was
"unsupported" is meritless. Plea Agreement 11 2. Defendant signed the Government’s proffer of
facts, agreeing that the facts were "true and accurate," including the fact that 71.5 grams of
cocaine base were attributable to defendant. Gov’t’s Proffer of Facts 2, 4, ECF No. 31, Apr. 4,
2009. Finally, defendant fails to prove that counsel was incompetent or that he was prejudiced
by counsel’s decision to not challenge his sentence on crack/powder discrepancy grounds.

First, defendant’s counsel was not incompetent for failing to object to defendant’s 84-

month sentence, as that sentence was well below the applicable guideline sentencing range (120-

150 months) to which defendant would have otherwise been subject and, therefore, of great
benefit to defendant. Further, the guideline sentencing range_and not the lesser sentence under
the plea agreement~would have been the only possible source of the crack/powder cocaine
disparity of which defendants complains. Because the sentencing court did not base defendant’s
sentence on the applicable guideline range but, rather, on the plea agreement’s suggested 84-
month sentence, the cracldpowder disparity issue is not even implicated in defendant’s situation.
Defendant’s counsel was therefore not incompetent for objecting to the 84-month sentence on
that, or any other, ground.

Defendant also fails to show how his counsel’s decision prejudiced him in any way
because, even under the current and amended Sentencing Guidelines that have remedied the
crack/powder disparity, defendant’s applicable guideline range for 71.5 grams of cocaine base
and a criminal history category of V would be 110~137 months imprisonment-a range still
higher than the 84-month sentence that defendant received. See U.S. Sentencing Guidelines §§
2D1.1, 5A (2012). Thus, because defendant’s 84-month sentence is still well below even his
now-applicable sentencing range, any possibility of prejudice caused by his counsel’s decision
not to object to defendant’s 84-month sentence is nullified. See cf United Stales v. Watson, No.
00-cr-313-05, 2010 WL 3239210, at *5 (E.D. Pa. Aug. 12, 20l0) (rejecting defendant’s
ineffective assistance of counsel claim due to lack of prejudice because defendant would have
received the same sentence regardless of the discrepancy).

Finally, defendant has failed to establish the requisite prejudice under Stricklcmd in a
more general sense for several reasons. First, the plea agreement benefited defendant by
ultimately resulting in a sentence lower than the sentence to which defendant would otherwise

have been exposed. See United States v. Felder, 563 F. Supp. 2d 160, 166-67 (D.D.C. 2008)

(holding that, even if defense counsel had provided deficient advice about the guilty plea,
defendant was not prejudiced because defendant faced a potentially longer sentence as well as
additional charges that were dropped under the agreement if he had not pled guilty). Second,
defendant has not claimed that he would not have pled guilty in the absence of counsel’s alleged
incompetence, which is a prerequisite to a successful post-plea § 2255 motion. See United States
v. Zaia, 751 F. Supp. 2d 132, 142 (D.D.C. 2010) ("Critically . . . [the defendant] has not
demonstrated that but for counsel error, she would not have pleaded guilty"). Third, defendant
admitted he was guilty of the charged offenses in the plea agreement and voluntarily and
knowingly agreed to the plea deal-facts that preclude the requisite level of prejudice. See
Mansfield v. United States, 800 F. Supp. 2d 84, 90 (D.D.C. 2011) (finding that because
defendant admitted her guilt and knowingly entered into the plea agreement, defendant could not
establish that she was prejudiced by counsel’s alleged incompetence); Plea Agreement l, 6.

Because defendant fails to prove both incompetence and prejudice, his ineffective
assistance claim fails. Accordingly, defendant’s Motion does not require a hearing because the
record conclusively shows that defendant is not entitled to relief. See Morrison, 98 F.3d at 625.
IV. CERTIFICATE OF APPEALABILITY

A petitioner must obtain a certificate of appealability before pursuing any appeal from a
final order in § 2255 proceeding. See 28 U.S.C. § 2255(c)(1)(B). When the denial ofa § 2255
motion is based on the merits of the claims in the motion, a district court should issue a
certificate of appealability only when the appeal presents a "substantial showing of the denial of
a constitutional right." 28 U.S.C. § 2255(c)(2). The petitioner is required to show that
reasonable jurists could debate whether the issues should have been resolved differently or are

“adequate to deserve encouragement to proceed further." Slack v. McDaniel, 529 U.S. 473, 483

(2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983), superseded on other grounds
by 28 U.S.C. § 2253(0)(2)); see also Mendez v. Knowles, 556 F.3d 757, 771 (9th Cir. 2009).
Furthermore, the Supreme Court has stated:
When the district court denies a habeas petition on procedural grounds without
reaching the prisoner’s underlying constitutional clairn, a [Certificate of
Appealabilityj should issue when the prisoner shows, at least, that jurists of
reason would find it debatable whether the petition states a valid claim of the
denial of a constitutional right and that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling.
Slczck, 529 U.S. at 484. Such a showing can be made when precedent clearly demonstrates that
courts have come to divergent conclusions based on analogous facts. Because defendant has not
made a substantial showing of the denial of a constitutional right, and because the Court finds
that reasonable jurists would not debate the denial of petitioner’s motion, the Court declines to
issue a certificate of appealability.
V. CONCLUSION
Defendant has failed to show the requisite incompetence and prejudice under Strickland
for his ineffective assistance claim, and defendant’s due process claim is procedurally barred.
Thus, defendant’s Motion is DENIED.

A separate Order consistent with this Memorandum Opinion shall issue this date.

Signed by Royce C. Lamberth, Chief Judge, on Aprillg_, 2013.

