United States District Court, D. Columbia
August 17, 2005.
DEBRA WALDROP, Petitioner,
UNITED STATES OF AMERICA, Respondent.
The opinion of the court was delivered by: RICARDO URBINA, District Judge
DENYING THE PETITIONER'S § 2255 MOTION
On April 10, 2003, the petitioner, Deborah Waldrop, pled guilty
to two counts of unlawful distribution of cocaine base, one count
of unlawful possession with intent to distribute over fifty grams
of cocaine base, and one count of unlawful distribution of five
grams or more of cocaine base. On October 20, 2003, the court
sentenced the petitioner to 120 months incarceration for each of
the four counts, the individual sentences to run concurrently. In
computing the petitioner's sentence, the court declined to apply
the "safety valve" provision of the United States Sentencing
Guidelines ("U.S.S.G."), which is afforded to defendants who
cooperate fully with the government. As a result, the petitioner
did not receive the benefit of the two-point reduction in her
offense level. The petitioner filed an appeal with the D.C.
Circuit arguing that the court erred in not applying the "safety
valve provision." On April 6, 2005, the petitioner filed the instant motion for
relief under 28 U.S.C. § 2255*fn1 arguing that (1) the court
erred in not applying the "safety valve" provision of the
U.S.S.G., (2) the court improperly applied the sentencing
framework for "crack" cocaine rather than cocaine base, and (3)
her counsel was ineffective in failing to advise her to accept a
plea to a lesser included offense.*fn2 Because the D.C.
Circuit has affirmed this court's refusal to apply U.S.S.G. §
5C1.2, because she is procedurally barred from raising the second
claim, and because she has failed to demonstrate that her trial
counsel was ineffective, the court denies the petitioner's
A. Legal Standard for § 2255 Motions
A person may challenge the validity of his sentence under
28 U.S.C. § 2255 by moving the court that imposed the sentence to
"vacate, set aside, or correct the sentence." 28 U.S.C. § 2255;
see also Daniels v. United States, 532 U.S. 374, 377 (2001);
Wilson v. Office of Chairperson, Dist. of Columbia Bd. of
Parole, 892 F. Supp. 277, 279 n. 1 (D.D.C. 1995) (holding that
"it is well settled in this jurisdiction and elsewhere that §
2255 will lie only to attack the imposition of a sentence and that an attack on the execution
thereof may be accomplished only by way of habeas corpus in the
district of confinement") (quoting Hartwell v. United States,
353 F. Supp. 354, 357-58 (D.D.C. 1972)).
Section 2255 authorizes the sentencing court to discharge or
resentence a prisoner if the court concludes that it was without
jurisdiction to impose the sentence, the sentence was in excess
of the maximum authorized by law, or the sentence is otherwise
subject to collateral attack. 28 U.S.C. § 2255; United States v.
Addonizio, 442 U.S. 178, 185 (1979) (noting that "[t]his statute
was intended to alleviate the burden of habeas corpus petitions
filed by federal prisoners in the district of confinement, by
providing an equally broad remedy in the more convenient
jurisdiction of the sentencing court") (citing United States v.
Hayman, 342 U.S. 205, 216-17 (1952)). A petitioner can
collaterally attack his sentence under section 2255 when the
sentencing judge made an "objectively ascertainable error." King
v. Hoke, 825 F.2d 720, 724-25 (2d Cir. 1987) (citing
Addonizio, 442 U.S.C. at 187).
Relief under section 2255, however, is an extraordinary remedy,
Addonizio, 442 U.S. at 184; United States v. Pollard,
959 F.2d 1011, 1020 (D.C. Cir. 1992), and the person seeking to
vacate his sentence shoulders the burden of sustaining his
contentions by a preponderance of the evidence. United States v.
Simpson, 475 F.2d 934, 935 (D.C. Cir. 1973); accord Triana v.
United States, 205 F.3d 36, 40 (2d Cir. 2000).
B. The Court Denies the Petitioner's Claim of Failure to Apply
the U.S.S.G. § 5C1.2, "Safety Valve" Provision
A petitioner's § 2255 claims may be dismissed if the claims
raised are the same as those raised previously on direct review.
United States v. Cooper, 725 F.2d 756 (D.C. Cir. 1984) (holding that because a petitioner's claim had been denied on the
merits on appeal, the trial court properly dismissed the § 2255
claim) (citing Tucker v. United States, 427 F.2d 615, 617 (D.C.
Cir. 1970) (holding that a § 2255 motion may be summarily denied
if, "the grounds for relief relied upon were previously
determined, on the merits, adversely to the applicant after an
adequate hearing, and the ends of justice would not be served by
reaching the merits of the new application") (internal quotation
marks omitted); see also Wright v. United States, 182 F.3d 458,
467 (6th Cir. 1999) (holding that the petitioner could not
challenge the government's evidence that the defendant possessed
contraband because that issue had previously been resolved by the
appellate court); Riascos-Prado v. United States, 66 F.3d 30,
33-34 (2d Cir. 1995) (ruling that the petitioner could not raise
ineffective assistance of counsel claim in § 2255 motion because
that issue had previously been resolved on direct appeal).
Here, the petitioner argues that the court erred in refusing to
apply U.S.S.G. § 5C1.2, the "safety valve" provision. Pet'r's
Mot. at 1-3. On May 24, 2005, the D.C. Circuit affirmed this
court's determination on that issue. United States v. Waldrop,
Slip Op. 03-3128 (D.C. Cir. May 24, 2005). The D.C. Circuit found
that this court's determination was "amply supported by the
evidence, and the finding upon which it rests certainly is not
clearly erroneous." Id. at 2. Because the D.C. Circuit has
definitively ruled on the precise issue before the court, the
petitioner's U.S.S.G. § 5C1.2 claim is barred. See Cooper,
725 F.2d at 756.
C. The Court Denies the Petitioner's Claim of Insufficient
When a petitioner fails to raise an argument on direct appeal,
he may raise a collateral claim, pursuant to § 2255, only if he
can show cause and prejudice, or actual innocence. Massaro v.
United States, 538 U.S. 500
, 504 (2003); Pettigrew,
346 F.3d at 1144. To show cause and prejudice for the procedural default, the petitioner
must (1) demonstrate good cause for his failure to raise the
issue on appeal and (2) show that the issue he is raising caused
actual prejudice. Bousley v. United States, 523 U.S. 614
(1998); United States v. Kleinbart, 27 F.3d 586, 590 (D.C. Cir.
1994). Although a petitioner can establish cause if a claim would
have been "so novel that its legal basis [was] not reasonably
available to counsel," novelty does not exist merely because the
claim would have been "unacceptable to that particular court at
that particular time." Bousley, 523 U.S. at 623 (quoting Engle
v. Isaac, 456 U.S. 107
, 130 n. 35 (1982)).
The petitioner argues that there was an insufficient
evidentiary basis to support her guilty plea to possession and
distribution of crack cocaine. Pet'r's Mot at 2. But the
petitioner fails to raise this claim on direct review, and has
asserted no justification for her failure to do so. To the
contrary, the petitioner admits awareness of this issue at
sentencing, prior to filing her appeal. Id. (stating that "the
defendant moved into the plea agreement with the government . . .
but during sentencing was shunned upon with an unexplanitory
[sic] intent, resulting in the defendant being sentenced under
the term Crack").
D. The Court Denies the Petitioner's Claim of Ineffective
Assistance of Counsel
As a preliminary matter, the government argues that the
petitioner is procedurally barred from raising this issue because
she failed to do so on direct review. Resp't's Opp'n at 3-5. The
government is incorrect. Ineffective assistance of counsel claims
are not waived if not raised during appeal, Massaro v. United
States, 538 U.S. 500
, 509 (2003), and petitioner is not barred
from now doing so.
To demonstrate ineffective assistance of counsel, a defendant
must show that his counsel's performance was in fact deficient and that the
deficient performance prejudiced his defense. Strickland v.
Washington, 466 U.S. 668, 687 (1984). A petitioner claiming
ineffective assistance of counsel in a guilty plea must
demonstrate that: (1) "[c]ounsel's representation fell below an
objective standard of reasonableness" and (2) "[b]ut for
counsel's errors, [she] would not have pleaded guilty and would
have insisted on going to trial." Hill v. Lockhart,
474 U.S. 52, 59 (1985) (applying the holding of Strickland to such
pleas); United States v. Del Rosario, 902 F.2d 55, 57-58 (D.C.
Cir. 1990) (requiring a "colorable claim of innocence to justify
vacating a plea on ineffective assistance of counsel grounds");
see also Strickland, 466 U.S. at 687-688 (discussing a similar
In this context, a "reasonable probability" means "a
probability sufficient to undermine confidence in the outcome."
United States v. Thompson, 27 F.3d 671, 675 (D.C. Cir. 1994)
(quoting Strickland, 466 U.S. at 694). The court must begin
with a strong presumption that "counsel's conduct falls within
the wide range of reasonable professional assistance." See
Strickland, 466 U.S. at 688-89. "Because advocacy is an art and
not a science, and because the adversary system requires
deference to counsel's informed decisions, strategic choices must
be respected . . . if they are based on professional judgment."
Id. at 681
Because the court must find both a deficiency in representation
and prejudice to the defendant, the court need not "approach the
inquiry in the same order or even to address both components of
the inquiry if the defendant makes an insufficient showing on
one." Strickland, 466 U.S. at 697. Stated differently, the
court is not required to consider "whether counsel's performance
was deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies." Id. The petitioner claims that because of the ineffectiveness of
her counsel, she plead to four counts in the indictment rather
than to a lesser included offense. Pet'r's Mot. at 2. In support
of this position, the petitioner cites to the plea hearing
transcript, id. at 3, wherein after the petitioner stated that
she "thought [she] was just helping out somebody who was on
[crack] like [she] was," the defense counsel stated that "[w]hat
she said was she was selling to Detective Quigley." Plea Hr'g Tr.
at 17 (April 10, 2003). To the petitioner, this demonstrates that
counsel was "putting words in the defendant's mouth in an evasive
allure." Pet'r's Mot. at 3. The court cannot agree. Several lines
following these statements, in response to the court's inquiry
into whether the defendant was "intending to distribute [the
drugs] to Detective Quigley or someone else," the defendant
answered, "[n]o, just her. She was the only one. I ain't never
sell none. Just sold it to her. I wasn't selling drugs. But when
she came and I just felt sorry for her, because she needed some
drugs[.]" Plea Hr'g Tr. at 18. The petitioner also points to a
portion of the transcript in which she asked the court if she
could fire her counsel. Pet'r's Mot. at 3. Read in context,
however, this statement bears little resemblance to the meaning
the petitioner attempts to ascribe to it. In its entirety, this
exchange proceeds as follows
The Court: Are you satisfied with the services of your attorney, the way
counsel has handled your case, given you advise [sic] and assisted
you in reaching this very important decision about what to do?
The Defendant: Can I fire him?
The Court: Can you fire him?
The Defendant: I don't need to fire him.
The Court: You need to answer my question first.
The Defendant: He was fair
The Court: Is there anything you don't understand or that you would
The Defendant" No. He explained everything to me.
The Court: Why do you ask me if you can fire him?
The Defendant: Because I just wanted to know but I don't want to fire him. We in there and get it over with.
Plea Hr'g Tr. at 24-25. The petitioner's two citations to the
transcript constitute the gravamen of her allegations of
ineffective assistance of counsel. They wholly fail under both
Strickland prongs. The petitioner carries the burden of
demonstrating that the counsel's representation was deficient and
that the deficient performance prejudiced her case. Strickland,
466 U.S. at 687. Petitioner's assertions are facially meritless
and fail to satisfy either, much less both, of the Strickland
E. Section 2255 Hearing is not Necessary
Section 2255 provides that a hearing shall be granted "[u]nless
the motion and the files and records of the case conclusively
show that the prisoner is entitled to no relief."
28 U.S.C. § 2255. When a § 2255 motion involves ineffective assistance of
counsel, a hearing is not required if the district court
determines that the "alleged deficiencies of counsel did not
prejudice the defendant." United States v. Sayan, 968 F.2d 55,
66 (D.C. Cir. 1992) (citing United States v. Patterson,
652 F.2d 1046, 1047-48 (D.C. Cir. 1981)). The petitioner's motion
raises three separate claims for relief. Two of these claims
(failure of court to apply U.S.S.G. § 5C1.2 and insufficiency of
the evidence) are procedurally barred. The petitioner's
ineffective assistance of counsel claim is belied by the record
and is therefore without evidentiary support. U.S. v. Rashad,
331 F.3d 908 (D.C. Cir. 2003) (holding that hearing is
unnecessary for ineffective assistance of counsel claim if the
record conclusively shows that the petitioner is entitled to no
relief) (citing U.S. v. Fennell, 53 F.3d 1296 (D.C. Cir. 1995);
U.S. v. Weaver, 234 F.3d 42, 45 (D.C. Cir. 2000) (holding that
hearing is not required for claim of ineffective assistance of
counsel where court determines that the alleged deficiencies in
representation did not prejudice the petitioner); U.S. v. Briggs, 939 F.2d 222, 228 (5th Cir.
1989) (holding that no hearing is needed under § 2255 when the
petitioner's factual allegations are negated by the record).
Accordingly, the court concludes that under these circumstances
no evidentiary hearing is necessary under § 2255, nor would one
For the foregoing reasons the court denies the petitioner's
motion to vacate, set aside, or correct the sentence. An order
consistent with this Memorandum Opinion is separately and
contemporaneously issued on this 17th day of August, 2005.
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