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United States v. Ayers

United States District Court, District of Columbia

May 8, 2018

LEE AYERS, Defendant.


          JOHN D. BATES, United States District Judge

         In many ways, Lee Ayers has locked himself in. He locked himself into legal trouble when he committed a series of crimes that led to both state and federal convictions. He locked himself into a twelve-year prison sentence by agreeing to it in a plea deal. And he locked himself into a sentencing date that happened to occur a month before a landmark bill reducing mandatory minimum sentences was passed into law. Now, Ayers has collaterally attacked his sentence, claiming that his trial counsel rendered ineffective assistance because she did not seek to continue his sentencing until after passage of the Fair Sentencing Act (FSA). His argument is not without appeal. However, for the reasons explained below, the Court will deny his claim.

         I. BACKGROUND

         Ayers was arrested on September 6, 2008, after attempting to flee officers of the District of Columbia Metropolitan Police Department (MPD) who were conducting a traffic stop of his car. Indictment [ECF No. 1] at 1; United States v. Ayers, 795 F.3d 168, 170 (D.C. Cir. 2015). Ayers accelerated away from the MPD officers, drove the wrong way down a one-way street, lost control of his car, and crashed. Ayers, 795 F.3d at 170. When MPD officers searched his car, they found 98.1 grams of cocaine base (crack cocaine), a Glock 27 pistol, a Beretta 9mm pistol, .40 caliber auto cartridges, .38 special cartridges, a glass cooking pot with cocaine residue, $3, 800 in cash, zip-lock bags, and a small quantity of marijuana. Id. at 170-71; see Indictment at 1-3.

         A federal grand jury indicted Ayers on four charges: possession with intent to distribute fifty or more grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(iii); using, carrying, and possessing a firearm during a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1); and two counts of unlawful possession of a firearm and/or ammunition by a felon, in violation of 18 U.S.C. § 922(g)(1). Indictment at 1-3. On April 1, 2010, Ayers entered into a plea agreement, which required him to plead guilty to the possession with intent to distribute offense- which carried a 120-month mandatory minimum-and to agree to a sentence of 144 months. See Plea Agreement [ECF No. 44] at 1-2. In exchange, the government dropped the other three charges-one of which carried a five-year mandatory minimum of its own-though Ayers had to acknowledge that the government had a factual basis for those claims, as well. See id. at 2, 4. The government also agreed to dismiss the sentence enhancements it had sought, see id. at 4, which would have doubled the mandatory minimum for Ayers's guilty plea due to his history of drug offenses. The agreement allowed Ayers to argue at sentencing that part or all of his sentence should run concurrently to any other sentence he was serving, and allowed the government to oppose concurrent sentencing. See id. at 2. Ayers was already serving a nine-year sentence imposed by the D.C. Superior Court for an assault charge stemming from a shootout. See Def.'s Mem. in Aid of Sentencing [ECF No. 49] at 8; Sentencing Tr. [ECF No. 79] at 21:4-:9.

         Ayers pleaded guilty in open court on April 1, 2010, see Min. Order of Apr. 1, 2010; Tr. of Plea Hr'g [ECF No. 80] at 25:13-26:19, and the Court deferred a decision on the plea agreement, Tr. of Plea Hr'g at 23:11-:25. Ayers's attorney, Michelle Peterson, asked the Court to postpone sentencing until “toward the end of July”: “[p]art of [her] argument” for concurrent sentencing was to “be based on the changes in the crack cocaine laws, ” so she wished to “have till the end of July to see how that's developing.” Id. at 27:10-:18. The Court could not schedule a hearing for the end of July due to scheduling concerns, and suggested either much earlier in July or mid-August. Id. at 27:19-:21. Peterson responded that mid-August did not work for her and said “it would have to be the beginning of September.” Id. at 27:22-:23. The Court asked whether that was her request. Id. at 27:24. After consulting with Ayers, Peterson said: “Early July would be fine then, Your Honor.” Id. at 27:25-28:2. The Court set the sentencing hearing for July 9, see id. at 28:21-29:3, and Ayers was sentenced on that date to the agreed-upon 144 months, Sentencing Tr. at 38:1-:3. The Court rejected Peterson's argument for concurrent sentencing, running Ayers's sentence consecutive to his Superior Court sentence. Id. at 41.

         As Ayers pleaded guilty and approached sentencing, the FSA was winding its way through Congress. The FSA was introduced in the Senate on October 15, 2009, but senators did not reach a compromise and pass the bill through the Senate Judiciary Committee until March 11, 2010. See Library of Congress, S.1789 - Fair Sentencing Act of 2010, [hereinafter “FSA Enactment History”] (last updated Aug. 3, 2010), The full Senate passed it by voice vote on March 17. Id. The House of Representatives passed the FSA on July 28, and President Barack Obama signed it on August 3. Id. During sentencing, Peterson pointed to the changes Congress appeared to be making to the crack/powder disparity as an argument for running at least part of Ayers's sentence concurrently. See Sentencing Tr. at 18:6-:17, 20:19-:24. Though the FSA had passed the Senate, and would eventually become law less than a month after Ayers's sentencing, Peterson did not seek a continuance of the sentencing date to wait for the possible passage of the FSA.

         Ayers appealed his sentence, but the D.C. Circuit affirmed in July 2015. Ayers, 795 F.3d at 177-78. In February 2016, the D.C. Circuit decided United States v. Abney, 812 F.3d 1079 (D.C. Cir. 2015), holding that a defendant had a meritorious ineffective assistance of counsel (“IAC”) claim when his attorney had failed to seek a continuance of his sentencing hearing, which took place after the House had passed the FSA and the day before the President signed it into law. On August 26, 2016, armed with the Abney decision, Ayers filed a motion to vacate his sentence under the federal habeas statute, 28 U.S.C. § 2255. See Mot. Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (“Mot. to Vacate”) [ECF No. 59].[1] The Court ordered that Ayers be appointed counsel. See Min. Order of Nov. 29, 2016. The government opposed Ayers's habeas motion, see U.S.'s Opp'n to Def.'s Pro Se Mot. Under 28 U.S.C. § 2255 (“Opp'n”) [ECF No. 62], Ayers filed a reply, see Def.'s Reply [ECF No. 77], and the government filed a surreply, see U.S.'s Surreply [ECF No. 78]. The Court ordered an evidentiary hearing, see Scheduling Order [ECF No. 69], and after multiple delays two hearings were held on November 27 and December 12, 2017, see Evid. Hr'g Tr. [ECF Nos. 84, 88]. After the evidentiary hearings, both parties filed final briefs. See Def.'s Br. in Supp. of His Mot. Under 28 U.S.C. § 2255 (“Def.'s Br.”) [ECF No. 93]; U.S.'s Final Opp'n to Def.'s Mot. Under 28 U.S.C. § 2255 (“U.S.'s Final Opp'n”) [ECF No. 92]. A final motions hearing occurred on February 16, 2018.


         A federal prisoner may bring a habeas corpus action in district court “upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a).

         While “the general rule [is] that claims not raised on direct appeal may not be raised on collateral review unless the petitioner shows cause and prejudice, ” defendants may bring IAC claims for the first time on collateral review without having to meet these standards. Massaro v. United States, 538 U.S. 500, 504, 509 (2003). Instead, IAC claimants “must show [1] ‘that counsel's performance was deficient' such that ‘counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment' and [2] that ‘the deficient performance prejudiced the defense.'” United States v. Glover, 872 F.3d 625, 630 (D.C. Cir. 2017) (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)). A court may deny an IAC claim on either of these two prongs without addressing the other. See Strickland, 466 U.S. at 697.


         Ayers claims that Peterson rendered ineffective assistance by failing to seek a continuance of his sentencing until after the FSA became law. Ayers also makes the alternative argument that he should be resentenced “in the interests of justice.” The Court addresses these arguments in turn.


         Ayers's main contention is that his trial attorney, Michelle Peterson, rendered ineffective assistance of counsel in violation of the Sixth Amendment. The government contests both the idea that Peterson's performance was deficient and the claim that her failure to seek a continuance resulted in prejudice to Ayers. Ultimately, however, the Court need not reach the second prong of the Strickland test, because the Court finds that Ayers has failed to satisfy the first.

         To make out a successful IAC claim, a defendant must prove that his counsel was deficient. Under Strickland, “[t]he proper measure of attorney performance” is “reasonableness under prevailing professional norms.” 466 U.S. at 688. Thus, an attorney's performance is deemed deficient if it “falls below an objective standard of reasonableness.” Abney, 812 F.3d at 1086. To make this showing, “a ‘defendant must overcome the [strong] presumption that, under the circumstances, the challenged action might be considered sound trial strategy.'” Id. at 1087 (alteration in original) (quoting Strickland, 466 U.S. at 689). Because an attorney's strategy almost never becomes an explicit part of the record, “th[is] presumption may only be rebutted through a showing that no sound strategy posited by the [opposing party, here the government] could have supported the conduct.” Id. (quoting Thomas v. Varner, 428 F.3d 491, 500 (3d Cir. 2005)). A court must make “every effort . . . to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.” Strickland, 466 U.S. at 689. As might be surmised from the tenor of these standards, “[j]udicial scrutiny of counsel's performance must be highly deferential.” Id.

         Ayers claims that Peterson's performance was deficient because she “knew that the implementation of the [FSA] was on the horizon” at the time of Ayers's July 9 hearing, yet, “[d]espite this, [she] went forward with the sentencing.” Def.'s Reply at 7-8. Ayers asserts that he had nothing to lose by waiting, but could have strengthened his argument for concurrent sentencing by doing so, and that therefore there was no strategic justification for Peterson's not having sought a continuance. Id. at 8. The government argues that Peterson's actions could have been based on a tactical choice, and that in any event her decision not to seek a continuance was reasonable. See U.S.'s Final Opp'n at 11-12; U.S.'s Surreply at 5-6.

         Ayers's deficiency argument turns almost entirely on the Abney decision; therefore, a thorough summary of that case is in order. Abney pleaded guilty to one count of possession of fifty grams or more of cocaine base with intent to distribute. Abney, 812 F.3d at 1083. Due to a series of continuances, Abney was sentenced on August 2, 2010-five days after the House had passed the FSA and the day before President Obama signed it into law. Id. at 1083-84. The FSA increased the amount of cocaine base subject to certain mandatory minimums, such that the amount that Abney pleaded to possessing would receive only a five-year minimum under the FSA as opposed to the ten-year minimum to which he was subject when sentenced. Id. Abney's counsel did not seek a continuance, and indicated that he believed the FSA would not be applied retroactively to individuals who committed crimes before the bill became law, even though under the Sentencing Reform Act of 1984 the applicable Guidelines are those in effect at the time of sentencing. Id. at 1084. The D.C. Circuit reversed the district court's denial of Abney's motion to reconsider his § 2255 motion, which had made an IAC claim. Id. at 1083.

         The court first determined that the government's “proffered strategic rationales are implausible, ” and that, “[o]n this record, . . . there is no conceivable strategy that would justify the failure of Abney's counsel to seek a continuance of sentencing.” Id. at 1088. The court therefore looked to whether a reasonable attorney would determine that there was a reasonable probability of successfully reducing Abney's sentence by seeking a continuance. See id. It found that “[t]he FSA's impending enactment was so important and widely publicized-and the reasonable likelihood of its retroactive effect so apparent-that objectively reasonable counsel would have known about it and the open retroactivity question, ” and therefore would have sought a continuance. Id. Both the district court and the government had recognized at sentencing that the FSA might be deemed retroactive, such that a shorter sentence for Abney may have been possible based on the FSA alone if he were sentenced later. See id. And the defense bar was seeking continuances for similarly situated defendants at the time, which indicated that Abney's counsel's performance was unreasonable as measured by professional norms. See id. at 1088-89. “In view of counsel's ‘overarching duty to advocate the defendant's cause, '” the court held, “Abney's counsel could not remain silent when there was a substantial sentencing benefit-a five-year reduction in the mandatory minimum-that was reasonably likely to apply to his client if his sentencing were postponed.” Id. at 1090 (citation omitted). Counsel was therefore deficient. As a “reasonable, conscientious, and impartial district court would have granted” a continuance, the deficiency was also prejudicial, and Abney therefore had a meritorious IAC claim. Id. at 1093.

         This case differs from Abney in several crucial ways, and these differences prove fatal to Ayers's IAC claim. To begin with, Ayers was sentenced pursuant to an agreement under Federal Rule of Criminal Procedure 11(c)(1)(C). As will be discussed further below, this meant that, once the Court accepted his plea, it was bound to accept the 144-month sentence outlined in the agreement. Thus, while Abney's sentence would have changed after passage of the FSA, Ayers's sentence could not. The only debate at sentencing was over whether that sentence would run consecutively or concurrently with Ayers's existing Superior Court sentence.

         In part because of the 11(c)(1)(C) plea, this case also differs from Abney because there are plausible tactical reasons not to have sought a continuance. “[A]bsent a strategic decision by counsel, the ineffectiveness prong of Strickland turns on whether an objectively reasonable attorney would have [sought a continuance] because the issue had a reasonable likelihood of success.” Abney, 812 F.3d at 1088 (alterations in original) (quoting Payne v. Stansberry, 760 F.3d 10, 14 (D.C. Cir. 2014)). Because the Abney court found that the government's proffered strategic considerations were implausible, that court's deficiency analysis focused on the likelihood that a continuance would result in a sentence reduction. In this case, however, we need not get that far, because Ayers likely cannot “overcome the [strong] presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Id. at 1087 (citation omitted).

         There is evidence for two alternative courses of events in the record, either of which could have been the result of acceptable trial strategy. According to Ayers's § 2255 motion and his testimony at the evidentiary hearing, Ayers had asked Peterson to file a motion to continue the July 9 sentencing, but when he asked her on July 9 what had happened to the continuance she said “she did not file it because the judge would not have granted it because the case has been going on too long.” Mot. to Vacate at 5; accord Evid. Hr'g Tr. at 10:8-11:6. There is conflicting evidence on this claim, to say the least. Peterson testified that, while she could not specifically recall whether Ayers had requested a continuance, she never opposed a client's request for a continuance and she would have asked the Court for a continuance if he had asked her to do so. See Evid. Hr'g Tr. at 46:11-47:7, 58:8-:17, 60:8-:21, 62:17-:22. Ayers's appellate counsel, Beverly Dyer, claimed in response to questioning at the hearing that she “believe[d] he did say” that he had asked Peterson for a continuance and that she had not sought it. See id. at 99:11-:15, 100:23-101:1. But she was far from certain on this point. She also conflated Ayers telling her that he had asked for a continuance with Ayers telling her generally that he was upset he was not sentenced after the FSA.[2]

         Given the mixed evidence as to whether Ayers asked Peterson to request a continuance, Ayers argues that the Court need not decide whether he actually made the request, because Peterson should have sought a continuance in any event. Def.'s Br. at 11-12. As the Court finds Peterson's testimony more credible than Ayers's, the Court must indeed determine whether Peterson should have sought a continuance on her own. As part of this inquiry, however, Ayers must still rebut the government's proffered rationales for going forward with the July 9 sentencing. In its briefs and in the evidentiary hearings, the government has suggested that Peterson sought to take advantage of the uncertainty around what a final FSA might look like, so Ayers could benefit from the atmosphere of legislative change to the mandatory minimum regime without the possible cost to his ...

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