UNITED STATES оf America, Plaintiff-Appellee, v. Calvin Douglas DYESS, a/k/a Carlos, a/k/a Calcutta, a/k/a Rawmel, Defendant-Appellant.
No. 11-7335.
United States Court of Appeals, Fourth Circuit.
Argued: May 16, 2013. Decided: Sept. 16, 2013.
730 F.3d 354
I understand the Majority‘s policy concern that limiting the amount of reimbursement to what was actually expended on Konrad‘s behalf would allow Konrad to “benefit from his incomplete, undervalued or untruthful financial disclosures by receiving legal services at a fraction of the cost.” Majority typescript at 352. However, individuals who knowingly provide false or incomplete information on a sworn financial affidavit may be charged with perjury, a felony punished by up to five years in prison. See, United States v. Page, Nos. 10-CR-30053-04-MJR, 10-30136-MJR, 2011 WL 2224674 (S.D.Ill. June 8, 2011);
Furthermore, a number of district courts faced with this issue have ordered reimbursement in an amount meant to approximate what it actually cost the Government to represent the defendant. See United States v. Stevenson, Criminal No. 10-120, 2012 WL 1038832, at *4 (W.D.Pa. Mar. 28, 2012) (ordering defendant represented by Federal Defenders to reimburse the clerk of court in an amount equal to “the costs of his rеpresentation by the Federal Public Defender‘s Office“); Page, 2011 WL 2224674 (ordering defendant represented by CJA-appointed attorney to reimburse the clerk of court the amount that “was expended from the Treasury for CJA representation“); United States v. Bedoya, No. 89 CR. 803(JMC), 1990 WL 194934, at *4 (S.D.N.Y. Nov. 28, 1990) (ordering defendant represented by CJA-appointed attorney to reimburse the clerk of court in an amount equal to the “costs of legal fees expended for his defense under the [CJA]“). Accordingly, I would remand the case to the District Court with instructions to reduce the amount of reimbursement to an amount approximate to what it cost the Federal Defenders to represent Konrad in this case.2
Before NIEMEYER, GREGORY, and SHEDD, Circuit Judges.
Affirmed by published opinion. Judge SHEDD wrote the opinion in which Judge NIEMEYER joined and in which Judge GREGORY joined as to Parts I, II, and IV. Judge GREGORY wrote a dissenting opinion as to Part III.
SHEDD, Circuit Judge:
Calvin Dyess pled guilty to conspiracy to distribute cocaine, cocaine base, and marijuana, in violation of
I.
The facts and procedural history of Dyess’ case are thoroughly recounted in our earlier opinion. See Dyess I at 226-33. Briefly, and as relevant here, Dyess аnd several co-conspirators were indicted in a thirteen-count indictment arising from their operation of a large-scale drug conspiracy in Charleston, West Virginia, from 1995 to 1998.1 Before trial, the
A presentence report (PSR) was prepared for Dyess, finding that he was responsible for 20 kilograms of cocaine, 80 kilograms of cocaine base, and 272.16 kilograms of marijuana. These drug amounts yielded a base-offense level of 38 and, when coupled with several enhancements, resulted in a guidelines range of life imprisonment. Dyess objected to the drug amounts and, at a contested sentencing hearing, the district court heard from multiple witnesses about the scope of Dyess’ drug enterprise. For example, one witness, Leon Mitchell, testified that he and Dyess handled between 75 and 100 kilograms of cocaine, half of which they cooked into crack cocaine. The district court upheld the PSR‘s findings and accordingly sentenced Dyess to life.
Dyess timely appealed. While Dyess’ appeal was pending, the Government was contacted by Rachel Ursala Rader, Dyess’ wife during the conspiracy. Rader informed the Assistant U.S. Attorney (AUSA) that, during the investigation, she had engaged in a sexual relationship with William Hart, a detective and one of the lead investigators in Dyess’ case. Rader also informed the AUSA that Hart had let her keep certain drug proceeds that she offered to turn over and had helped to craft her testimony at the sentencing hearing. When presented with this information, we issued an order remanding the case for appropriate proceedings.
On remand, Dyess moved to dismiss the indictment for government misconduct, to withdraw his plea, and to be resentenced.2 The district court denied the first two requests and deferred ruling on the motion for resentencing pending an evidentiary hearing. Prior to this evidentiary hearing, however, the district judge (Judge Haden) passed away. The case was reassigned to District Judge Faber, who then held an evidentiary hearing limited to the issue of whether Hart‘s misconduct and the perjury of Rader (and several others) at the sentencing affected Dyess’ sentence. The court explained that if the answer was “yes,” a new sentencing would be hеld. After the hearing, which included testimony from witnesses impacted by Hart‘s misconduct, the district court found the tainted testimony did not affect Dyess’ sentence and declined to hold a resentencing. Dyess appealed, and we affirmed. Dyess I, 478 F.3d at 227.
In 2008, Dyess filed a motion to vacate his sentence under
II.
Dyess’ first contention is that the district court erred in failing to address all of his
Dyess claims that the court erred in considering only the claims in the amended complaint and that the case should be remanded for consideration of the roughly 40 claims raised in his initial
If it plainly appears from the motion and any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion.
Thus, “vague and conclusory allegations contained in a
III.
Dyess next claims that his sentence violates Apprendi because the indictment did not allege a specific drug quantity. Under Apprendi, “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490. In United States v. Promise, 255 F.3d 150, 156-57 (4th Cir. 2001) (en banc), we held that Apprendi requires drug amounts under
failure to supply a drug amount limits his maximum sentence to 20 years.4
Dyess’ argument fails for two reasons. First, it is well settled that Dyess cannot “circumvent a proper ruling ... on direct appeal by re-raising the same challenge in a
In United States v. Cotton, 535 U.S. 625, 633, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002), the Court held that Apprendi errors under
IV.
Dyess’ remaining claims challenge the effectiveness of his counsel, both at the time he pled guilty and on remand from this court. In order to establish ineffective assistance, Dyess must show “(1) that his attorney‘s performance ‘fell below an objective stаndard of reasonableness’ and (2) that he experienced prejudice as a result, meaning that there exists ‘a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.‘” United States v. Fugit, 703 F.3d 248, 259 (4th Cir. 2012) (quoting Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).
A.
Dyess’ first two ineffective assistance claims allege that trial counsel was ineffective for failing to object to the lack of drug quantity in the indictment and for failing to discover Hart‘s misconduct. These claims both relate to Dyess’ decision to plead guilty. “In that situation, a person must demonstrate ‘a reasonable probability that, but for counsel‘s errors, he would not have pleaded guilty and would have insisted on going to trial.‘” Fugit, 703 F.3d at 259 (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)). The Supreme Court recently reaffirmed that “[s]urmounting Strickland‘s high bar is never an easy task” in the guilty-plea setting. Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 1485, 176 L.Ed.2d 284 (2010). Thus, Dyess must convince us that the decision to go to trial “would have been rational under the circumstances.” Id. Dyess’ “subjective preferences, therefore, are not dispositive; base. As discussed above, one witness testified that the conspiracy involved at least 75 to 100 kilograms of cocaine, of which half was cooked into cocaine base.
1.
Dyess’ first claim alleges that trial counsel failed to investigate and discover Hart‘s affair with Dyess’ wife prior to Dyess’ guilty plea. Dyess, hоwever, raised a variation on this claim in his direct appeal, arguing that his attorney “rendered ineffective assistance by failing to uncover Hart and Miss Rader‘s love affair and anticipate the impact it would have at sentencing.” Dyess I, 478 F.3d at 238. We rejected Dyess’ claim, finding that “the federal prosecutors” had “no knowledge” of the affair until well after sentencing, and Dyess “offer[ed] no indication as to why his attorney should be expected to have some special knowledge of the situation.” Id.
Even assuming our earlier conclusion does not bar this claim, it lacks merit. We have indicated that “[a]lthough counsel should conduct a reasonable investigation into potential defenses, Strickland does not impose a constitutional requirement that counsel uncover every scrap of evidence that could conceivably help their client.” Green v. French, 143 F.3d 865, 892 (4th Cir. 1998) overruled on other grounds by Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000): Dyess claims that, after his guilty plea but prior to sentencing, he learned from fellow inmates that Hart and Rader had been seen holding hands at nightclubs. (J.A. 852). Dyess alleges that he told his counsel this fact on two occasions, including once after seeing Hart at the jail. According to Dyess, counsel hired an investigator but was unable to substantiate Dyess’ claim and declined to raise the issue at sentencing without concrete evidence. Dyess also alleges that counsel held “meetings” with him “to develop a plan of action, while Dyess told them all that he could learn.” (J.A. 852). Dyess’ counsel thus conducted an appropriate investigation—all that Strickland requires. While a failure to investigate a “critical” witness can be ineffective assistance, see Huffington v. Nuth, 140 F.3d 572, 580 (4th Cir. 1998), we have never held that an attorney‘s hiring of an investigator who fails to discover evidence renders that attorney ineffective. Although we now know that Dyess’ suspicions were true, that does not make counsel‘s failure to uncover the affair in 1999 ineffective assistance.
Moreover, Dyess cannot show prejudice. Dyess was facing a potential life sentence; he pled guilty shortly after the Government informed him that his only opportunity to avoid a life sentence was to be acquitted or to plead guilty and offer substantial assistance in exchange for a sentence reduction.7 Dyess then failed to offer assistance. The Govеrnment had overwhelming evidence of Dyess’ guilt—his arrest and prosecution were the result of a long investigation complete with wiretaps, drug buys, and co-conspirator testimony. Dyess also received a substantial benefit from pleading guilty—the Government dismissed nine of the eleven counts against him, one of which carried a 20-year mandatory minimum. Cf. Fugit, 703 F.3d at 260-61 (finding no prejudice from alleged ineffective assistance where Government would have offered overwhelming
2.
We also find Dyess’ second ineffective claim against trial counsel lacks merit. Dyess claims that, in light of Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), counsel should have recognized that drug weights were an element of the offense under
Dyess argues that, based on Jones, a reasonably prudent attorney would have raised the argument that drug weight was an element of the offense under
Jones was decided after Dyess’ superseding indictment but prior to his guilty plea and sentencing. At the time Jones was decided, “every federal circuit court considered drug quantity to be a sentencing factor,” United States v. Sanders, 247 F.3d 139, 147 (4th Cir. 2001), a view courts adhered to even after Jones, see United States v. Taylor, 210 F.3d 311, 320 (5th Cir. 2000); United States v. Smith, 205 F.3d 1336, 2000 WL 139250 (4th Cir. 2000) (unpublished). Indeed, it was the “universal practice” to contest drug weights at sentencing. United States v. Carrington, 301 F.3d 204, 212 (4th Cir. 2002). We did not extend Jones and Apprendi to
Moreover, Dyess again cannot show that any (assumed) deficient performance by trial counsel prejudiced him. As the Gov-
B.
Dyess’ final two claims allege that remand сounsel was ineffective. We find both of these claims to be without merit.
1.
Dyess first argues that remand counsel failed to call all of the necessary witnesses at the evidentiary hearing involving Hart‘s misconduct. As noted above, in Dyess’ direct appeal, we remanded for appropriate proceedings. On remand, Dyess moved for, among other relief, a resentencing. The district court granted an evidentiary hearing to address any taint at the sentencing, but “defer[red] decision on Defendants’ motion for resentencing until after the evidentiary hearing.” (J.A. 577). The only witnesses whose testimony was possibly tainted by Hart‘s misconduct were Rader, Hart, Hart‘s partner Detective Henderson, Lori Cummings (Dyess’ girlfriend), and Benjamin Green.8
At the opening of the hearing the district court (Judge Faber) reiterated the hearing‘s limited scope:
[I]t seems to me the inquiry is really pretty simple. Maybe I‘m oversimplifying things, but we have a record of the sentencing, we have a record of the evidence that was before Judge Haden that he based his ruling on. It seems to me that my task—and you can correct me if you disagree with this, and I hope you will. My task is to look at that in the light of what we know now and see if he relied, to any extent, on any of the information that we now know to be false or tainted [...] It seems to me that‘s the simple inquiry. And we know—we have a record of what he looked at, we have a record of the information that‘s come to light since then, and the issue is whether the bad information was considered by him or not.
(J.A. 590).
At the evidentiary hearing, Dyess’ counsel called Rader, Hart, Henderson, Cummings, Green,9 and the probation officer. The AUSA who originally prosecuted Dyess also testified. Thus, all of the witnesses relevant to the evidentiary hearing were called. Dyess’ claim is targeted at the fact that the evidentiary hearing was limited in scope and did not encompass all of the voluminous testimony from his first sentencing hearing. That was the district court‘s decision, one which we affirmed on direct appeal.
Moreover, we give counsel wide latitude in determining which witnesses to call as part of their trial strategy. See Wilson v. Greene, 155 F.3d 396, 404 (4th Cir. 1998) (quoting Pruett v. Thompson, 996 F.2d 1560, 1571 n. 9 (4th Cir. 1993))
2.
Dyess’ second allegation against remand counsel fares no better. Dyess contends that remand counsel failed to “effectively challenge” his guilty plea on remand. Dyess moved to withdraw his guilty plea on remand, arguing that it was not knowing and voluntary and that the Government breached the agreement. The district court denied this motion, аnd we affirmed. Dyess I, 478 F.3d at 237. We found that Dyess’ motion was “post-sentencing” and could succeed only if the “underlying plea proceedings were marred by a fundamental defect that inherently resulted in a complete miscarriage of justice, or in omissions inconsistent with rudimentary demands of fair procedure.” Id. (internal quotation marks omitted). Applying this standard, we affirmed the denial of the motion. Importantly, we rejected Dyess’ claim that his plea was unknowing because he faced a life sentence and because trial counsel failed to uncover the Hart/Rader relationship.
In his
Moreover, even assuming the claim is properly before us, it fails on the merits because Dyess cannot show prejudice. Although Dyess’ counsel did not raise Apprendi as a ground for withdrawing his guilty plea, Dyess, acting pro se, did raise that argument, and the court rejected it. (J.A. 561) (noting “[Dyess] argues pro se that his plea was not knowing because no drug quantity was stated in the indictment” and rejecting the argument in light of Cotton). Dyess has not shown how that result would have differed if counsel had made the argument, and it is unclear that it would have. See United States v. Martinez, 277 F.3d 517, 533 (4th Cir. 2002) (declining to recognize Apprendi error during Rule 11 colloquy because plea resulted in significant benefits to defendant, indicating no reasonable belief that defendant would have withdrawn plea). This claim thus also lacks merit.
V.
For the foregoing reasons, we affirm the district court‘s denial of Calvin Dyess’
AFFIRMED.
GREGORY, Circuit Judge, dissenting as to Part III:
When we decided this case in 2007 on direct appeal, the Supreme Court had made clear that any fact increasing the maximum penalty for a crime must be
The omission is particularly odd given that Judge Haden recognized the viability of Dyess‘s argument. When we first remanded this case for further proceedings after the revelations of government misconduct, Judge Haden explained that “[b]ecause the superseding indictment in these cases did not state a drug quantity, at any resentencing this Court is limited to the twenty-year statutory maximum of
Even though the majority holds that Dyess cannot raise his Apprendi claim in his habeas petition, it offers an analysis of the merits of the claim. That analysis begins with the assertion that we should apply plain error review because “Dyess waited until the remand from this court to raise the issue....” Ante 361. The majority treats this case as if it was a run-of-the-mill drug prosecution, giving insufficient weight to miscоnduct by the lead investigator and key witness for the prosecution. Our remand in response to revelations of this pervasive misconduct amounted to pressing a reset button—it thrust the case back into a pre-sentencing posture. Because Dyess raised his Apprendi argument with particularity while the case was in this pre-sentencing posture, we are obliged to apply the harmless error standard of review.
Under the harmless error standard, a defendant is “entitled to relief if the error has affected his substantial rights.” United States v. Rodriguez, 433 F.3d 411, 416
When a sentence violates Apprendi because the underlying indictment fails to allege drug quantities sufficient to raise the maximum sentence, a defendant‘s substantial rights are violated. Promise, 255 F.3d at 160. Here, the indictment did not allege a drug quantity. As Judge Haden indicated, Dyess‘s maximum sentence should therefore have been twenty years, not life.
Because the government assumes that plain error review should apply, it makes no explicit attempt on appeal to carry its high burden of proving that the error was harmless beyond a reasonable doubt. However, the government argues that Dyess‘s admissions in his plea agreement offer adequate support for his life sentence. Normally, a defendant‘s admission of requisite drug quantities in a plea agreement cures Apprendi error in the indictment. See, e.g., United States v. Flagg, 481 F.3d 946, 950 (7th Cir. 2007); United States v. Silva, 247 F.3d 1051, 1060 (9th Cir. 2001). But, once again, this is far from being a normal case. Judge Haden, who had been on the bench for some thirty-four years before he passed away, observed upon remand that “[t]his case presents questions of ethical conduct and the appearance of impropriety ... unprecedented in this Court‘s experience. The lead AUSA who prosecuted this case also managed case agents and witnesses who allegedly (and by their own admissions) stole drug proceeds, suborned perjury, lied under oath, and tampered with witnesses.” United States v. Dyess, 231 F.Supp.2d 493, 495 (S.D.W.Va. 2002). The lead investigator made a full-fledged and successful effort to woo Dyess‘s wife, Ursala Rader, even marrying her after Dyess was sentenced. J.A. 624. He literally crafted exhibits to illustrate drug quantity that Rader and he referred to while giving testimony at Dyess‘s sentencing hearing. J.A. 621-23.
After learning of the lead investigator‘s misconduct, we remanded the case for further proceedings. J.A. 508. Rather than testify at an evidentiary hearing designed to gauge the impact his misconduct had on the evidence, the lead investigator claimed his Fifth Amendment right to remain silent. Amazingly, it appears the government did not compel his testimony by providing immunity. Nor did the government compel testimony after he entered a guilty plea to the charge against him—misappropriation of government funds of $1,000 or less.2 As a result, we have never truly learned the extent to which his misconduct tainted the evidence against Dyess.
Given that Dyess‘s admissions took place in the context of rampant government wrongdoing, they should not prevent us from nоticing Apprendi error. The fairness of a plea goes well beyond a question of guilt or innocence. See Stephanos Bibas, Regulating the Plea-Bargaining Market: From Caveat Emptor to Consumer Protection, 99 Cal. L.Rev. 1117, 1139–40 (2011). When a defendant makes a decision to plea, he must weigh the “advantages and disadvantages of a plea agreement” against other possible scenarios. See Padilla v. Kentucky, 559 U.S. 356, 130
Even if plain error applies to this case, as the majority contends, Cotton does not control the outcome. The majority correctly explains that in Cotton, the Supreme Court declined to notice plain error under the fourth prong of the test put forward in United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), because evidence of drug quantity was “overwhelming,” and “essentially uncontroverted.” Ante 361 (quoting Cotton, 535 U.S. at 633). Ultimately, the Cotton Court found that while there may have been plain Apprendi error, there was “no basis for concluding that the error seriously affected the fairness, integrity, or public reputation of judicial proceedings.” Cotton, 535 U.S. at 632-33.
Unlike in Cotton, the pervasive nature of the misconduct committed by the government in this case has discredited a substantial amount of the evidence against Dyess. For instance, Rader admitted that she lied when she testified that she created the demonstrative exhibits illustrating the quantity of drugs she had observed Dyess handle. See J.A. 89-94, 621-24. As mentioned above, the lead investigator created those exhibits. J.A. 621. He then coached Rader on how to testify about the exhibits, and became angry and abusive when she told him she could not remember or did not know how much drugs she had seen. J.A. 623-24.
While we may have affirmed the district court‘s finding that sufficient untainted evidence remained to sustain the conviction, it is undeniable that government misconduct in this case severely weakened the evidence against Dyess. The remaining untainted evidence is not “overwhelming” and “essentially uncontroverted.” See Cotton, 535 U.S. at 633. Further, it is hypocrisy of the first order for the government to proclaim that we should not notice plain error because there has been no damage to the “fairness, integrity or public reputation of judicial proceedings.” See id. The lead investigator‘s behavior and misconduct undermined the judicial proceedings in this case. The best way for thе prosecution to repair that damage would have been to concede to resentencing in a conciliatory effort to condemn this mess to history. Instead, the government charges headlong towards securing a life sentence under these troubling circumstances. I cannot condone this. I respectfully dissent.
Bobby BLAND; Daniel Ray Carter, Jr.; David W. Dixon; Robert W. McCoy; John C. Sandhofer; Debra H. Woodward, Plaintiffs-Appellants, v. B.J. ROBERTS, individually and in his official capacity as Sheriff of the City of Hampton, Virginia, Defendant-Appellee. American Civil Liberties Union; American Civil Liberties Union of Virginia Foundation; Facebook, Inc.; National Association Of Police Organizations, Amici Supporting Appellants. No. 12-1671. United States Court of Appeals, Fourth Circuit. Argued: May 16, 2013. Decided: Sept. 18, 2013. As Amеnded Sept. 23, 2013.