United States District Court, D. New Jersey
December 14, 2005.
KEITH WOOTEN, Petitioner,
UNITED STATES OF AMERICA, Respondent.
The opinion of the court was delivered by: GARRETT BROWN, District Judge
This matter comes before the Court upon the motion of pro se
Petitioner, Keith Wooten ("Petitioner"), to vacate, set aside or
correct his sentence pursuant to 28 U.S.C. § 2255 and Respondent
the United States of America's ("the Government") motion to
dismiss the petition. Having decided the matter based on the
parties' submissions and without oral argument pursuant to
Federal Rule of Civil Procedure 78, and for the reasons set forth
in this Memorandum Opinion, the petition is denied and dismissed
On September 21, 2000, a grand jury handed up a two-count
indictment against Petitioner. Count One charged Petitioner with
conspiracy to distribute and possess with intent to distribute
more than fifty grams of a mixture and substance containing
cocaine base, in violation of 21 U.S.C. §§ 841 and 846. Count Two
charged Petitioner with violation of 21 U.S.C. § 841(a)(1) and
18 U.S.C. § 2 for distribution and possession with intent to distribute more
than fifty grams of cocaine base.
The parties entered into a plea agreement on November 20, 2000.
A plea hearing was held on November 22, 2000. Pursuant to the
plea agreement, Petitioner plead guilty to the conspiracy charge
and the Government agreed to dismiss the second count. In the
plea agreement and at the hearing, Petitioner was advised that
the conspiracy charge carried a statutory minimum penalty of ten
years imprisonment and a maximum penalty of life imprisonment.
Petitioner was also informed that determination of the ultimate
sentence was one that rested within the sole discretion of the
The presentence investigation report ("PSR") was prepared by
the Probation Office. The PSR indicated that Petitioner's initial
base offense level was thirty-two. At sentencing, the Court
adjusted the offense level to thirty-seven after determining that
Petitioner qualified as a career offender under United States
Sentencing Guidelines ["U.S.S.G."] § 4B1.1. The Court then
reduced Petitioner's offense level by three points for early
acceptance of responsibility. (Id.). Based on an adjusted
offense level of thirty-four, and a criminal history category of
VI, the applicable guideline range was 262 to 327 months.
Petitioner was sentenced to a prison term of 262 months and five
years of supervised release. Petitioner subsequently appealed his
conviction and sentence to the Court of Appeals for the Third
Circuit. On May 28, 2004, the Third Circuit affirmed the
judgment. Petitioner did not file any subsequent appeals.
On June 23,2005, Petitioner filed the instant motion pursuant
to 28 U.S.C. § 2255 to vacate, correct or set aside his sentence.
A Notice and Order was entered on July 28, 2005, advising
Petitioner of his rights under United States v. Miller,
197 F.3d 644 (3d Cir. 1999) and directing him to inform the Court as
to how he wishes to proceed with his motion. Petitioner did not
file a response to the Notice, and on September 9, 2005, the Government
was advised to answer within forty-five days. In the interim,
Petitioner filed, and this Court granted, a deficient motion for
extension of time to file a memorandum of law in support of his
petition. Petitioner filed his memorandum on October 26, 2005.
The Government filed a motion to dismiss on September 30, 2005,
and a supplemental letter brief in support of its petition on
November 7, 2005. In his petition, Petitioner makes two
contentions: 1) ineffective assistance of counsel based on
counsel's alleged failure to advise him of his career offender
status and 2) improper reliance on his prior convictions to
enhance his sentence. The Court will address each argument in
A. Standard of Review For 28 U.S.C. § 2255
Section 2255 of Title 28, of the United States Code, permits a
court to vacate, correct or set aside a sentence that:
[W]as 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. However, "section 2255 `may not be employed to
relitigate questions which were raised and considered on direct
appeal.'" United States v. DeRewal, 10 F.3d 100
, 105 n. 4 (3d
Cir. 1993) (quoting Barton v. United States, 791 F.2d 265
(2d Cir. 1986), cert. denied, 511 U.S. 1033
if a petitioner has failed to raise an objection at the time of
trial and has also failed to raise the issue on direct appeal,
then collateral review of that claim is procedurally barred
unless the petitioner is able to show "cause" excusing his
procedural default and "actual prejudice" resulting from the
alleged error or violation. Henry v. United States,
913 F. Supp. 334, 336 (M.D. Pa. 1996), aff'd, 96 F.3d 1435 (3d Cir. 1996); see
also United States v. Essig, 10 F.3d 968
, 979 (3d Cir. 1993)
(holding that the "cause and prejudice" standard set forth in
United States v. Frady, 456 U.S. 152
(1982), "applies to § 2255
proceedings in which a petitioner seeks relief from alleged
errors in connection with his sentence that he has not directly
appealed."). However, a petitioner need not demonstrate cause and
prejudice when he raises a claim of ineffective assistance of
counsel for the first time in a collateral attack. DeRewal,
10 F.3d at 104.
B. Ineffective Assistance of Counsel
Petitioner claims that he was denied effective assistance of
counsel because he was not advised of the potential applicability
of the career offender provision prior to his acceptance of the
plea agreement. (Pet.'s June 20, 2005 Br. at 7). Petitioner
further asserts that but for counsel's failure to advise him of
this alleged error, he would not have plead guilty and would have
proceeded to trial. (Pet.'s Oct. 25, 2005 Br. at 7).
A claim of ineffective assistance of counsel flows from the
Sixth Amendment right to counsel, which exists "in order to
protect the fundamental right to a fair trial." Lockhart v.
Fretwell, 506 U.S. 364, 368 (1993) (internal citation and
quotation marks omitted). In Strickland v. Washington,
466 U.S. 668 (1984), the United States Supreme Court established the
standard for reviewing ineffective assistance of counsel claims.
In order for a petitioner to succeed on such a claim, he must
establish that: (1) his attorney's performance was objectively
deficient, and (2) that such deficient performance prejudiced his
defense. Id. at 687. When evaluating performance, courts must
examine the entire proceedings and determine whether, in light of
all the circumstances, counsel's conduct was outside the wide
range of professionally competent assistance. See Kimmelmann v. Morrison, 477 U.S. 365, 386 (1986). With respect
to the prejudice inquiry; whether the outcome may have been
different but for counsel's error is not dispositive, rather the
court must focus on whether the result of the proceeding was
fundamentally unfair or unreliable. Lockhart,
506 U.S. at 369-370.
The argument Petitioner raises in the instant motion has been
squarely rejected by a number of courts, including this Court in
Nwachia v. United States, 891 F. Supp. 189 (D.N.J.
1995).*fn1 In Nwachia, the petitioner argued that he was
denied "effective assistance of counsel because his attorney
failed to explain to petitioner before his plea of guilty that he
might be classified as a career offender and be subject to
enhanced penalties under the sentencing guidelines." Id. at 196
(internal quotations omitted). Relying on the persuasive
reasoning set forth by the Eighth Circuit in Thomas v. United
States, 27 F.3d 321 (8th Cir. 1994), the Court rejected
Petitioner's argument as a matter of law.
The Court noted that the petitioner was informed during the
plea hearing of the impossibility in predicting his sentence
until after the PSR was finalized. Nwachia,
891 F. Supp. at 198. Furthermore, Petitioner also stated that he understood it
was within the judge's discretion to impose a sentence that was
either more or less severe than that called for by the
guidelines. The Court also noted that once Petitioner was
classified as a career offender, Petitioner did not voice any
objection to the classification and "did not indicate any desire
to withdraw his plea at the time of sentencing based upon this
classification." Id. at 199. In light of these circumstances,
the Court concluded that it was "abundantly clear that petitioner
has failed to demonstrate that his counsel's representation `fell below an objective standard of reasonableness.'" Id. The
Court also concluded that an evidentiary hearing was not required
because Petitioner's claim failed as a matter of law.
In the present case, the record before the Court likewise
demonstrates that Petitioner understood that by pleading guilty,
he faced the possibility of life imprisonment and that the
ultimate sentence could not be determined until after the PSR was
completed. Specifically, the plea agreement which was signed by
Petitioner states that the sentence to be imposed remained within
the sole discretion of the judge, that the judge may "impose the
maximum term of imprisonment and the maximum fine" consistent
with the sentencing guidelines, and that the Government "cannot
and does not make any representation or promise as to what
guideline range will be found applicable to Keith Wooten, or as
to what sentence Keith Wooten ultimately will receive." (Plea
Agreement at 2). Additionally, the Rule 11 form likewise signed
by Petitioner reflects his understanding that his sentence cannot
be determined until after the PSR has been completed and both
Petitioner and the Government have had an opportunity to
challenge any facts included in the PSR. (PSR at 5).
Significantly, Petitioner indicated his understanding at the plea
hearing based on the following exchange that took place:
THE COURT: Okay. Now, you tell me also that you
understand you'll be sentenced according to
sentencing guidelines, discussed with your attorney
how they might apply to your case, and understand the
Court will not be able to determine the sentence for
your case until after the presentence report has been
completed and both you and the Government have had an
opportunity to read the report and challenge any
facts reported by the probation officer. Even after
it's been determined which guideline range applies to
your case, this Court has the authority to impose a
sentence more severe than the statutory maximum or
less severe than that provided by the guidelines.
Parole has been abolished. If you are sentenced to
prison, you will not be released on parole and you'll
have no right to withdraw your plea on the grounds
that anyone's prediction as to guideline range or
expectation of sentence proves inaccurate. Do you understand what I just said to you?
MR. WOOTEN: Yes.
(Tr. of Plea Hr'g at 6:19-7:11).
Furthermore, as was the case in Nwachia, upon being
classified as a career offender at the sentencing hearing,
Petitioner did not voice any objection, nor did he move to
withdraw his plea as a result of this classification. See Thomas
v. United States, 27 F.3d 321, 326 (8th Cir. 1994) (rejecting
petitioner's claim of ineffective assistance of counsel based on
attorney's failure to advise him of career offender status and
further noting that if failure to advise petitioner of "the
possibility that he might be treated as a career offender
constituted ineffective assistance of counsel, one would have
expected [petitioner] to have raised the issue at [the sentencing
hearing]"). Given these facts, Petitioner fails to meet the first
prong of the Strickland test.
Although the Court need not address the prejudice inquiry after
having concluded that Petitioner fails to satisfy the first
requirement of the Strickland test, the Court nonetheless
concludes that Petitioner cannot demonstrate that his attorney's
performance prejudiced his defense. By accepting the plea
agreement, Petitioner's exposure was significantly reduced given
the three point reduction for acceptance of responsibility which
resulted in a prison term of 262 months. Had Petitioner rejected
the plea and proceeded to trial as he now contends, Petitioner
faced substantially greater penalties, including life
imprisonment. Moreover, any misstatements or omissions allegedly
made by Petitioner's attorney was cured by the Court during the
plea hearing when it informed Petitioner of the potential
sentence he faced by pleading guilty. See United States v.
Foster, 68 F.3d 86 (4th Cir. 1995) ("In an attempt to establish
prejudice, [the petitioner] maintains that if he had been
correctly told that he could be sentenced as a career offender,
he would not have pleaded guilty, but would have proceeded to trial. However, any misinformation [the
petitioner] may have received from his attorney was corrected by
the trial court at the Rule 11 hearing, and thus [the petitioner]
was not prejudiced."). As such, Petitioner's attempt to establish
Accordingly, the Court rejects Petitioner's claim of
ineffective assistance of counsel. The Court further concludes
that an evidentiary hearing is not warranted in this instance
since Petitioner's claim fails as a matter of law, and no
relevant disputed factual issues remain. Consequently,
Petitioner's motion is denied on this basis.
C. Petitioner's Prior Convictions
Next, Petitioner states in a conclusory manner: "Mr. Wooten
submits that he did not admit to the fact of his prior
convictions nor were they submitted to any jury. As such, Mr.
Wooten presents that the district court violated his Sixth
Amendment right by increasing his sentence based on those facts."
(Pet.'s Oct. 25, 2005 Br. at 7). To the extent Petitioner is
raising a claim under United States v. Booker, 125 S.Ct. 738
(2005), this argument likewise fails.
The Supreme Court held in Booker that "[a]ny fact (other than
a prior conviction) which is necessary to support a sentence
exceeding the maximum authorized by the facts established by a
plea of guilty or a jury verdict must be admitted by the
defendant or proved to a jury beyond a reasonable doubt." Id.
at 756. The Third Circuit recently held that "Booker does not
apply retroactively to initial motions under § 2255 where the
judgment was final as of January 12, 2005, the date Booker
issued." Lloyd v. United States, 407 F.3d 608, 616 (3d Cir.
The Court first notes that the rule of law set forth in
Booker does not apply to prior convictions which is precisely
what Petitioner relies upon in support of this argument.
Booker, 125 S.Ct. at 756. Even if it did, however, Booker would not apply
retroactively to Petitioner's § 2255 motion. Here, Petitioner
appealed his sentence to the Third Circuit on April 12, 2001, and
the court affirmed his conviction on May 28, 2004. Petitioner did
not file a writ of certiorari in the Supreme Court. Thus,
judgment in Petitioner's criminal case became final ninety days
after May 28, 2004. See Kapral v. United States, 166 F.3d 565,
570-71 (3d. Cir. 1999) (noting that a "defendant has 90 days from
the date on which the court of appeals affirms the judgment of
conviction to file a petition for a writ of certiorari" and "if a
defendant does not file a certiorari petition, the judgment of
conviction does not become `final' until the time for seeking
certiorari review expires"). Therefore, judgment of Petitioner's
criminal conviction and sentencing became final well before the
issuance of Booker. Consequently, pursuant to Lloyd v. United
States, 407 F.3d 608 (3d Cir. 2005), Booker does not apply and
Petitioner's argument also fails on this basis.*fn2 III. CONCLUSION
Accordingly, Petitioner's motion to vacate, correct or set
aside his sentence pursuant to 28 U.S.C. § 2255 is denied and the
Government's motion to dismiss is granted. An appropriate form of
Order accompanies this Memorandum Opinion.
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