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McCalla v. United States

United States District Court, D. New Jersey

February 13, 2019

KASHEEF McCALLA, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION

          Freda L. Wolfson United States District Judge

         I.INTRODUCTION

         Petitioner, Kasheef McCalla (“McCalla” or “Petitioner”), is a federal prisoner proceeding pro se with a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. For the following reasons, McCalla's § 2255 motion is DENIED.

         II. BACKGROUND AND PLEADINGS

         A. The Underlying Criminal Proceeding

         In October 2011, McCalla and numerous others, all members of a gang known as the Detroit Boyz, were indicted before this Court on various criminal charges. See United States v. Barnett, Crim. No. 11-452 (FLW) (D.N.J.), Superseding Indict., ECF No. 150. Specifically, McCalla was indicted for conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine (Count One), for conspiracy to distribute and possess with intent to distribute 28 grams or more of crack cocaine (Count Two), conspiracy to distribute and possess with intent to distribute 100 grams or more of heroin (Count Three), and for distribution and possession with intent to distribute cocaine (Counts Twelve and Thirteen), all under 18 U.S.C. § 2 and 21 U.S.C. §§ 841(a), 841(b)(1)(A), and 846. Id. In April 2012, a grand jury returned a third superseding indictment, which, among other things, added a count against McCalla for possession of a firearm in furtherance of drug-trafficking crimes, under 18 U.S.C. §§ 2 and 924(c)(1)(A)(i) (Count Twenty-One). See Crim. No. 11-452, ECF No. 210. A subsequent Fourth Superseding Indictment added a count against McCalla for possession of a firearm equipped with a silencer, under 18 U.S.C. §§ 2, 924(c)(1)(A), and 924(c)(1)(B)(ii) (Count Twenty-Two). See Crim. No. 11-452, ECF No. 302.

         On May 18, 2012, McCalla pleaded guilty before this Court to Count Three, conspiracy to distribute heroin, and Count Twenty-One, possession of a firearm in furtherance of a drug-trafficking crime, in violation of 18 U.S.C. § 924(c). Crim. No. 11-452, ECF Nos. 320, 321, 322, 477. The plea agreement acknowledged that the conviction on Count Three carried a statutory minimum sentence of five years' imprisonment and a maximum sentence of 40 years' imprisonment, while Count Twenty-One carried a mandatory five-year sentence, to run consecutive to any other sentence. Id., ECF No. 322 at 2. In Schedule A to the Plea Agreement, McCalla and the U.S. Attorney's Office stipulated to the facts that there was a conspiracy to distribute between 400 and 700 grams of heroin and that McCalla attempted to obstruct the administration of justice. Id., Sched. A, ¶¶ 3 & 4. The parties agreed to the reasonableness of a sentence for the drug offense based on an adjusted offense level under the United States Sentencing Guidelines of 28 and that the firearms offense carried an additional sentence of 60 months. Id., Sched. A, ¶¶ 3-8.

         The plea agreement also included an agreement between McCalla and the U.S. Attorney's Office to waive rights of appeal so long as the sentence was within the stipulated guidelines, except to the extent either party wished to appeal the determination of McCalla's criminal-history category. (Id. at 4 & Sched. A ¶ 9.) Specifically, this provision stated, in relevant part,

Kasheef McCalla knows that he has and, except as noted below in this paragraph, voluntarily waives, the right to file any appeal, any collateral attack, or any other writ or motion, including but not limited to an appeal under 18 U.S.C. § 3742 or a motion under 28 U.S.C. § 2255, which challenges the sentence imposed by the sentencing court if that sentence falls within or below the Guidelines range calculated as set forth in the preceding paragraph. . . . . The parties reserve any right they may have under 18 U.S.C. § 3742 to appeal the sentencing court's determination of the criminal history category.

(Id., Sched. A ¶ 9.)

         During the plea hearing, McCalla confirmed that he understood the charges to which he was pleading and that he had read and understood the entire plea agreement. Crim. No. 11-452, Tr. of Plea (May 18, 2012), ECF No. 477, at 6, 11-14. McCalla explicitly represented that he had no questions for his attorney or the Court regarding the terms of the plea agreement. Id. at 13. McCalla confirmed that he understood he was waiving his right to file an appeal unless he received a sentence above the stipulated guidelines range or to challenge his criminal-history category. Id. at 14-16. He further expressed his understanding of the stipulated sentencing guidelines, the fact that the Court was not bound by those guidelines, and that any estimations as to a probable sentence could be inaccurate. Id. at 16-21. The Court explained to McCalla the elements of the charges to which he was pleading, and he confirmed that he understood these elements. Id. at 23-25. The Court further reviewed with McCalla the factual allegations specific to him and confirmed that he in fact performed the alleged acts, including possessing a firearm in connection with the conspiracy to traffic drugs. Id. at 25-26. McCalla confirmed that he was pleading guilty to these charges because he was actually guilty. Id. at 26-27. The Court found McCalla competent and capable of entering an informed plea and accepted his guilty plea. Id. at 28-29.

         The Court sentenced McCalla on November 14, 2012. See Crim. No. 11-452, ECF No. 388. Following a hearing, the Court issued a judgment sentencing him to 60 months' imprisonment on the drug charge and 60 months' imprisonment, to be served consecutively, on the firearms charge, for an aggregate sentence of 120 months. See Crim. No. 11-452, J., ECF No. 389. McCalla did not file a direct appeal from his conviction or sentence.

         B. The § 2255 Motion

         On November 18, 2013, McCalla, acting pro se, filed a § 2255 motion to vacate, set aside, or correct his sentence and alleged ineffective assistance of counsel on three bases. (See ECF No. 1.) He first argues that his counsel was ineffective for failing to properly investigate or challenge the firearms claim. (Id. at 3.) Second, McCalla argues that his counsel was ineffective in that he failed to file an appeal “after being told specifically by the defendant to do so.” (Id. at 4.) Finally, McCalla alleges that his counsel was ineffective “for failing to object to the improper calculation of the guidelines in this case.” (Id. at 5.) McCalla simultaneously filed a request for 60 days to amend his motion. (ECF No. 1-1.) He thereafter filed a supplemental motion to vacate, set aside, or correct a sentence, which again alleged that his counsel was ineffective for failing to review with McCalla the elements of the firearms violation under 18 U.S.C. § 924(c). (See ECF No. 4.) McCalla alleges that his counsel advised him that he did not have a good chance at trial, and that he subsequently entered into the plea agreement. (Id. at 4- 5.) He contends, however, that this advice was incorrect, as McCalla did not possess a weapon when he was “arrested for drugs.” (Id. at 5-6.) McCalla contends that, had his counsel explained the charge and related legal precedent to him properly, he would not have accepted the plea and would have proceeded to trial. (Id. at 6.)

         Respondent, the United States of America, filed an Answer to McCalla's Petition on February 28, 2014, but addressed only the claim raised in McCalla's supplemental petition, concerning his attorney's alleged failure to adequately explain the firearms charge. (See ECF No. 7.) The Court thereafter directed Respondent to file an Answer addressing all grounds raised by McCalla. (ECF Nos. 11 & 13.) Respondent filed an Amended Answer on January 12, 2017. (ECF No. 15.) McCalla filed a traverse on May 31, 2017. (ECF No. 21.)

         III. LEGAL STANDARDS

         A. Standard of Review

         To grant relief on a federal prisoner's motion to vacate, set aside or correct a sentence under 28 U.S.C. § 2255, the Court must find that “there has been such a denial or infringement of the constitutional rights of the prisoner as to render judgment vulnerable to collateral attack.” 28 U.S.C. § 2255(b). “In considering a motion to vacate a defendant's sentence, ‘the court must accept the truth of the movant's factual allegations unless they are clearly frivolous based on the existing record.'” United States v. Booth, 432 F.3d 542, 545 (3d Cir. 2005) (quoting Gov't of V.I. v. Forte, 865 F.2d 59, 62 (3d Cir. 1989)). A district court “is required to hold an evidentiary hearing ‘unless the motion and files and records of the case show conclusively that the movant is not entitled to relief.'” Id. (quoting Forte, 865 F.2d at 62).

         B. Ineffective ...


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