[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED ________________________ U.S. COURT OF APPEALS ELEVENTH CIRCUIT No. 09-13013 SEPTEMBER 23, 2011 ________________________ JOHN LEY CLERK D. C. Docket Nos. 08-00051-CV-4, 05-00283-CR-4
JAMES CASWELL JONES,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court for the Southern District of Georgia _________________________
(September 23, 2011)
Before HULL and ANDERSON, Circuit Judges, and VINSON,* District Judge.
PER CURIAM:
* Honorable C. Roger Vinson, United States District Judge for the Northern District of Florida, sitting by designation. James Caswell Jones, a federal prisoner currently serving a term of
supervised release, appeals pro se the district court’s partial denial of his motion to
vacate under 28 U.S.C. § 2255, and his subsequent revised sentence.
I. JONES’S ARREST AND TRIAL
On May 31, 2002, a Georgia detective arrested Jones on an outstanding
warrant for failure to pay child support. While searching Jones and his vehicle
incident to arrest, the officer found marijuana, crack cocaine, and $452 in cash.
On June 1, 2002, Jones appeared before a Georgia magistrate judge for an
initial appearance and bond hearing on the state charges of intent to distribute
marijuana and cocaine. Jones filled out a form requesting the representation of
counsel and stating that he could afford to retain counsel.
After the hearing, the arresting officer advised Jones of his Miranda rights,
obtained a signed waiver of those rights, and questioned Jones about the pending
state charges. Jones then confessed to possessing the drugs and cash seized during
his arrest and revealed that he had “a little bit of marijuana” at his house. Although
Jones refused to consent to a search of his home, the officer used Jones’s
admission to obtain a search warrant for Jones’s home. During the subsequent
search of Jones’s home, the officer found marijuana, two shotguns, and a 9mm
pistol.
2 After the discovery of the firearms, a federal grand jury indicted Jones for
possession with intent to distribute crack cocaine in violation of 21 U.S.C.
§ 841(a)(1) (Count One), possession with intent to distribute marijuana in violation
of 21 U.S.C. § 841(a)(1) (Count Two), and possession of a firearm by a convicted
felon in violation of 18 U.S.C. § 922(g)(1) (Count Three). Following a jury trial
in 2006, Jones was convicted on all three counts. The district court imposed
concurrent sentences of 77 months’ imprisonment as to each count.1 The district
court also imposed 6 years of supervised release on each of Counts One and Two,2
and 3 years of supervised release on Count Three, all to be served concurrently.
Although Jones’s counsel moved in the district court to suppress Jones’s
post-arraignment statements to the arresting officer, the district court denied the
motion as untimely. In affirming Jones’s convictions on direct appeal, we held that
the district court properly denied Jones’s motion to suppress as untimely filed. See
United States v. Jones, 241 F. App’x 676, 678 (11th Cir. 2007).
1 In 2008, the district court reduced Jones’s original sentence to 70 months’ imprisonment as a result of a retroactive amendment to the Guidelines regarding quantities of crack cocaine. See 18 U.S.C. § 3582(c)(2). 2 The parties apparently agree that Jones’s presentence investigation report (“PSI”) and the district court (by adopting the PSI’s Guidelines calculations at sentencing) erroneously determined that Jones was subject to a mandatory term of supervised release of at least six years for Counts One and Two under 21 U.S.C. § 841(b)(1)(C), because he had a prior felony drug conviction. However, the government never filed the notice required by 21 U.S.C. § 851 and therefore could not seek an enhanced penalty based on the prior conviction. See Perez v. United States, 249 F.3d 1261, 1264-65 (11th Cir. 2001). Accordingly, Jones was properly subject to a term of supervised release of not less than three years. See 21 U.S.C. § 841(b)(1)(C).
3 II. JONES’S § 2255 MOTION
Following his direct appeal, Jones in 2008 filed a motion to vacate under 28
U.S.C. § 2255 alleging ineffective assistance of trial counsel, based on his
counsel’s failure to file a timely motion to suppress Jones’s post-arrest statements
and the evidence seized from his home during the execution of the search warrant
that was obtained based on those statements. In February 2009, the district court
adopted the magistrate judge’s report finding that Jones’s trial counsel was
ineffective for failing to timely move to suppress Jones’s post-arrest statements and
that counsel’s ineffectiveness was prejudicial with respect to Jones’s conviction on
Count Three (the firearm charge). The district court ruled that the officer’s
subsequent interrogation, after Jones invoked his right to counsel, violated
Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404 (1986) (holding that, if police
initiate interrogation after a defendant invokes – at an arraignment or similar
proceeding – his right to counsel, any subsequent waiver of the right to counsel for
that police-initiated interrogation is invalid). Because Jones could not have waived
his right to counsel, the arresting officer’s interrogation of Jones and subsequent
search of Jones’s home were invalid under Jackson. In other words, if Jones’s trial
counsel had timely moved to suppress Jones’s post arrest statements to the
arresting officer, the motion to suppress would have been granted under Jackson.
4 Accordingly, the district court granted the § 2255 motion to vacate with
respect to Jones’s firearm conviction (Count Three), because the firearms were
seized during the search of Jones’s home following the illegal interrogation.
Nevertheless, the district court denied the motion to vacate Jones’s drug
convictions (Counts One and Two) on the ground that Jones failed to show
prejudice because the government “offered sufficient untainted evidence of Jones’s
guilt” to sustain the drug convictions. The district court then preliminarily
determined that Jones’s guidelines sentencing range without the firearm count
would be 33 to 41 months’ imprisonment.
III. NEW SENTENCE IN ABSENTIA
In a written, April 20, 2009 order issued without a hearing and without the
benefit of briefing, the district court vacated Jones’s original Judgment and
Conviction in the underlying criminal case. The district court then stated that it
had considered the revised guidelines range and the 18 U.S.C. § 3553(a) factors
and sentenced Jones to 33 months’ imprisonment. The court continued, “If this
sentence is less than the amount of time that Jones has already served, then the
sentence is reduced to a ‘time served’ sentence.” In a separate April 21, 2009
order, the district court noted the revised sentence but ordered that “all other terms
and conditions shall remain in effect as originally imposed.” Finally, the court
5 ordered the clerk to prepare a revised “Judgment and Commitment” order effecting
the terms and conditions of the revised sentences.
The clerk duly entered a revised Judgment, but page one of the revised
Judgment improperly continues to show a conviction on Count Three (the firearm
count). Page two of the revised Judgment imposed a revised 33-month sentence
but does not limit the 33-month sentence to Counts One and Two. The revised
Judgment not only continues to show the six-year concurrent terms of supervised
release on Counts One and Two, but also improperly continues to impose a term of
supervised release and a special assessment on the firearm count (Count Three).
III. CERTIFICATE OF APPEALABILITY
Jones appealed the partial denial of his petition,3 and this Court granted a
certificate of appealability (COA) as to the following two issues:
(1) Whether the district court erred in partially denying the petitioner’s § 2255 motion, where the court conceded that trial counsel was ineffective for failing to file a timely motion to suppress, and acknowledged that the tainted evidence admitted at trial bolstered the government’s case with regard to petitioner’s drug convictions?
(2) If the district court did not err in partially denying Jones’s § 2255 motion, whether the court erred in resentencing Jones in absentia and without the assistance of counsel?
3 The government did not cross-appeal the district court’s grant of § 2255 relief with respect to the firearm charge in Count Three.
6 On appeal, and consistent with the COA, Jones argues that the district court
erred in finding that his trial counsel’s deficient performance was not prejudicial as
to his underlying drug convictions. Jones also argues that the district court
committed per se prejudicial error by resentencing him in absentia and without the
assistance of counsel as guaranteed under the Constitution and Fed. R. Crim. P. 43.
He asserts that the resentencing was not ministerial because the district court could
have imposed an even shorter sentence or a shorter term of supervised release on
Counts One and Two.
IV. STANDARD OF REVIEW
With regard to a district court’s denial of a 28 U.S.C. § 2255 motion to
vacate, we “review legal conclusions de novo and findings of fact for clear error.”
Mamone v. United States, 559 F.3d 1209, 1210 (11th Cir. 2009). The statutory text
of § 2255 imposes a requirement that the movant be “in custody.” 28 U.S.C.
§ 2255(a). Jones satisfies this requirement because a person serving a term of
supervised release is “in custody” within the meaning of § 2255. United States v.
Brown, 117 F.3d 471, 475 (11th Cir. 1997).
V. INEFFECTIVE ASSISTANCE OF COUNSEL UNDER STRICKLAND
To make a successful claim of ineffective assistance of counsel, a defendant
must show that: (1) his counsel’s performance was deficient; and (2) the deficient
7 performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687,
104 S. Ct. 2052, 2064 (1984). In determining whether counsel gave deficient
assistance under Strickland, “[t]he test for reasonableness is not whether counsel
could have done something more or different; instead,” the movant must show that
counsel’s performance fell outside the “wide range” of professionally competent
assistance. Payne v. Allen, 539 F.3d 1297, 1317 (11th Cir. 2008) (quotation marks
omitted).
To establish prejudice under Strickland, the movant must show more than
that the error had “some conceivable effect on the outcome of the proceeding.”
Marquard v. Sec’y, Dep’t of Corr., 429 F.3d 1278, 1305 (11th Cir. 2005)
(quotation marks omitted). “Rather, the [movant] must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. (quotation marks omitted). “A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.
A. Was Trial Counsel Deficient Under the First Prong of Strickland?
We first conclude that the district court did not err in deciding that Jones
satisfied the first prong of Strickland: deficient performance of counsel. At the
time of Jones’s trial, Jackson held that if police initiate interrogation after the
8 defendant asserts – at an arraignment or similar proceeding – his right to counsel,
any waiver of the defendant’s right to counsel for that police-initiated interrogation
is invalid. 475 U.S. at 636, 106 S. Ct. at 1411. Because the officer interrogated
Jones after he invoked his Sixth Amendment right to counsel at his initial
appearance before the state magistrate judge, all of the evidence secured as a result
of the interrogation should have been suppressed. We agree with the district court
that, at the time of Jones’s trial, his trial counsel was constitutionally deficient for
failing timely to raise this “bread and butter” Jackson argument in a motion to
suppress Jones’s statements and the evidence seized from his home.
B. Prejudice Under Strickland
As to Strickland’s second prong, the district court determined that Jones
failed to show prejudice with respect to the drug convictions4 because the
government “offered sufficient untainted evidence of Jones’s guilt” to sustain the
drug convictions. However, we must vacate the district court’s prejudice ruling in
light of an intervening change in the law.
After the district court’s February 2009 order on Jones’s motion to vacate,
the Supreme Court decided Montejo v. Louisiana, 129 S. Ct. 2079 (2009).
4 With respect to the firearm conviction on Count Three, the district court concluded that Jones had shown prejudice because the charge was based solely on the firearms that were seized from Jones’s home and should have been suppressed. As noted above, the government did not cross-appeal this ruling, and we do not address it here.
9 Expressly overruling Jackson, Montejo holds that a defendant’s request for counsel
at arraignment creates no presumption invalidating a defendant’s subsequent
waiver of his right to counsel at police-initiated interrogation. However, although
a defendant no longer enjoys a presumption that his waiver of his right to counsel
was invalid, the defendant may still assert that his waiver was invalid for other
reasons, such as that the waiver was not knowing, voluntary, and intelligent.
Montejo, 129 S. Ct. at 2085. Noting that the defendant in Montejo had not pursued
any alternative challenge to his waiver (because the waiver was per se invalid
under Jackson), the Supreme Court concluded that remand was necessary to allow
the defendant to pursue any alternative avenue for relief from his putative waiver.
Id. at 2091-92.
Like the defendant in Montejo, Jones relied on Jackson’s presumption that
his waiver was invalid, and he therefore presented no alternative basis for
invalidating his waiver. We conclude that Jones, like the defendant in Montejo, is
entitled to a remand to allow the district court to determine in the first instance
whether Jones has any meritorious basis to challenge his waiver of the right to
counsel at the police-initiated interrogation (and in turn his confession and the
evidence obtained from the search of his home). Of course, on remand Jones’s
§ 2255 motion will be governed by Montejo, and the district court may determine
10 that Jones is not entitled to any relief under § 2255 on either of Counts One and
Two.
We recognize that remand would be moot under the government’s argument
that Jones cannot show prejudice because, even if the allegedly tainted evidence
was suppressed, the untainted evidence was sufficient to support Jones’s drug
convictions on Counts One and Two. However, we conclude that the district court
erred by using a sufficiency-of-the-untainted-evidence standard under Strickland’s
prejudice prong.
Strickland counsels that, in determining whether a petitioner has shown
prejudice:
a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury. Some of the factual findings will have been unaffected by the errors, and factual findings that were affected will have been affected in different ways. Some errors will have had a pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture, and some will have had an isolated, trivial effect. Moreover, a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support. Taking the unaffected findings as a given, and taking due account of the effect of the errors on the remaining findings, a court making the prejudice inquiry must ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors.
466 U.S. at 695-96, 104 S. Ct. at 2069.
11 Here, Jones claims that his drug convictions should be overturned due to
ineffective assistance of counsel because there is a reasonable probability that he
would not have been convicted of Counts One and Two but for his counsel’s error.
To support conviction under 21 U.S.C. § 841(a)(1), the government must prove
that a defendant (1) knowingly (2) possessed a controlled substance (3) with intent
to distribute it. United States v. Harris, 20 F.3d 445, 453 (11th Cir. 1994). Each
of these elements, including intent to distribute, may be proven by direct or
circumstantial evidence. Id.
The untainted evidence against Jones included: (1) two bags of marijuana,
(2) a container filled with ten pieces (weighing only 1.4 grams) of a substance
containing cocaine, (3) $452 in cash, and (4) a 1991 conviction for possession of
cocaine with intent to distribute. With the exception of the prior felony conviction,
all of this evidence was obtained during a valid search incident to an arrest for
unpaid child support.
The potentially tainted evidence admitted against Jones at trial included the
following statements made during an unlawful interrogation: (1) that the drugs
found in the car belonged to Jones, (2) that Jones sold some drugs to make a little
bit of extra money, (3) that Jones sometimes smoked marijuana, but did not smoke
crack, and (4) that Jones had “a little bit of marijuana” at his house. Further
12 potentially tainted evidence admitted at trial included the following items found
during a search of Jones’s home: (1) eighteen bags of marijuana, (2) loose
marijuana, (3) three guns, and (4) ammunition. If, on remand, Jones can
successfully challenge his waiver of his right to counsel after the initial appearance
on the state charges, all of this evidence should have been suppressed.
If Jones successfully challenges his waiver, we are convinced that there is a
reasonable probability that without the tainted evidence Jones would not have been
convicted pursuant to § 841(a)(1) on either of Counts One or Two. Had the jury
been presented with only the untainted evidence, Jones could have avoided
conviction by arguing that the drug amounts found during the search incident to
arrest were consistent with personal use, and that the $452 in cash was consistent
with a normal paycheck. In other words, admission of the tainted evidence –
particularly Jones’s statements that he sold drugs and that he did not smoke crack,
and the large quantity of marijuana found in his home – “alter[ed] the entire
evidentiary picture,” Strickland, 466 U.S. at 696, 104 S. Ct. at 2069, and rendered
any such personal-use argument untenable.5 Thus, there is a reasonable probability
5 Our conclusion is bolstered by a review of the indictment. In Count One, the government charged Jones with possession of crack cocaine on May 31, 2002 (the day of his arrest). In Count Two, the government charged Jones with possession of marijuana on June 1, 2002, the day the government searched Jones’s home and discovered the 18 bags of marijuana. Thus, although the government notes that Jones possessed an undetermined amount of marijuana on the day of his arrest, Count Two apparently relied heavily on evidence that should have been suppressed.
13 that, but for counsel’s error leading to the admission of tainted evidence, the jury
would have found that the evidence failed to establish the third element of a
§ 841(a)(1) offense – i.e., that Jones intended to distribute the drugs. This
probability is sufficient to undermine confidence in the outcome of Jones’s trial
and convince us that Jones suffered prejudice under the second prong of
Strickland.6
VI. CONCLUSION
For the foregoing reasons, we vacate the district court’s denial of Jones’s
motion to vacate his drug convictions and remand for further consideration in light
of Montejo, including whether Jones can establish a meritorious basis for
invalidating the waiver of his right to counsel after his initial appearance on the
state charges.7
6 In the past, we have concluded that counsel’s errors were not prejudicial because of “overwhelming evidence” of guilt that was properly submitted to jury. See, e.g., Harrison v. Jones, 880 F.2d 1279, 1281-82 (11th Cir. 1989); Zamora v. Dugger, 834 F.2d 956, 961 (11th Cir. 1987). Although overwhelming, untainted evidence of guilt may support a lack of prejudice in the proper case, Strickland requires more than bare legal sufficiency of the untainted evidence. See Johnson v. Scott, 68 F.3d 106, 109-10 (5th Cir. 1995). 7 Even if the ruling on remand does not result in the drug convictions being vacated, Jones is still entitled to a new sentencing hearing on his two drug convictions because the district court vacated the entire sentencing package and imposed the revised sentence without Jones’s having an opportunity to be heard. See United States v. Taylor, 11 F.3d 149, 152 (11th Cir. 1994). Accordingly, we also vacate the sentence imposed in the April 21, 2009, revised Judgment. But nothing herein cabins the district court’s discretion as to the ultimate sentence imposed in the event the drug convictions are not vacated. Finally, we also note that the revised Judgment has clerical errors needing correction, such as the references to the firearm conviction in Count Three.
14 VACATED AND REMANDED FOR FURTHER PROCEEDINGS.