James Caswell Jones v. United States ( 2011 )


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    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.
    15