Documente Academic
Documente Profesional
Documente Cultură
No. 11-7335
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston.
David A. Faber,
Senior District Judge. (2:08-cv-00849; 2:99-cr-00012-1)
Argued:
Decided:
Dyess
pled
guilty
to
conspiracy
to
distribute
which
the
district
court
denied.
Dyess
v.
United
Dyess now
facts
and
procedural
history
of
Dyess
case
are
See Dyess I at
conspirators
were
indicted
in
thirteen-count
indictment
substantial
assistance.
Just
days
after
meeting
with
the
In
21
U.S.C.
minimum
sentence.
848,
At
which
the
carried
plea
hearing,
20-year
the
mandatory
district
court
of
conspiracy
ten
count.
years
to
Dyess
life
stated
imprisonment
that
he
on
the
understood,
drug
and
the
he
was
responsible
for
20
kilograms
of
cocaine,
80
with
several
enhancements,
resulted
in
guidelines
multiple
enterprise.
that
he
and
witnesses
about
the
scope
of
Dyess
drug
handled
between
75
and
100
kilograms
of
The
district
court
upheld
the
PSRs
findings
and
accordingly
the
conspiracy.
Rader
informed
the
Assistant
U.S.
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
information,
we
hearing.
issued
an
When
order
presented
remanding
with
the
this
case
for
indictment
for
appropriate proceedings.
On
remand,
government
Dyess
misconduct,
resentenced. 2
moved
to
to
dismiss
withdraw
his
the
plea,
and
to
be
hearing.
Prior
to
evidentiary
hearing,
The case
this
was
reassigned
evidentiary
to
District
hearing
limited
Judge
to
Faber,
the
who
issue
of
then
held
whether
an
Harts
After
misconduct,
the
district
court
found
the
tainted
Dyess I, 478
F.3d at 227.
In 2008, Dyess filed a motion to vacate his sentence under
28 U.S.C. 2255.
motion.
appeal, and this court granted Dyess a COA on six claims: (1)
whether
the
district
court
erred
in
failing
to
address
all
misconduct;
ineffective
for
(4)
whether
failing
to
Dyess
object
trial
to
counsel
the
was
superseding
to
plead
guilty
to
the
indictment;
(5)
whether
Dyess
failing
remand.
to
effectively
challenge
Dyess
guilty
plea
on
Cir. 2008).
II.
Dyess first contention is that the district court erred in
failing to address all of his 2255 claims.
Dyess filed a
requesting
appointment
of
counsel.
The
district
court
and
ordered
Dyess
to
file
on
September
29,
2008,
the
appropriate
paperwork
listing
out
approximately
30
In
his
[g]iven
earlier
Mr.
filings.
Dyess
later
The
district
submission
it
court
was
ruled
that,
appropriate
to
Dyess II,
We disagree.
possibility
of
constitutional
error.
Blackledge
v.
point:
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.
Rule 4(b), Rules Governing Section
United States District Courts.
2255
Proceedings
for
the
See also
petition
that
were
supported
by
facts
and
argument,
next
claims
that
his
sentence
violates
Apprendi
fact
that
increases
the
penalty
for
crime
beyond
the
Dyess thus
argues that, because his conviction and sentence did not become
First, it is well
appeal
motion.
2009).
by
re-raising
the
same
challenge
in
2255
(4th Cir. 2004) (noting that, absent any change in the law,
defendants cannot relitigate previously decided issues in a
2255 motion); Boeckenhaupt v. United States, 537 F.2d 1182, 1183
(4th
Cir.
1976)
(holding
criminal
defendant
cannot
recast,
argued
for
re-sentencing
on
the
basis
of
the
United
and
sentences.
Dyess,
478
F.3d
at
227.
This
remand from this court to raise the issue, well after judgment
issued.
To
Even if a
10
recognize
the
error,
and
should
not
do
so
unless
the
error
held
that
Apprendi
errors
under
841(b)
should
not
be
was
overwhelming
and
essentially
uncontroverted.
the
conspiracy
charged
here
indisputably
involved
amounts
Apprendi
error
necessary
does
not
to
sustain
seriously
the
affect
sentences,
the
any
fairness,
11
court.
show
objective
that
his
standard
attorneys
of
performance
reasonableness
fell
and
(2)
below
an
that
he
probability
the
result
different.
that,
of
but
the
for
counsels
proceeding
unprofessional
would
have
been
the
1473,
guilty-plea
1485
(2010).
setting.
Thus,
Padilla
Dyess
must
v.
Kentucky,
convince
us
130
S.Ct.
that
the
Id.
have
facts.
been
Fugit,
objectively
703
F.3d
reasonable
at
260.
in
light
Given
this
of
all
the
standard,
we
assistance
by
failing
to
uncover
Hart
and
Miss
We rejected Dyess
it
assuming
lacks
our
merit.
earlier
We
Id.
conclusion
have
does
indicated
not
that
bar
this
[a]lthough
Strickland
does
not
impose
constitutional
plea
but
that
nightclubs.
prior
Hart
to
and
sentencing,
Rader
(J.A. 852).
had
been
he
learned
seen
from
holding
fellow
hands
at
Dyess also
action,
(J.A.
while
852).
Dyess
Dyess
told
them
counsel
thus
all
that
he
conducted
could
an
learn.
appropriate
While a failure to
make
counsels
failure
to
uncover
the
affair
in
1999
ineffective assistance.
Moreover, Dyess cannot show prejudice.
potential
life
sentence;
he
pled
guilty
after
the
14
then
failed
to
offer
assistance.
The
Government
had
benefit
from
pleading
Government
(finding
where
no
Government
prejudice
would
from
have
alleged
offered
ineffective
overwhelming
assistance
evidence
at
We
guilty.
This
fact,
however,
does
not
change
our
would
have
recognized
that
conviction
Conversely,
inevitably
entering a plea
15
have
gone
to
trial
had
he
known
of
Hart
and
Raders
States,
recognized
under
that
841(b)
526
U.S.
drug
weights
that
must
227
be
(1999),
were
an
charged
counsel
element
in
the
of
should
the
have
offense
indictment.
In
Id. at
The Court noted that its decision was based on the concern
that under the Due Process Clause of the Fifth Amendment and
the notice and jury trial guarantees of the Sixth Amendment, any
fact (other than prior conviction) that increases the maximum
penalty for a crime must be charged in the indictment, submitted
to a jury, and proven beyond a reasonable doubt.
Id. at 243
n.6.
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 841(b) that had to be indicted
and tried to the jury.
was
not
rejected
failing
constitutionally
the
to
contention
preserve
an
deficient.
that
issue
counsel
at
trial
In
was
that
case,
ineffective
based
merely
we
for
on
the
Id.
United States
We did not
extend Jones and Apprendi to 841(b) until 2001, more than two
years after Dyess sentencing.
Accordingly,
Dyess
counsel
was
anticipate Apprendi.
17
not
deficient
by
failing
to
Moreover,
Dyess
again
cannot
show
that
any
(assumed)
notes,
Government
could
if
have
Dyess
had
simply
raised
issued
this
As the
objection,
superseding
the
indictment
previously
discussed,
pleading
guilty
In addition,
and
offering
final
two
claims
allege
that
remand
counsel
was
an
evidentiary
hearing
to
address
any
taint
at
the
(J.A. 577).
The
tainted
only
Harts
witnesses
misconduct
whose
were
testimony
Rader,
Hart,
18
was
possibly
Harts
partner
by
Detective
Henderson,
Lori
Cummings
(Dyess
girlfriend),
and
Benjamin
Green. 8
At the opening of the hearing the district court (Judge
Faber) reiterated the hearings limited scope:
[I]t seems to me the inquiry is really pretty simple.
Maybe Im 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 taskand 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 thats the simple inquiry.
And
we knowwe have a record of what he looked at, we have
a record of the information thats 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,
Dyess
claim
is
targeted
at
the
fact
that
the
19
of
hearing.
the
voluminous
testimony
from
his
first
sentencing
we
give
counsel
wide
latitude
in
determining
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))
(Decisions about what types of evidence to introduce are ones
of trial strategy, and attorneys have great latitude on where
they can focus the jurys attention and what . . . evidence they
can choose not to introduce.).
nothing
more
than
speculative
in
explaining
who
remand counsel failed to call and what aid their testimony would
have provided to Dyess case.
Dyess
contends
that
remand
counsel
failed
to
Dyess moved
and
voluntary
and
that
20
the
Government
breached
the
agreement.
The
district
court
denied
affirmed.
motion
post-sentencing
was
and
this
motion,
and
we
could
succeed
only
if
the
standard,
Importantly,
we
we
affirmed
rejected
the
Dyess
denial
claim
of
that
Applying
the
his
motion.
plea
was
because
his
remand
counsel
should
have
based
the
rejected
this
ground
by
recounting
that
did
move
to
withdraw his plea on remand, and that his 2255 motion was
unsupported by anything but conjecture about the supposed lies
from counsel.
have
been
attacked
under
Apprendi.
Dyess,
however,
did
not
1 F.3d 246, 250 (4th Cir. 1993) (court of appeals will not
address contentions raised for the first time on appeal).
21
on
the
merits
because
Dyess
cannot
show
prejudice.
[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).
result would have differed if counsel had made the argument, and
it
is
unclear
Martinez,
277
that
F.3d
it
would
517,
533
have.
(4th
See
Cir.
United
2002)
States
v.
(declining
to
in
reasonable
significant
belief
that
benefits
defendant
to
defendant,
would
have
indicating
withdrawn
no
plea).
22
Court
had
made
clear
that
any
fact
increasing
the
In his argument
that
imprisonment.
whether
the
increased
his
maximum
sentence
to
life
itself
was
defective
under
Apprendi.
The
silentio
against
Dyess
on
his
Apprendi
argument.
Ante 10
1976))
(emphasis
added).
23
However,
we
did
not
fully
We conducted an analysis
When we first
at
any
resentencing
this
Court
is
limited
to
the
United States
I would
24
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
until
. . . .
the
Ante 10.
remand
from
this
court
to
raise
the
issue
by
prosecution.
the
lead
investigator
Our
remand
in
and
response
key
to
witness
revelations
for
of
the
this
Because
United States v. Robinson, 460 F.3d 550, 557 (4th Cir. 2006).
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 (4th Cir. 2006).
Significantly, under harmless error review, the government bears
the burden of establishing that the error did not affect the
defendants substantial rights.
Id.
harmless
beyond
reasonable
doubt.
See
Chapman
v.
25
315 F.3d 399, 405 (4th Cir. 2003) (applying the Chapman burden
to Apprendi error).
When a sentence violates Apprendi because the underlying
indictment fails to allege drug quantities sufficient to raise
the
maximum
violated.
sentence,
defendants
substantial
rights
are
the
government
assumes
that
plain
error
review
950 (7th Cir. 2007); United States v. Silva, 247 F.3d 1051, 1060
(9th Cir. 2001).
normal case.
26
case
agents
and
witnesses
who
allegedly
(and
by
their
own
J.A.
J.A. 621-23.
J.A. 508.
Rather
appears
the
government
providing immunity.
did
not
compel
his
Amazingly,
testimony
by
after he entered a guilty plea to the charge against him -misappropriation of government funds of $1,000 or less. 2
As a
27
Apprendi
error.
The
fairness
of
plea
goes
defendant
makes
decision
to
well
plea,
he
must
weigh
When
the
(2010).
disadvantages
such,
Here,
was
Dyesss
warped
the
appearance
by
admission
rife
to
of
advantages
and
government
misconduct.
As
drug
quantity
should
not
be
The majority
plain
error
under
the
fourth
prong
of
the
test
put
evidence
of
drug
essentially uncontroverted.
at 633).
quantity
was
overwhelming,
and
may have been plain Apprendi error, there was no basis for
concluding
that
the
error
seriously
28
affected
the
fairness,
integrity,
or
public
reputation
of
judicial
proceedings.
by
the
government
in
this
case
has
discredited
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.
As
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 courts finding that
sufficient
untainted
evidence
remained
to
sustain
the
severely
remaining
weakened
untainted
essentially
the
evidence
evidence
uncontroverted.
is
See
against
not
Dyess.
The
overwhelming
Cotton,
535
U.S.
at
and
633.
been
reputation
no
of
damage
to
judicial
the
fairness,
proceedings.
integrity
See
id.
or
The
public
lead
29
conciliatory
effort
to
condemn
this
mess
to
history.
I respectfully dissent.
30
I cannot condone