United States v. Prout

          MEMORANDUM AND ORDER

          JOHN J. MCCONNELL, JR., United States District Judge.

         Allen Prout has petitioned this Court pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his judgment of conviction, entered after he pled guilty to robbery conspiracy, possession of a firearm in furtherance of a crime of violence and drug trafficking crime, and being a felon in possession of a firearm. He claims that he is entitled to a new trial based on ineffective assistance of counsel. The Court finds that Mr. Prout's Motion to Vacate lacks merit and thus DENIES his petition.

         FACTS

         On July 23, 2014, a federal grand jury sitting in the District of Rhode Island indicted Mr. Prout and another individual on charges of robbery conspiracy (Count I), heroin conspiracy (Count II), possession of a firearm in furtherance of a crime of violence and drug trafficking crime (Count III), and being a felon in possession of a firearm (Count IV). The charges arose from a "sting" operation in which Mr. Prout, his co-defendant, and a confidential informant ("CI") planned to rob a heroin stash house. Pursuant to a written Plea Agreement, Mr. Prout pled guilty to Counts I, III, and IV. Count II was dismissed by the Government. Mr. Prout was sentenced on March 9, 2016, to a term of imprisonment of 156 months. An Amended Judgment was entered on March 11, 2016. Under the terms of the Plea Agreement, Mr. Prout did not appeal the judgment of conviction or sentence.

         Mr. Prout timely filed the instant Motion to Vacate on March 10, 2017.^[1]

         LAW

         A. Section 2255

         Section 2255 provides for post-conviction relief only if the court sentenced a petitioner in violation of the Constitution or lacked jurisdiction to impose the sentence, if the sentence exceeded the statutory maximum, or if the sentence is otherwise subject to collateral attack. United States v. Addonizio, 422 U.S. 178, 185 (1979); David v. United States, 134 F.3d 470, 474 (1st Cir. 1998). In attempting to collaterally attack his sentence, the petitioner bears the burden of demonstrating "exceptional circumstances" that warrant redress under § 2255. See Hill v. United States, 368 U.S. 424, 428 (1962); Mack v. United States, 635 F.2d 20, 26-27 (1st Cir. 1980). For example, an error of law must constitute a "fundamental defect which inherently results in a complete miscarriage of justice." Hill, 368 U.S. at 428; accord David, 134 F.3d at 474.

         B. Strickland

         The Sixth Amendment guarantees defendants the right to effective assistance of counsel. Lema v. United States, 987 F.2d 48, 51 (1st Cir. 1993)(citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). However, "[t]he Constitution does not guarantee a defendant a letter-perfect defense or a successful defense; rather, the performance standard is that of reasonably effective assistance under the circumstances then obtaining." United States v. Natanel, 938 F.2d 302, 309-10 (1st Cir. 1991).

         A defendant who claims that he was deprived of his Sixth Amendment right to effective assistance of counsel must demonstrate:

(1) that his counsel's performance fell below an objective standard of reasonableness; and

(2) a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.

Strickland, 466 U.S. at 687-88, 694; see also United States v. Manon, 608 F.3d 126, 131 (1st Cir. 2010)(same). In assessing the adequacy of counsel's performance, a defendant '"must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment, ' and the court then determines whether, in the particular context, the identified conduct or inaction was 'outside the wide range of professionally competent assistance.'" Manon, 608 F.3d at 131 (quoting Strickland, 466 U.S. at 690). With respect to the prejudice requirement under Strickland, a "reasonable probability is one sufficient to undermine confidence in the outcome. ... In making the prejudice assessment, [the court] focuses on the fundamental fairness of the proceeding." Id. "Unless a defendant makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable." Strickland, 466 U.S. at 687; see also Reyes-Vejerano v. United States, 117 F.Supp.2d 103, 107 (D.P.R. 2000)("The petitioner has the burden of proving both prongs of this test, and the burden is a heavy one."). "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland, 466 U.S. at 686.

         Strickland Instructs that "judicial scrutiny of counsel's performance must be highly deferential." Id. at 689. The court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). Moreover, "[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Id. at 691. Finally, "[a] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Id. at 689.

         The same principles apply in the context of guilty pleas. See Hill v. Lockhart, 474 U.S. 52, 57 (1985). The Hill Court held that "the two-part Strickland v. Washington test applies to challenges to guilty pleas based on ineffective assistance of counsel." Id. at 58; see also Padilla v. Kentucky, 559 U.S. 356, 371 n.12 (2010)("In Hill, the Court recognized-for the first time-that Strickland applies to advice respecting a guilty plea."). The first prong of the Strickland' test is nothing more than a restatement of the standard of attorney competence described above. Hill, 474 U.S. at 58.

The second, or "prejudice, " requirement, on the other hand, focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process. In other words, in order to satisfy the "prejudice" requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.

Id. at 59; see also Lafler v. Cooper, 566 U.S. 156, 163 (2012) ("In the context of pleas a defendant must show the outcome of the plea process would have been different with competent advice."). The Hill Court reiterated that, as stated in Strickland, "these predictions of the outcome at a possible trial, where necessary, should be made objectively ...." 474 U.S. at 59-60; see also Padilla, 559 U.S. at 372 (noting that "to obtain relief on this type of claim, a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances").

         ANALYSIS

         As noted above, Mr. Prout filed the Motion to Vacate (ECF No. 78) on March 10, 2017. He subsequently filed a memorandum in support of his motion (ECF No. 91) and an amendment/clarification of one of the claims in the original Motion to Vacate (ECF No. 97).^[2] The Government's objected (ECF No. 96) and Mr. Prout filed a reply (ECF No. 99) to the objection.^[3]

         Mr. Prout alleges that he received ineffective assistance of counsel during the pretrial and sentencing proceedings. He raises six grounds for relief, ^[4] all of which claim that counsel was ineffective for failing to make certain arguments. Several of Mr. Prout's arguments are based on the Hobbs Act, 18 U.S.C. § 1951. He also contends that the Government "manufactured" jurisdiction over the § 924(c) charge and that counsel failed to object; that counsel failed to argue that the conduct of the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF') constituted racial profiling and discriminatory law enforcement, " and that counsel should have challenged the Court's enhancement of his sentence as a career offender. The Court will address Mr. Prout's Hobbs Act arguments together, as they tend to overlap. His remaining claims will be discussed separately.

         A. Hobbs Act Allegations

         The Hobbs Act provides that:

Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined under this title or imprisoned not more than twenty years, or both.

18 U.S.C. § 1951(a).^[5] Mr. Prout claims that counsel was ineffective for failing to argue that: (i) the Government's "broad expansion of [the] Hobbs Act under 1951(a) exceeded constitutional limits expressed by Congress upon enactment, " ECF No. 78 at 4;^[6] (2) a "statute enacted pursuant to the Commerce Clause does not constitutional[ly] reach non-commercial and non-economic conduct that is purely intrastate, " id. at 5; and (3) "the Hobbs Act commerce effect was not proven where the Government failed to prove depletion of any assets o[f] business engaged in interstate commerce, " id. at 8.^[7]

         Mr. Prout relies primarily on the United States Supreme Court's decisions in United States v. Lopez, 514 U.S. 549 (1995), and United States v. Morrison, 529 U.S. 598 (2000), for his arguments that the Hobbs Act

did not apply to the circumstances presented here. Fictitious robbery of a fictitious drug dealer at a fictitious drug stash house does not regulate economic or commercial activity, nor does it show a relationship, attenuated or otherwise, between the regulated activity and persons or things in interstate commerce-and definitely does not invoke any commerce power necessary in order to regulate intrastate criminal activity.

ECF No. 91 at 60. Mr. Prout's reliance on Lopez and Morrison is misplaced.

         In Lopez, the Supreme Court held that the Gun-Free School Zones Act of 1990, 18 U.S.C. § 922(q)(1)(A), exceeded the authority of Congress "[t]o regulate Commerce ... among the several States ...." 514 U.S. at 551 (quoting U.S. Const, art. I, § 8, cl. 3)(alterations in original). The Court stated: "The Act neither regulates a commercial activity nor contains a requirement that the possession be connected in any way to interstate commerce." Id.

         After tracing the history of the Supreme Court's Commerce Clause jurisprudence, see Id. at 553-58, the Lopez Court stated that the Court had "identified three broad categories of activity that Congress may regulate under its commerce power, " id. at 558.

First, Congress may regulate the use of the channels of interstate commerce. Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities. Finally, Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce.

Id. at 558-59 (internal citations omitted). In analyzing 922(q)(1)(A), the Court focused on the third category, whether the statute could be sustained "as a regulation of an activity that substantially affects interstate commerce." Id. at 559. The Court found that:

Section 992(q) is a criminal statute that by its terms has nothing to do with "commerce" or any sort of economic enterprise, however broadly one might define those terms. Section 922(q) is not an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated. It cannot, therefore, be sustained under our cases upholding regulations of activities that arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce.

Id. at 561 (footnote omitted). Further, "§ 922(q) contains no jurisdictional element which would ensure, through case-by case inquiry, that the firearm possession in question affects interstate commerce." Id.', see also Id. at 562 (noting that "§ 922(q) has no express jurisdictional element which might limit its reach to a discrete set of firearm possessions that additionally have an explicit connection with or effect on interstate commerce.").

         Similarly, the Supreme Court in Morrison held that Congress lacked authority to enact a provision of the Violence Against Women Act ("VAWA"), 42 U.S.C. § 13981, which provided a federal civil remedy for victims of gender-based violence. 529 U.S. at 601-02. The Morrison Court relied on the Lopez framework for its analysis. Id. at 609. Again the Court found that the VAWA did not regulate activity that was economic in nature, nor did it contain a jurisdictional element:

With these principles underlying our Commerce Clause jurisprudence as reference points, the proper resolution of ...