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Whitford v. United States

April 9, 2008

TERRY WHITFORD, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Scullin, Senior Judge

MEMORANDUM-DECISION AND ORDER

I. BACKGROUND*fn1

The record reflects that on August 6, 2003, a grand jury sitting in the Northern District of New York returned a one count indictment against Petitioner, which alleged that, between February 19, 2003, and May, 2003, he knowingly and intentionally attempted to manufacture methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. See Action No. 03-CR-316, Dkt. No. 1. At that time, a warrant was issued for Petitioner's arrest. See id., Dkt. No. 4. Officers of the Metro-Jefferson Drug Task Force of Jefferson County, New York, together with agents from the Drug Enforcement Agency, executed that warrant and arrested Petitioner in his home in Watertown, New York. Subsequent to his arrest, a search of his home pursuant to a warrant revealed several of the components necessary to manufacture methamphetamine, together with six glass jars that subsequent testing established contained approximately ten ounces of a mixture containing methamphetamine.

On October 1, 2003, a federal grand jury returned a Superseding Indictment against Petitioner. See id., Dkt. No. 12. Count 1 of that accusatory instrument alleged that Petitioner knowingly and intentionally attempted to manufacture methamphetamine from February 19, 2003, until May, 2003; and Count 2 of that same accusatory instrument alleged that, in August, 2003, Petitioner knowingly possessed with intent to distribute more than 50 grams of a mixture containing methamphetamine, contrary to 21 U.S.C. §§ 841(a) and 841(b)(1)(B). The Superseding Indictment also contained an allegation that Petitioner had a prior felony drug conviction, which would affect the penalty provisions to which he was subject with respect to both counts of the Superseding Indictment.

On October 30, 2003, the Government filed an Enhanced Penalty Information, pursuant to 21 U.S.C. § 851, in which it declared its intent to use Petitioner's prior felony drug conviction to increase his punishment under 21 U.S.C. § 841(b)(1)(B). See Action No. 03-CR-316, Dkt. No. 13.*fn2

On February 15, 2005, following negotiations between Petitioner's appointed counsel and Assistant United States Attorney Carl G. Eurenius, the parties advised this Court that Petitioner had agreed to plead guilty to the Second Count in the Superseding Indictment, which charged him with possessing with intent to distribute more than 50 grams of a mixture and substance containing methamphetamine. Under the terms of his plea agreement, see Action No. 03-CR-316, Dkt. No. 36 ("Plea Agreement"), Petitioner, among other things, (1) acknowledged that he was subject to a mandatory minimum term of imprisonment of ten years pursuant to 21 U.S.C. § 841(b)(1)(B), see Plea Agreement at ¶ 2; (2) admitted that in August, 2003, he possessed with intent to distribute more than 50 but less than 200 grams of a mixture or substance containing what he knew to be a detectable amount of methamphetamine in violation of 21 U.S.C. §§ 841(a) and 841(b)(1)(B), see id. at ¶ 4(a); and (3) waived his right to appeal or collaterally attack pursuant to 28 U.S.C. § 2255 any sentence of imprisonment of 120 months or less, see id. at ¶ 12.

At the proceeding during which Petitioner formally entered his change of plea, he explained to the Court that, although he had initially experienced some difficulty in understanding the legal proceedings that had been brought against him, he had subsequently spoken with his attorney who had clarified certain matters and assisted him in understanding the nature of the criminal proceedings. See Transcript of Change of Plea, dated February 15, 2005 ("Plea Tr."), attached to Action No. 05-CV-1353, Dkt. No. 6, at 5. Petitioner then made the following representations to the Court: (1) he understood everything that was contained in the Plea Agreement; (2) he had no questions about any of the contents of that agreement; and (3) he was satisfied with the legal representation that he had received in conjunction with the criminal matter. See id. The Court then asked Petitioner's counsel, Craig Schlanger, to place on the record the steps he had taken to esnure that Petitioner was aware of the charges against him and to explain to him the terms and conditions of the Plea Agreement. Attorney Schlanger then declared that, in conjunction with the criminal charges brought against Petitioner, counsel had, among other things, received . . . full and adequate discovery from [the] United States Attorney consisting of . . . all police reports, including . . . lab reports as to the analysis, chemical analysis of the . . . various substances that were recovered which are the subject of the charges, and I've had an opportunity to review all of those as well, and I've reviewed all of the discovery materials with Mr. Whitford.

See Plea Tr. at 6.

Petitioner then acknowledged the following facts during the colloquy: (1) he was pleading guilty to possessing with intent to distribute in excess of 50 grams of methamphetamine; (2) he faced a mandatory minimum term of ten years imprisonment and a maximum term of life imprisonment; (2) his attorney had explained to him the effect of the United States Sentencing Guidelines on his sentence; (4) he had previously been convicted of a felony; and (5) he was aware that he was waiving numerous rights by pleading guilty. See id. at 7-10.

Prior to the sentencing hearing, Petitioner's counsel filed a sentencing memorandum with this Court. See Action No. 03-CR-316, Dkt. No. 39 ("Sentencing Memorandum"). In that memorandum, counsel argued that the total amount of mixtures containing methamphetamine for which the Government sought to hold Petitioner accountable -- 200 to 350 grams, see Pre-Sentence Report at ¶¶ 7, 13 -- was improper because the language of the Plea Agreement stipulated that the amount of mixtures containing methamphetamine that Petitioner possessed was between 50 and 200 grams. See Sentencing Memorandum at 2-3. At Petitioner's sentencing hearing on July 7, 2005, AUSA Eurenius conceded that, in keeping with the "spirit" of the plea negotiations, the Court should only hold Petitioner accountable for between 50 and 200 grams of substances containing methamphetamine. See Transcript of Sentencing of Terry Whitford, dated July 7, 2005, at 4-5.*fn3 This Court adopted that joint recommendation and, after taking into account Petitioner's acceptance of responsibility, found his total offense level under the Sentencing Guidelines to be 23. See Sentencing Tr. at 6.

Before this Court imposed sentence on him, Petitioner addressed the Court. At that time, he conceded that "what [he] did was wrong" and expressed his hope that the Court would not sentence him to a term of life imprisonment. See Sentencing Tr. at 8. Significantly, he never asserted at that time that the type or quantity of drugs to which he pled guilty, and for which he was to be sentenced, was erroneous. See, generally, Sentencing Tr. This Court ultimately imposed the mandatory minimum sentence of 120 months imprisonment on Petitioner. See id. at 9. He did not file any appeal relating to his conviction or his sentence. See Action No. 05-CV-1353, Dkt. No. 1, Motion to Vacate, Set Aside or Correct Sentence ("Motion to Vacate"), at ¶ 8.

On October 20, 2005, Petitioner filed his Motion to Vacate. In that application, Petitioner claimed that (1) Attorney Schlanger improperly failed to challenge the actual weight of the substances that law enforcement officials seized; (2) the substance that Petitioner was accused of criminally possessing was "not usable or ingestible;" and (3) there was insufficient evidence to establish that Petitioner ever possessed 50 grams or more of methamphetamine. See Motion to Vacate, Grounds One through Four.*fn4

The United States Attorney for the Northern District of New York filed a memorandum of law in opposition to Petitioner's application in which the Government argued that Petitioner was both procedurally barred from asserting the claims he raised in his application and, additionally, that such claims were without substance. See Action No. 05-CV-1353, Dkt. No. 6 ("Government's Memorandum"). Petitioner thereafter filed a reply memorandum in further support of his application. See id., Dkt. No. 8 ("Reply"). In that Reply, Petitioner reiterated his claims (1) that his attorney wrongfully failed to challenge the Government's allegation that Petitioner possessed more than 50 grams of methamphetamine; and (2) that the substances that the police seized did not contain methamphetamine but instead were "pure waste." See Reply at Points I, II, IV, VI. Petitioner also appeared to argue, for ...


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