Parker v . USA CV-10-64-PB 8/13/10 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Quenta Parker

v. Case N o . 10-cv-64-PB Opinion N o .

United States of America

MEMORANDUM AND ORDER

Quenta Parker, proceeding pro s e , seeks relief under

, alleging ineffective assistance of counsel. I

deny Parker’s motion for the reasons set forth below.

I. BACKGROUND1

Parker was arrested, along with co-defendants Anthony

Burnett and Juan Feliciano, on February 1 6 , 2005, following the

seizure of 550 grams of crack cocaine, several firearms, a safe,

and a total of $5,750 in cash from defendants’ hotel room.2 See

1 The underlying facts are set forth in detail in the First Circuit opinion that rejected Parker’s appeal, United States v . Parker,

(1st Cir. 2008). I therefore repeat them here only to the extent that they are necessary to resolve Parker’s present claims. 2 The seizure of these items occurred pursuant to a lawfully executed search warrant. See Parker,

. United States v . Parker,

, 7 (1st Cir. 2008). Parker

was then indicted by a federal grand jury for conspiracy to

distribute and to possess with intent to distribute crack cocaine

in violation of

, possession with intent to

distribute crack cocaine in violation of

(a)(1),

and possession of a firearm in furtherance of a crime of drug

trafficking under

(c)(1)(A). See id.;

(2006);

(a)(1) (2006);

(c)(1)(A) (2006). The court appointed Richard Foley to

represent Parker under the auspices of the Criminal Justice Act

(“CJA”). On October 3 , 2006, Parker pled guilty to all three

counts after the court denied his request to suppress the

physical evidence against him. (Resp’t’s Objection to Pet’r’s

Mot., Doc. N o . 4 , at 3-4.) The U.S. Probation Department then

circulated a Revised Presentence Investigation Report (“PSI”)

that determined that Parker was in criminal history category I ,

and faced an advisory guideline sentencing range (“GSR”) of 210

to 262 months. (Id.)

Foley later withdrew as Parker’s defense counsel, and the

court appointed Donald Kennedy as Parker’s substitute CJA counsel

at the sentencing stage. Kennedy filed a sentencing memorandum

-2- requesting that the court sentence Parker to 120 months for the

two drug counts, followed by a consecutive sentence of 60 months

for the firearm offense. In support of his request, Kennedy

cited Parker’s lack of a criminal history, the sentencing

disparity between Parker and the government cooperators, and the

disparity between sentences for offenses involving crack versus

powder cocaine. (Resp’t’s Objection to Pet’r’s Mot., Doc. N o . 4 ,

at 4.) At Parker’s sentencing on November 2 7 , 2007, the parties

stipulated to a three-level downward adjustment for acceptance of

responsibility, and a two-level upward adjustment based upon

Parker’s role in the crime, yielding a new GSR of 135 to 168

months. I sentenced Parker to concurrent sentences of 135 months

on each of the drug counts and a consecutive sentence of 60

months on the gun count.3 See Parker,

. The

First Circuit affirmed Parker’s sentence on November 2 6 , 2008.

See

3 Both conspiracy to distribute cocaine and possession of with intent to distribute cocaine carry a mandatory minimum sentence of 120 months. See

(a)(1), 846. Possession of a firearm in furtherance of a crime of drug trafficking carries a mandatory minimum sentence of 60 months. See

(c)(1)(A).

-3- II. STANDARD OF REVIEW

To succeed on a claim of ineffective assistance of counsel,

a habeas petitioner must show both “deficient performance by

counsel and resulting prejudice.” Peralta v . United States,

4 , 79 (1st Cir. 2010) (citing Strickland v . Washington,

6 8 , 687 (1984)); see also Kimmelman v . Morrison,

(1986) (adopting the two-prong Strickland standard for

claims of ineffective assistance of counsel on habeas review).

In order to satisfy the “deficient performance” prong of this

standard, a petitioner must prove that his trial counsel’s

representation fell below “an objective standard of

reasonableness.” Pina v . Maloney,

8 , 54-55 (1st Cir.

2009); Owens v . United States,

8 , 57 (1st Cir. 2007).

To establish prejudice, a petitioner must demonstrate “that, but

for counsel’s unprofessional error, there is a reasonable

probability that the result of the proceeding would have been

different.” Yeboa-Sefah v . Ficco,

3 , 70 (1st Cir.

2009), cert. denied,

(2009). Although he need not

show “that counsel’s deficient conduct more likely than not

altered the outcome of his sentencing proceeding, he must

establish a probability sufficient to undermine confidence in

-4- [that] outcome.” Peralta, 597 F.3d at 7 9 . The Constitution

guarantees only an “effective defense, not necessarily a perfect

defense or a successful defense.” Scarpa v . DuBois,

, 8

(1st Cir. 1994).

III. ANALYSIS

In support of his ineffective assistance of counsel claim,

Parker argues primarily that (1) Kennedy failed to raise

mitigating factors at his sentencing hearing, and (2) Kennedy

failed to challenge the constitutional validity of

(c), under which Parker was sentenced to an additional 60

months in prison. (See Pet’r’s Mot. to Vacate Sentence, Doc. N o .

1.) Parker also contends that the argument that Kennedy did

advance at his sentencing--that Parker should not be subjected to

a more lengthy sentence than his co-defendants–-was “illogical,

illegal, and fundamentally flawed,” and that this argument should

have been abandoned in favor of one based upon the disparity

between sentences for crack and powder cocaine offenses. (See

id. at 10-13.) The government objects and argues that Parker

cannot meet either the cause or prejudice prong of the Strickland

standard with regard to these claims.

-5- A. Alleged Failure to Raise Mitigating Factors

Parker alleges that Kennedy failed to raise mitigating

factors at his sentencing hearing that would have warranted a

shorter sentence. This argument fails for two reasons.

First, the record shows that Kennedy raised several

mitigating factors in his sentencing memorandum, and also shows

that the court carefully considered those factors. In that

memorandum, Kennedy requested a statutory minimum sentence on the

basis of two factors: Parker’s history of drug addiction, and

his lack of a criminal record. The court, however, while

recognizing Parker’s education, athletic prowess, employment

history, and potential to be a productive member of society,

noted that this was outweighed by Parker’s threats and acts of

violence and the magnitude of his offense. Parker has failed to

identify any additional mitigating factors that might have

prompted the court to conclude otherwise, and the PSI fails to

raise any unusual mitigating factors that would have warranted a

lesser sentence.

Second, even if Kennedy had failed to raise viable

mitigating factors, the court is mindful of Strickland’s “strong

presumption that counsel’s performance [fell] within a wide range

-6- of reasonable professional assistance[.]” Strickland, 466 U.S.

at 689. In keeping with that presumption, “a lawyer’s election

not to present mitigating evidence is a tactical choice accorded

a strong presumption of correctness which is virtually

unchallengeable.” Mills v . Singletary,

(11th

Cir. 1995). Thus, while the Supreme Court has found that

counsel’s performance fell below an objective standard of

reasonableness where he failed to conduct an adequate

investigation that would have revealed crucial mitigating

evidence, the failure to present specific mitigating factors,

without more, does not render counsel’s assistance ineffective.

See Wiggins v . Smith,

1 0 , 523 (2003); see also Dugas v .

Coplan,

1 7 , 328 (1st Cir. 2005) (In determining whether

counsel was competent, “[the court] focus[es] on whether the

investigation supporting his pursuit of the defense was itself

reasonable.”); Dyer v . Calderon,

2 0 , 735 (9th Cir.

1997) (“We have never held that counsel has a duty to uncover

every aspect of a defendant’s past and to present all evidence

that might bolster a defendant’s mitigation case.”); Laws v .

Armontrout,

(8th Cir. 1988) (In “cases in

which counsel was found ineffective for having failed to present

-7- mitigating evidence, the key to the findings of ineffectiveness

was not that mitigating evidence was not presented, but that

counsel, as a result of inadequate preparation, had failed to

discover the evidence . . . . [T]he absence of mitigating

evidence does not inexorably lead to a conclusion of ineffective

assistance of counsel.”). Thus, Kennedy’s alleged failure to

raise certain mitigating factors, none of which Parker has

actually identified, does not demonstrate that his performance

was deficient. See Strickland, 466 U.S. at 687. 4

B. Alleged Failure to Address the 100:1 Crack to Powder Cocaine Ratio

Parker argues that Kennedy’s deficient performance is

additionally evidenced by his failure to challenge the federal

sentencing guidelines’ disparate treatment of offenses involving

crack and powder cocaine. Under the so-called “100:1 ratio” of

the guidelines, one unit of crack cocaine is treated as being on

par with one hundred units of powder cocaine. Thus, for

sentencing purposes, a defendant convicted of an offense

4 Since Parker cannot demonstrate that Kennedy’s performance was deficient, we need not consider whether he was prejudiced by Kennedy’s allegedly deficient actions. See Malone v . Clarke,

4 , 64 (1st Cir. 2008) (“While [a plaintiff] must prove both prongs [of Strickland’s two-prong test] to prevail, we have held that a reviewing court need not address both requirements if the evidence as to either is lacking.”).

-8- involving one unit of crack cocaine is subject to the same

mandatory minimum sentence as a similarly situated defendant

convicted of an offense involving one hundred times that amount

of powder cocaine. Parker alleges that Kennedy’s failure to

argue for a downward departure in Parker’s sentence on the basis

of this inequity demonstrates that his performance was

objectively unreasonable.

Under Strickland, the reasonableness of counsel’s conduct is

evaluated by examining the governing legal standards at the time

of that conduct. See Strickland, 466 U.S. at 690. In this case,

the legal landscape at the time of Parker’s sentencing makes

clear that Kennedy’s decision not to challenge the 100:1 ratio

was entirely reasonable. In United States v . Pho, which codified

the legal standard at that time, the First Circuit held that

courts do not have “free rein to reject, on a categorical basis,

the 100:1 ratio embedded in both the statutory scheme and the

sentencing guidelines.”

3 , 59 (1st Cir. 2006). Thus,

while courts could depart from the sentencing guidelines “based

on individual, case-specific considerations,” such as a

defendant’s background, character, and conduct, they could not

deviate from those guidelines solely because they determined that

the comparably harsh treatment of crack cocaine offenses was

-9- unfair. See

(reasoning that “the district court’s

categorical rejection of the 100:1 ratio impermissibly usurp[ed]

Congress’ judgment about the proper sentencing policy for cocaine

offenses.”). Later, in Kimbrough v . United States,

(2007), the Supreme Court abrogated Pho when it determined that

courts could consider the disparity between the guidelines’

treatment of crack cocaine and powder cocaine offenses in

sentencing proceedings. See

Kimbrough, however, was decided

on December 1 0 , 2007--one month after Parker’s sentencing. Any

argument that the unfairness of the 100:1 ratio would warrant a

downward departure from the sentencing guidelines would therefore

have been futile at the time of Parker’s November 1 1 , 2007

sentencing hearing, and Kennedy’s decision not to advance such an

argument was entirely consistent with the relevant case law that

existed at that time.5 See Pho,

9 . Kennedy’s

performance at Parker’s sentencing hearing, therefore, was in no

5 The government argues that Kennedy did address the inherent inequity of the 100:1 ratio when he invited the court to compare the guidelines range contained in Parker’s PSI with the shorter, 108 to 135 month range suggested in the newly issued November 1 , 2007 U.S. Sentencing Guidelines Manual. (See Government’s Objection to Pet’r’s Mot., Doc. N o . 4 , at 21.) Regardless of whether Kennedy actually intended to challenge the unfairness of the crack to powder cocaine ratio, his efforts reinforce my determination that he was competent.

-10- way deficient. See Strickland, 466 U.S. at 690.

C. Illogical Disparity Between the Sentences of Co-Defendants

Parker further alleges that the argument that Kennedy did

advance at his sentencing hearing--that Parker should not be

subjected to a sentence disproportionately greater than that of

his co-defendants--was fundamentally flawed. This argument,

however, is entirely consistent with the Sentencing Reform Act’s

requirement that the court consider “the need to avoid

unwarranted sentence disparities among defendants with similar

records who have been found guilty of similar conduct” in

determining what sentence is appropriate. See

(a)(6). Pursuant to that requirement, the First Circuit

has noted that “gross disparities between co-defendants remain a

permissible consideration in certain cases, even if it is not the

primary goal of the statutory provision.” United States v .

Cirilo-Munoz,

(1st Cir. 2007); see also United

States v . Martin,

7 , 94 (1st Cir. 2008) (“[D]istrict

courts have discretion, in appropriate cases, to align co-

defendants’ sentences somewhat in order to reflect comparable

degrees of culpability--at least in those cases where disparities

are conspicuous and threaten to undermine confidence in the

criminal justice system.”).

-11- While I note that Parker was not “similarly situated” to his

co-defendants, who chose to cooperate, Kennedy did not ignore

this fact. See, e.g. United States v . Vasquez-Rivera,

(1st Cir. 2006) (citation omitted) (“[A] defendant who

chooses to enter into a plea bargain is not similarly situated to

a defendant who contests the charges.”). Rather, Kennedy argued

that the cooperation of Parker’s co-conspirators was

counterbalanced by their lengthy criminal records, whereas Parker

was a first-time offender. Under Strickland, Kennedy’s argument

need not have been successful to have been “objectively

reasonable.” See Scarpa,

. That the disparity

between the sentences of Parker and his co-conspirators did not

outweigh the seriousness of Parker’s offense does not mean that

Kennedy’s performance was deficient.

D. Failure to Challenge the Statutory Construction of

(c)

Finally, Parker alleges that Kennedy was ineffective in

failing to challenge the constitutionality of

(c),

under which he received a consecutive 60-month sentence for

possession of a firearm in furtherance of a crime of drug

trafficking. In his reply brief, Parker appears to argue that

the statute is unconstitutionally vague because subsection

-12- 924(c)(1)(A), which exempts certain crimes from the 60-month

mandatory minimum, is in conflict with Section 924(c)(1)(D)(ii),

which specifies that sentences imposed under Section 924(c) may

not be imposed concurrently with any other sentence.

Parker’s argument fails because it is premised on a

misreading of Section 924(c). Under the so-called “except

clause” of Section 924(c)(1)(A), a 60-month mandatory minimum

sentence for possession of a firearm in connection with a drug

offense will be applied “in addition to” the sentence for the

underlying offense, except where “a greater minimum sentence is

otherwise provided by this subsection or by any other provision

of law.”

(c)(1)(A). Section 924(c)(1)(D)(ii),

meanwhile, directs that “no term of imprisonment imposed on a

person under this subsection shall run concurrently.”

(c)(1)(D)(ii). Parker argues in his reply brief that

“924(c)[(1)](A) requires [that] a class of offenses be exempt

from the consecutive requirement, while 924(c)[(1)](D)

essentially ignores that classification by mandating [that] all

offenses be subject to the consecutive sentence.” (Pet’r’s Reply

to Resp’t’s Objection, Doc. N o . 6, at 11.) The text of Section

924(c)(1)(D)(ii), however, does not support this interpretation.

Subsection (c)(1)(D)(ii) only comes into play if a sentence is

-13- imposed under Section 924(c) (“no term of imprisonment imposed

under this subsection shall run concurrently” (emphasis added)).

If a sentence is subject to the exception clause of Section

924(c)(1)(A), no sentence will be imposed under Section 924(c).

Thus, the two provisions are not in conflict. Since Parker’s

argument is meritless, he cannot assert that Kennedy was

“deficient” in failing to raise this argument at sentencing. See

Strickland, 466 U.S. at 687.

IV. CONCLUSION

For the foregoing reasons, I deny Parker’s motion for relief

under § 2255. Because the petitioner has failed to make a

substantial showing of the denial of a constitutional right, the

court declines to issue a certificate of appealability. See

(c)(2); Rule 1 1 , Rules Governing Habeas Corpus Cases

Under Section 2254; First Cir. LR 22.0. The clerk of court shall

enter judgment accordingly and close the case.

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge August 1 3 , 2010

cc: Quenta Parker, pro se Aixa Maldonado-Quinones, Esq.

-14-