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Basham v. United States

United States District Court, D. South Dakota, Southern Division

March 5, 2015



KAREN E. SCHREIER, District Judge.

Petitioner, James Clifford Slick Basham, an inmate in the Federal Correctional Institution in Florence, Colorado, moves to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. Civ. 13-4112 (Civ. Docket) 1. The government opposes the motion. Also pending is Basham's related motion for discovery. Civ. Docket 3. For the following reasons, the court denies Basham's petition.


On January 1, 2012, Basham was arrested following a controlled sale of methamphetamine. Basham paid $1, 800 to a confidential informant, who was working with law enforcement to purchase approximately one ounce of methamphetamine. Cr. 12-40022 (Cr. Docket) 26. After receiving the money, the confidential informant conducted a controlled delivery of the methamphetamine to Basham. Id. Basham was arrested after he emerged from the confidential informant's vehicle. PSR at 4. Officers searched Basham and found the methamphetamine and a digital scale inside his coat pocket. Id. Two cellular phones were also confiscated from Basham during the arrest. Id. A search of Basham's residence was then conducted after the consent of Basham's parole officer was obtained. Id. During the search, agents discovered several plastic baggies, a plastic bag containing trace amounts of marijuana, a digital scale that field tested positive for methamphetamine, a spoon that field tested positive for methamphetamine, a snort tube that field tested positive for methamphetamine, and four glass pipes. Id.

Basham was subsequently charged with possession with intent to distribute a controlled substance in violation of 21 U.S.C. § 841(a)(1). Cr. Docket 1. Basham and the government entered into a plea agreement. See Cr. Docket 25. The plea agreement contained a "Waiver of Defenses and Appellate Rights" provision, which stated:

The Defendant hereby waives all defenses and his right to appeal any non-jurisdictional issues. The parties agree that excluded from this waiver is the Defendant's right to appeal any decision by the Court to depart upward pursuant to the sentencing guidelines as well as the length of his sentence for a determination of its substantive reasonableness should the Court impose an upward departure or an upward variance pursuant to 18 U.S.C. § 3553(a).

Id. at 8.

Additionally, Basham and the government stipulated to his base offense level, agreeing Basham's conduct involved "at least 5 grams (actual) but less than 20 grams (actual) of methamphetamine." Id. at 5. Basham also signed a factual basis statement in which he acknowledged that:

On January 1, 2012, the Defendant, James Clifford Slick Basham, knowingly and intentionally possessed a controlled substance, methamphetamine, with the intent to distribute the methamphetamine, in violation of 21 U.S.C. § 841(a)(1). The Defendant provided approximately $1, 800 to a confidential informant working with law enforcement to purchase one ounce of methamphetamine. The confidential informant, working with law enforcement, conducted a controlled delivery of methamphetamine to the Defendant. The Defendant intended to distribute approximately 10.5 grams of the substance delivered by the confidential informant, which contained more than 5 grams actual methamphetamine. The remainder of the substance delivered to the Defendant was intended for his own personal use.

Cr. Docket 26 at 1.

On July 23, 2012, Basham's change of plea hearing was held. See Cr. Docket 29. Basham appeared with counsel. After being placed under oath, Basham was asked if he had had the opportunity to discuss his case with his attorney and whether he was fully satisfied with the representation that he received, to which he responded affirmatively.[1] Basham was asked if he had read, discussed, and understood the terms of the plea agreement and the plea agreement supplement, and again he responded affirmatively.

The court then explained the maximum and mandatory minimum penalties that Basham faced by pleading guilty to the offense charged. The court asked if Basham understood these possible penalties, to which he stated that he did.

The court then reiterated that Basham had the right to plead "not guilty" and that, if he insisted on going to trial, he would be entitled to the presumption of innocence, the right to counsel, to confront the witnesses against him, the right to remain silent, and the court's subpoena power with respect to having favorable witnesses appear. Basham was told that the burden of proof would remain on the government and that, if he decided not to testify or put on evidence, the court would tell the jury that it could not hold those facts against him. Basham was told that if he pleaded guilty he would be giving up those rights, and Basham responded that he understood.

Next, the court explained the elements of his offense and that the government would have to prove each element beyond a reasonable doubt if he insisted on going to trial. Basham indicated that he understood this was the crime he was charged with and what the government would have to prove. The court then inquired about the factual basis Basham submitted, asked whether he had read it before he signed it, and whether everything in it was the truth. Basham again responded affirmatively. After reviewing the factual basis statement, the court determined there was an independent basis in fact to support the plea of guilty.

Finally, the court asked Basham how he wished to plead, and he responded "guilty." The court found Basham fully competent and capable of entering an informed plea, that he was aware of the nature of the charges and the consequences of the plea, and that the plea was entered knowingly and voluntarily. Additionally, the court found that the plea was supported by an independent basis in fact which contained each essential element of the offense charged. The plea was therefore accepted, and Basham was adjudged guilty.

On October 15, 2012, Basham appeared with counsel before this court for sentencing. See Cr. Docket 32. The court ruled on several objections Basham raised to the presentence report (PSR). Based on the contemporary Guidelines Manual, Basham's base offense level for an offense involving at least 5 grams but less than 20 grams of actual methamphetamine was 26. PSR at 5. After Basham was credited with three points for accepting his responsibility, PSR at 6. Basham's total offense level was determined to be 23. Basham's criminal history placed him in category VI. Based on Basham's total offense level and criminal history category, the court found his advisory guideline range to be 92-115 months imprisonment. The court sentenced Basham at the bottom of his guideline range to 92 months, [2] and ordered Basham's sentence to run concurrently with his undischarged state sentence.[3]

Basham did not appeal. On October 11, 2013, Basham filed the present motion to vacate, set aside, or correct his sentence pursuant to § 2255. Civ. Docket 1. Bashan claimed, inter alia, that he did not receive the assistance of counsel as guaranteed by the Sixth Amendment. See id. Following the magistrate judge's order that the government file and serve a response, Civ. Docket 5, the government moved to dismiss the petition. Civ. Docket 8. Basham subsequently requested this court to appoint him counsel to pursue his § 2255 petition, which motion was granted. Civ. Docket 14, 15.


A § 2255 motion is the "statutory analog of habeas corpus for persons in federal custody." Poor Thunder v. United States, 810 F.2d 817, 821 (8th Cir. 1987). A federal prisoner may seek relief from his sentence on the grounds that "the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack[.]" 28 U.S.C. § 2255. Relief may be granted under § 2255 only for "transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and, if uncorrected, would result in a complete miscarriage of justice." United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996). Claims of ineffective assistance of counsel are generally not reviewed on direct appeal and are properly addressed in a § 2255 petition such as the one here. See United States v. Lee, 374 F.3d 637, 654 (8th Cir. 2004).

The Sixth Amendment affords criminal defendants the right to counsel. See e.g., Missouri v. Frye, 132 S.Ct. 1399, 1404 (2012). Moreover, the right to counsel means that criminal defendants are afforded the effective assistance of counsel. Id. The right to the effective assistance of counsel also extends to the plea agreement process. Id. ; see also Lafler v. Cooper, 132 S.Ct. 1376, 1384 (2012); Padilla v. Kentucky, 559 U.S. 356, 373-74 (2010); Hill v. Lockhart, 474 U.S. 52, 58 (1985).

Generally, in order to establish ineffective assistance of counsel, a petitioner must satisfy the two-pronged standard articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687 (1984). "First, the [petitioner] must show that counsel's performance was deficient." Id. This "performance prong" requires a petitioner to "show that counsel's representation fell below an objective standard of reasonableness." Id. at 687-88. A petitioner challenging the effectiveness of counsel during the plea agreement process similarly must demonstrate that counsel's representation "was not within the range of competence demanded by attorneys in criminal cases.'" Buchheit v. Norris, 459 F.3d 849, 852 (8th Cir. 2006) (quoting Tollett v. Henderson, 411 U.S. 258, 93 (1973)); Hill, 474 U.S. at 58-59. Under this prong, the court must assess "whether counsel's assistance was reasonable considering all the circumstances." Strickland, 466 U.S. at 688. There is a "strong presumption, " however, "that counsel's conduct falls within the wide range of reasonable professional assistance[.]" Id. at 689. "Thus, a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Id. at 690.

"Second, the [petitioner] must show that the deficient performance prejudiced the defense." Strickland, 466 U.S. at 687. This "prejudice prong" requires the petitioner to "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. In the plea agreement context, the petitioner "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." Hill, 474 U.S. at 59. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694 . In other words, "[i]t is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding." Id. at 693. Thus, "[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 ...

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