SIARRES R. NOBLE, Petitioner-Appellant, v. UNITED STATES OF AMERICA, Respondent-Appellee.
Siarres R. Noble, a federal prisoner proceeding pro se, appeals the district court's judgment denying his motion to vacate sentence filed under 28 U.S.C. § 2255. This court construes Noble's notice of appeal as an application for a certificate of appealability (“COA”). See Fed. R. App. P. 22(b). Noble has also filed a motion to proceed in forma pauperis (“IFP”).
In September 2014, Noble pleaded guilty, pursuant to a written plea agreement under Federal Rule of Criminal Procedure 11(c)(1)(C), to two counts of distribution of heroin, four counts of distribution of fentanyl, and one count of possession with the intent to distribute fentanyl, all in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). In the plea agreement, the government agreed to recommend a 240-month term of imprisonment. The plea agreement also included an appeal-waiver provision that limited Noble's right to file a direct appeal or a collateral challenge, but permitted claims of ineffective assistance of counsel and prosecutorial misconduct.
In December 2014, the district court sentenced Noble to 240 months of imprisonment in accordance with the plea agreement, and Noble did not appeal.
In September 2015, Noble filed a § 2255 motion to vacate, asserting that he did not voluntarily or knowingly enter his guilty plea due to ineffective assistance of counsel. He argued that counsel should not have advised him to plead guilty to Count 4 or Count 5. Counts 4 and 5 were for distribution of fentanyl, with specifications for causing death or serious bodily injury pursuant to § 841(b)(1)(C). Noble argues that counsel should have known that the government allegedly could not have established that death or serious bodily injury would not have occurred but for the drug distributed by Noble. See Burrage v. United States, 134 S. Ct. 881, 887-92 (2014). Noble asserts that counsel failed to provide him with an email from a Dr. Jonathan Arden, purporting to show that the cause of victim “IND-1's” death was unclear and that, without an autopsy, the government could not have proved otherwise. Noble also argues that he received ineffective assistance of counsel because medical records show that victim “IND-2” overdosed on heroin, not fentanyl.
In February 2017, the district court denied Noble's motion because: (1) Noble's claims were contradicted by his assertions in the plea agreement and during the plea colloquy; (2) in light of the evidence the government would have presented at trial, Dr. Arden's email did not establish that the government could not have shown beyond a reasonable doubt that the fentanyl distributed by Noble was the but-for cause of IND-1's death; and (3) the government was able to present evidence, in the form of testimony from IND-2, showing that IND-2's overdose resulted from the fentanyl provided by Noble.
To be issued a COA, the petitioner must make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To satisfy this standard, the applicant must show that “jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
Courts review ineffective-assistance claims under the two-part test of Strickland v. Washington, 466 U.S. 668 (1984). This requires a defendant to show that (1) counsel's performance was deficient, and (2) the deficiency prejudiced the defense. Id. at 687. “[A] 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. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). The test for prejudice is whether “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694.
To satisfy the prejudice requirement in the context of a guilty plea, “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.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). In the Sixth Circuit, a petitioner “cannot make that showing merely by telling [the court] now that [he] would have gone to trial then if [he] had gotten different advice.” Pilla v. United States, 668 F.3d 368, 373 (6th Cir. 2012). “The test is objective, not subjective; and thus, ‘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.’ ” Id. (quoting Padilla v. Kentucky, 559 U.S. 356, 372 (2010)).
Noble argues that his plea agreement was not knowingly, intelligently, or voluntarily made, because counsel should not have advised him to plead guilty to Claims 4 and 5 “despite knowing that the Supreme Court [ ] demanded a higher standard of proof for the enhancement to apply than was present on the record.”
This argument is directly contradicted by Noble's admissions in the plea agreement and at the plea colloquy. In the plea agreement, Noble admitted, among other things, to the factual basis of Claim 4: that Noble provided fentanyl to IND-1 on November 8, 2013, and “that IND-1 did fatally ingest and overdose on [that] fentanyl, on or about November 9, 2013, which had been distributed to IND-1 by [Noble].” Noble also admitted to the factual basis of Claim 5: he provided fentanyl to IND-2 on November 8, 2013, and on November 9, 2013, IND-2 ingested and overdosed on the fentanyl distributed by Noble.
At the plea colloquy, Noble asserted that he: (1) read the information in that section of the plea agreement; (2) understood that information; (3) had no questions about it; (4) agreed that it was accurate; and (5) engaged in the conduct described in the plea agreement. Noble also specifically agreed that the government could establish the factual basis for the enhancements—which he now wishes to challenge—“beyond a reasonable doubt if [the] case were to proceed to trial.”
These representations by Noble “constitute a formidable barrier in any subsequent collateral proceeding” because “[s]olemn declarations in open court carry a strong presumption of verity.” Blackledge v. Allison, 431 U.S. 63, 74 (1977). This claim does not deserve encouragement to proceed further.
Moreover, jurists of reason would not disagree with the district court's conclusion that Noble did not receive ineffective assistance of counsel. In Burrage, the Supreme Court held that, in order for the penalty enhancement provision of § 841(b)(1)(C) to apply, the government must establish beyond a reasonable doubt that the use of a drug distributed by a defendant is either an independently sufficient cause of the victim's death or a but-for cause of the death. 134 S. Ct. at 892.
As noted by the district court, Dr. Arden's email did not show that the government could not have established its case beyond a reasonable doubt. Instead, Dr. Arden stated that there was no “indication of other drugs/metabolites” and IND-1 “looks like an [overdose].” Dr. Arden also stated that “the accessible approach on her death is the absence of an autopsy giving rise to doubt about the certainty of her cause of death as certified,” and without an autopsy, he could not determine the cause of death with reasonable medical certainty. But this simply suggests a trial strategy that counsel elected not to pursue. See Strickland, 466 U.S. at 687. Even if Dr. Arden had testified that the cause of IND-1's death was not a medical certainty, the government could still have established that the fentanyl was a but-for cause of IND-1's death beyond a reasonable doubt. See United States v. Volkman, 797 F.3d 377, 392 (6th Cir. 2015).
The government indicated that it was prepared to offer testimony from IND-1's spouse that IND-1 “used only [the] drugs purchased from Noble on November 8, 2013, and ingested no other drugs than those acquired from Noble after November 8, 2013.” The government was also prepared to offer toxicology test results, the coroner's verdict, and the certificate of death, all of which indicated that IND-1 overdosed on fentanyl. The district court determined that this was sufficient to establish that IND-1 overdosed on fentanyl, and counsel's advice was not deficient. See Volkman, 797 F.3d at 392-93. Jurists of reason would not disagree.
Noble suggests that counsel provided ineffective assistance by not providing him with Dr. Arden's email. The district court did not squarely address this issue. However, for the reasons already discussed, even if Noble had seen the email, it does not show that “a decision to reject the plea bargain would have been rational under the circumstances.” Padilla, 559 U.S. at 372. By pleading guilty, Noble avoided a possible life sentence. Accordingly, to the extent that this is a distinct issue, it nevertheless does not deserve encouragement to proceed further.
Noble also asserts that trial counsel provided ineffective assistance by advising Noble to plead guilty to Claim 5, because the hospital report showed that IND-2 overdosed on heroin, not fentanyl. The district court determined that this was not sufficient to show that trial counsel's performance was deficient. IND-2 was prepared to testify that he purchased fentanyl from Noble and that it was the only drug he consumed before his overdose. Under these circumstances, counsel reasonably concluded that the government would have been able to establish that the fentanyl Noble provided to IND-2 was a but-for cause of IND-2's overdose, and advised Noble accordingly. Moreover, Noble appears to have had access to this information when he pleaded guilty to distributing fentanyl to IND-2 and admitted that IND-2 overdosed on that fentanyl, and he does not now allege otherwise. Jurists of reason would not disagree with the district court's resolution of this claim.
Accordingly, this court DENIES Noble's application for a COA and DENIES his motion to proceed IFP as moot.
ENTERED BY ORDER OF THE COURT
Deborah S. Hunt, Clerk