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Beane v. United States

United States District Court, Eighth Circuit

May 24, 2013

JAY BEANE, Petitioner,


DONALD E. O'BRIEN, Senior District Judge.

This matter is before this Court on Jay Beane's (hereinafter "Petitioner") motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence imposed by this Court on November 12, 2008. Docket No. 1.


On March 25, 2008, a Grand Jury indicted Petitioner on two counts: (1) conspiracy to distribute 50 or more grams of crack cocaine after having been previously convicted of a felony drug offense, and (2) possession with intent to distribute 5 grams or more of crack cocaine after having been previously convicted of a felony drug offense. Cr. Docket No. 2.[1] On April 1, 2008, Petitioner and his defense counsel, Michael Smart, signed a written waiver of personal appearance at arraignment. Cr. Docket No. 4.

At trial, the Government presented testimony from law enforcement officials related to the stop of Petitioner's vehicle on February 29, 2008, and subsequent execution of a search warrant at Petitioner's residence. Cr. Docket No. 49, 5. Pursuant to the traffic stop, officers recovered over 56 grams of crack cocaine and over $4, 700.00 in cash. Id . The subsequent search of Petitioner's residence produced bags with torn corners and digital scales, both of which are indicative of drug trafficking. Id. at 6. In a post-Miranda statement, Petitioner admitted the drugs and money seized belonged to him; he further stated that, over the past two weeks, he had distributed between one half to one kilogram of cocaine brought to Sioux City, Iowa, from Chicago, Illinois.[2] Id. at 7. Shanta Banks testified as to Petitioner's role as a leader of a conspiracy to distribute crack cocaine brought to Sioux City from Chicago. Antonio Jones, Daniel Frye, Kimberlee Fontenot, and Myree Coleman also testified regarding their involvement with Petitioner in the distribution of crack cocaine and corroborated the theory that he was bringing the drugs in from Chicago. Id . Danielle Twyford also testified regarding her direct observations of Petitioner's involvement in the crack cocaine trade. Id . On July 24, 2008, the jury found Petitioner guilty of both counts of the indictment. Cr. Docket No. 31.

At sentencing, this Court found Petitioner was a career offender pursuant to U.S.S.G. § 4B.1.1. Id . For purposes of calculating a Guideline sentencing range, a career offender is automatically given a criminal history category of VI and, when a defendant is facing a maximum sentence of life - as Petitioner was - an offense level of 37. U.S.S.G. § 4B1.1(b). An offense level of 37 and a criminal history category of VI call for a Guideline imprisonment range of 360 months to life. Id . Absent a career offender enhancement, Petitioner would have had an offense level of 37[3] and a criminal history category of IV, giving him a Guideline range of 292 to 365 months. In the end, this Court granted Petitioner a downward variance from the 360 months to life range based on 18 U.S.C. § 3553(a) factors and sentenced him to 300 months in prison.

On June 11, 2009, Petitioner appealed this Court's ruling, arguing this Court improperly considered what the Eighth Circuit might do on appeal rather than the 18 U.S.C. § 3553(a) sentencing factors. Cr. Docket No. 69. On October 20, 2009, the Eighth Circuit Court of Appeals affirmed this Court's ruling. Id . On June 1, 2010, the Supreme Court denied Petitioner's writ of certiorari. Cr. Docket No. 76. On January 3, 2011, Petitioner timely filed his 28 U.S.C. § 2255 Petition with this Court. Docket No. 1.

Petitioner makes the following arguments in support of his 28 U.S.C. § 2255 Petition: (1) he was unlawfully denied an arraignment; (2) Defense counsel was ineffective for failing to properly argue Petitioner was not subject to U.S.S.G. §4B1.1 career offender enhancement; (3) Defense counsel was ineffective for failing to point out that Defendant's prior conviction resulted in both a 21 U.S.C. § 851 enhancement and a U.S.S.G. § 4B1.1 enhancement; (4) Defense counsel was ineffective for a failure to file pre-trial motions; and (5) Petitioner is entitled to a sentencing reduction pursuant to 18 U.S.C. § 3582(c)(2).


28 U.S.C. § 2255 provides a federal prisoner four general grounds for relief: (1) "the sentence was imposed in violation of the Constitution or laws of the United States;" (2) the court "lacked jurisdiction to impose such sentence;" (3) "the sentence was in excess of the maximum authorized by law;" or (4) the sentence "is otherwise subject to collateral attack." 28 U.S.C. § 2255(a).


The Defendant claims his convictions were obtained in violation of Federal Rules of Criminal Procedure 10 and 43(a)(1) because he was not present at arraignment. Docket No. 1-1, 2. Rule 10 generally requires that arraignment be held "in open court." Fed. R. Crim. P. 10(a)(1). It also generally requires the presence of the defendant as a procedural safeguard in order to assure the defendant understands which of his rights the proceeding may affect. Id . Rule 43(a)(1) reinforces the general requirement of Rule 10 and generally requires the defendant "be present at... the initial arraignment." Fed. R. Crim. P. 43(a)(1).

As with many a general rule in law, Rule 10(a)(1) and Rule 43(a)(1) are subject to exceptions. Rule 43 provides that the presence of a defendant is not required if "Rule 10 provides otherwise...." Fed. R. Crim. P. 43(a). Rule 10(b)(2) provides that,

A defendant need not be present for the arraignment if... the defendant, in a written waiver signed by both the defendant and defense counsel, has waived appearance and has affirmed that the defendant received a copy of the indictment or information and that the plea is not guilty; and... the court accepts the waiver.

Fed. R. Crim. P. 10(b)(2).

As previously noted, Petitioner and his defense counsel signed a waiver of personal appearance in which Petitioner affirmed he received a copy of the indictment and pled guilty. Cr. Docket No. 4. On April 1, 2008, Chief Magistrate Judge Paul A. Zoss accepted Petitioner's waiver. Cr. Docket No. 5. Thus, in this case, there is a valid exception to the general rule that a defendant must be present at arraignment.

While the signed waiver indicates otherwise, Petitioner insists that he did not in fact sign the waiver and Magistrate Zoss denied him his right to be present at arraignment in a "secret proceeding." Docket No. 1, 3-4. Even if this Court were to agree that defense counsel and Magistrate Zoss conspired to deprive Petitioner of his right to be present at arraignment - a proposition for which no supporting evidence has been presented - the Supreme Court has ruled that a failure to comply with arraignment procedures in a case later decided at trial is "a mere technical irregularity not warranting a reversal of a conviction if not raised before trial." Fed. R. Crim. P. 10, 1944 Advisory Committee Notes (citing Garland v. State of Washington , 232 U.S. 642 (1914)). Therefore, because the waiver Petitioner signed effectively terminated his right to be present at arraignment, and defects in arraignment proceedings are generally obsolete post jury convictions, Petitioner's argument does not provide grounds for this Court to vacate, set aside, or correct his sentence pursuant to § 2255.


"[T]he right to counsel is the right to effective assistance of counsel." McMann v. Richardson , 397 U.S. 759, 771 (1970). The Fourteenth Amendment Due Process Clause guarantees the right to a fair trial. Strickland v. Washington , 466 U.S. 668, 684-85 (1984). The Sixth Amendment guarantees the right to assistance of counsel. U.S. Const. amend. VI. In Strickland v. Washington , the Supreme Court elaborated on the relationship between the Fourteenth and Sixth Amendments:

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 ...

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