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U.S. v. Calvin Douglas Dyess, No. 11-7335

Decided: September 16, 2013

The Fourth Circuit Court of Appeals affirmed the district court’s denial of Defendant’s motion to vacate his sentence under 28 U.S.C. § 2255. Defendant Calvin Dyess (“Dyess”) pled guilty to conspiracy to commit money laundering and to conspiracy distribute cocaine, cocaine base, and marijuana, and was sentenced to life imprisonment.

Dyess and several co-conspirators were indicted for their operation of a large-scale drug conspiracy in Charleston, West Virginia, from 1955 to 1998. Dyess entered a plea agreement whereby he agreed to plead guilty to the aforementioned crimes. At the plea hearing, the district court expressly told Dyess that he was facing a sentence of ten years to life imprisonment for the drug conspiracy. Then, a presentence report (PSR) was prepared, indicating the particular amounts of drugs that Dyess was responsible for in the conspiracy. For those particular amounts, Dyess faced life imprisonment. Dyess objected to the drug amounts at a contested sentence hearing. The district court heard from several witnesses about the scope of Dyess’ drug enterprise, upheld the PSR’s findings and sentenced Dyess to life. Dyess appealed, during which time his ex-wife admitted to a sexual relationship with Hart, one of the lead investigators in Dyess’ case and to committing perjury at the sentencing hearing. On remand, Dyess moved to be resentenced. The district court deferred ruling on the motion pending an evidentiary hearing, limited to the issue of whether Hart’s misconduct and his ex-wife’s perjury at the sentencing affected Dyess’ sentence. The district court found the tainted testimony did not affect Dyess’ sentence and declined to hold a resentencing. Dyess appealed, and this court granted Dyess a COA on six claims.

Dyess’ first contention was that the district court erred in failing to address all of his § 2255 claims. In Dyess’ first § 2255 motion, he listed approximately 30 claims for relief, 25 of which consisted of a single sentence.  In Dyess’ “amended” § 2255 petition, he raised 16 claims, several of which were repeated from his earlier filings. The district court considered only the claims in the amended petition and this court found that was not error. Many of the claims in the amended motion were also raised in the original filing and the rest consisted only of vague and conclusory allegations.

Dyess’ second claim was that his sentence violated Apprendi because the indictment did not allege a specific drug quantity and, therefore, limits his maximum sentence to 20 years. The court rejected this claim for two reasons. First, Dyess cannot circumvent a proper ruling on direct appeal by re-raising the same challenge in a § 2255 motion. Dyess raised his Apprendi argument on remand to the district court and the district court rejected it. Second, this claim would still fail on the facts of this case. Dyess waited until the remand from this court to raise the issue, well after judgment issued. Therefore, the claim would be reviewed for plain error. On plain error, Apprendi errors will not be recognized when the evidence as to drug quantity is essentially uncontroverted, as in this case.

Dyess’ third claim was that trial counsel failed to investigate and discover Hart’s affair with Dyess’ wife prior to Dyess’ guilty plea. For ineffective assistance claims, the Defendant must show (1) that the attorney’s performance fell below an objective standard of reasonableness and (2) that he experienced prejudice as a result. The court found Dyess did not show (1) just because his attorney hired an investigator who failed to discover evidence of the affair. Under Strickland, counsel should conduct a reasonable investigation into potential defenses, but is not required to uncover every scrap of evidence that could conceivably help their client. In addition, Dyess could not establish prejudice under (2), where the Government had overwhelming evidence of Dyess’ guilt. Dyess’ arrest and prosecution were the result of a long investigation complete with wiretaps, drug buys, and co-conspirator testimony. Further, while Dyess subjectively claimed he would have gone to trial had he known about the affair, objectively a reasonable defendant would have pled guilty and offered substantial assistance.

Dyess’ fourth claim was that trial counsel should have recognized that drug weights were an element of the offense under § 841(b) that must be charged in the indictment. In Jones v. United States, the Supreme Court held that certain sentencing enhancements were actually elements of the charged offense. Jones was decided after Dyess’ superseding indictment but prior to his guilty plea and sentencing. The Fourth Circuit did not extend Jones and Apprendi to § 841 (b) until 2001, more than two years after Dyess’ sentencing. According, Dyess’ counsel was not deficient by failing to anticipate Apprendi. In any event, Dyess could not show that trial counsel’s performance prejudiced him, because of the overwhelming evidence in support of the drug weights.

Dyess’ fifth claim was that remand counsel failed to call all of the necessary witnesses at the evidentiary hearing involving Hart’s misconduct. However, counsel called all of the witnesses whose testimony was possibly tainted by Hart’s misconduct. Because the evidentiary hearing was limited to this one issue, it did not need all of the voluminous testimony from Dyess’ first sentencing hearing. In any event, the Fourth Circuit held that courts provide counsel wide latitude in determining which witnesses to call as a part of their trial strategy.

Dyess’ sixth claim was that remand counsel failed to “effectively challenge” his guilty plea on remand. Dyess moved to withdraw his guilty plea on remand, arguing that it was not knowing and voluntary. The court affirmed the district court’s denial of this motion, rejecting Dyess’ claim that his plea was unknowing because he faced a life sentence and because trial counsel failed to uncover the Hart/Rader relationship. Dyess also argued that his plea should have been attacked under Apprendi, but did not raise this claim to the district court. However, even though Dyess’ counsel did not raise Apprendi as a ground for withdrawing his guilty plea, Dyess did raise that argument when he was acting pro se and the court rejected it. Therefore, Dyess could not show prejudice.

Full Opinion

– Sarah Bishop