Opinion
Criminal 7: 18-CR-60 (WLS) 7: 20-CV-138 (WLS)
04-07-2021
PAUL A. BRADFORD, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
ORDER AND RECOMMENDATION
THOMAS Q. LANGSTAFF UNITED STATES MAGISTRATE JUDGE
Petitioner's Motion to Vacate, Set Aside, or Correct his sentence pursuant to 28 U.S.C. § 2255, filed on July 14, 2020 (Doc. 65), is before this Court for the issuance of a recommendation of disposition pursuant to Rule 8 of the Rules Governing Section 2255 Proceedings for the United States District Courts.
Procedural History
Petitioner was charged by means of an Indictment filed on November 14, 2018 with possession of a firearm by a convicted felon. (Doc. 1). Petitioner entered a guilty plea and was sentenced on December 16, 2019 to 46 months imprisonment, followed by three (3) years of supervised release. (Docs. 51, 52, 59). Following his sentencing but before judgment was entered, Petitioner through counsel filed an unopposed Motion for Resentencing, based on an error in the presentence report discovered after sentencing. (Doc. 61). The district judge denied this motion. (Doc. 64).
Petitioner's Motion to Vacate was executed on July 7, 2020 and filed with the Court on July 14, 2020. (Doc. 65). Petitioner alleges that he received ineffective assistance of counsel based on counsel's failure to uncover the documentation regarding a prior conviction that would have resulted in a reduction in sentence. Id. In response, the government denies the allegations of ineffective assistance of counsel but does not oppose Petitioner's request to have his sentence set aside and for Petitioner to be resentenced. (Doc. 69).
Legal Standards
Section 2255 provides that:
a prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground 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, may move the court which imposed the sentence to vacate, set aside or correct the sentence.28 U.S.C. § 2255.
If a prisoner's § 2255 claim is found to be valid, the court “shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.” Id.
Evidentiary Hearing
Petitioner bears the burden of establishing that an evidentiary hearing is needed to dispose of his § 2255 motion. Birt v. Montgomery, 725 F.2d 587, 591 (11th Cir. 1984). “A federal habeas corpus petitioner is entitled to an evidentiary hearing if he alleges facts which, if proven, would entitle him to relief.” Futch v. Dugger, 874 F.2d 1483, 1485 (11th Cir. 1989). The Court is not required to hold an evidentiary hearing, however, where the record makes “manifest the lack of merit of a Section 2255 claim.” United States v. Lagrone, 727 F.2d 1037, 1038 (11th Cir. 1984). “[If] the record refutes the applicant's factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing.” Schirro v. Landrigan, 550 U.S. 465, 474 (2007). The record herein is sufficient to evidence that Petitioner's claims lack merit, and therefore no evidentiary hearing is necessary as to his grounds.
Discussion
In Petitioner's final Presentence Investigation Report, U.S. Probation calculated Petitioner's guideline sentencing range as 41-51 months, based on a total offense level of 18 and a criminal history category of IV. (Doc. 58, pp. 11, 15). The criminal history calculation was based on a score of seven that included one criminal history point for a 2016 Lanier County DUI conviction. Id. at p. 10. Petitioner was sentenced under these guideline calculations to 46 months in prison. (Doc. 59).
In his unopposed motion for resentencing, Petitioner's counsel noted that at the time of sentencing, there was no disagreement among the Petitioner, the government, and U.S. Probation as to Petitioner's criminal history score. (Doc. 61, ¶ 2). However, after the sentencing hearing, Petitioner's counsel received additional information from Lanier County, allegedly showing that Petitioner had not been convicted of a DUI offense, which had resulted in the addition of one criminal history point. Id. at ¶ 3. Counsel for Petitioner stated that “the parties unanimously agreed the new information was accurate and that the guideline calculations in the Final Revised PSR were incorrect.” Id. at ¶ 4. Counsel alleged that the correct guideline calculation would place Petitioner in the guideline range of 33-41 months. Id. at ¶ 5.
In this § 2255 motion, Petitioner raises only an ineffective assistance claim. He did not file an appeal, and thus did not raise his sentencing error or ineffective assistance claim on direct appeal.
Petitioner claims only that “[m]y lawyer failed to get the relevant documents about a prior conviction of mine. The initial report was that I had a misdemeanor DUI conviction in Lanier County, but while I was charged with that, I pleaded guilty to reckless driving, misdemeanor. He got those records after my sentencing hearing on December 20, 2019.” (Doc. 65, ¶ 12).
Ineffective assistance of counsel
In order to establish that his counsel's representation was constitutionally defective, the Petitioner must show (1) that his counsel's representation was deficient, and (2) that the Petitioner was prejudiced by his counsel's alleged deficient performance. Strickland v. Washington, 466 U.S. 668 (1984); Smith v. Wainwright, 777 F.2d 609, 615 (11th Cir. 1985). "Our role in collaterally reviewing [] judicial proceedings is not to point out counsel's errors, but only to determine whether counsel's performance in a given proceeding was so beneath prevailing professional norms that the attorney was not performing as 'counsel' guaranteed by the sixth amendment." Bertolotti v. Dugger, 883 F.2d 1503, 1510 (11th Cir. 1989).
The two-prong Strickland test applies to guilty plea challenges, although “[i]n the context of a guilty plea, the first prong of Strickland requires petitioner to show his plea was not voluntary because he received advice from counsel that was not within the range of competence demanded of attorneys in criminal cases, while the second prong requires petitioner to show a reasonable probability that, but for counsel's errors, he would have entered a different plea.” Woolsey v. United States, 2011 WL 195412, *2 (M.D.Fla.)(citing Hill v. Lockhart, 474 U.S. 52, 56-59 (1985)). Thus, the prejudice requirement “focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process. In other words, in order to satisfy the ‘prejudice' requirement, 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, 474 U.S. at 59.
The Strickland court stated that "[a] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed." Strickland, 466 U.S. at 697.
[A]ctual ineffectiveness claims alleging a deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice. . . . It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding . . [rather][t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. . . . In making the determination whether the specified errors resulted in the required prejudice, a court should presume, absent challenge to the judgment on grounds of evidentiary insufficiency, that the judge or jury acted according to law.Strickland, 466 U.S. at 693-694, emphasis added.
“As to counsel's performance, ‘the Federal Constitution imposes one general requirement: that counsel make objectively reasonable choices.'” Reed v. Sec'y. Fla. Dep't. of Corr., 593 F.3d 1217, 1240 (11th Cir. 2010) (quoting Bobby v. Van Hook, 130 S.Ct. 13, 17 (2009)). A court must “judge the reasonableness of counsel's conduct on the facts of the particular case, viewed as of the time of counsel's conduct.” Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000). In order to find that counsel's performance was objectively unreasonable, the performance must be such that no competent counsel would have taken the action at issue. Hall v. Thomas, 611 F.3d 1259, 1290 (11th Cir. 2010).
Petitioner argues that counsel should have obtained the documents regarding his DUI charge and ultimate conviction for reckless driving. However, he provides no basis to establish that counsel knew of this issue or of the need to clarify the conviction issue prior to receiving the documents from the state court. Counsel states in his Motion for Resentencing that at the time of Petitioner's sentencing, all parties and U.S. Probation were in agreement as to the Sentencing Guidelines calculation, based on the information available at that time. There is no indication that at that time, counsel was or should have been aware of circumstances requiring additional investigation into Petitioner's criminal history calculation. Petitioner has not shown that counsel's representation was inadequate in regard to the information available at the time of Petitioner's sentencing.
The Court notes that to the extent that Petitioner is actually raising a sentencing error claim, his claim is procedurally defaulted. Denmark v. U.S., 2008 WL 2694066 (M.D.Fla. 2008) (although “dress[ed] up” as a Sixth Amendment claim, defendant really challenged the correctness of his sentence under the guidelines); U.S. v. Djelevic, 161 F.3d 104, 107 (2d Cir. 1998); Valrie v. U.S., 2010 WL 3000195 (S.D.Ala. 2010) (petitioner's ineffective assistance claims were merely disguised sentencing claims that had been waived, and would not support habeas relief). Petitioner is procedurally barred from raising claims that he failed to raise during a direct appeal. Massaro v. United States, 538 U.S. 500, 503-04 (2004); Mills v. United States, 36 F.3d 1052, 1055 (11th Cir. 1994). “Under the procedural default rule, a defendant generally must advance an available challenge to a criminal conviction or sentence on direct appeal or else the defendant is barred from presenting that claim in a § 2255 proceeding.” Lynn v. U.S., 365 F.3d 1225, 1234 (11th Cir. 2004).
The Court notes that in a § 2255 petition, “the Court has the discretion to raise the question of procedural default sua sponte.” Nasirun v. U.S., 2008 WL 717823 *4 (M.D.Fla. 2008). See also, Green v. U.S., 2009 WL 6496558 (S.D.Ga. 2009), internal citations omitted (“[w]hile procedural default is an affirmative defense that the government may waive by failing to raise, courts are generally free to raise the issue sua sponte.”); Esslinger v. Davis, 44 F.3d 1515, 1524-25 (11th Cir. 1995) (district court may raise issue of procedural default sua sponte in § 2254 habeas action if doing so serves an important federal interest).
Petitioner can overcome the procedural bar by showing cause for failing to raise the claim and actual prejudice. Jones v. United States, 153 F.3d 1305, 1307 (11th Cir. 1998). Cause is established by showing “‘some objective factor external to the defense impeded counsel's efforts to comply with the . . . procedural rule,' or that his attorney's performance failed to meet the Strickland standard for effective assistance of counsel.” Reece v. United States, 119 F.3d 1462, 1465 (11th Cir. 1997) (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)). Actual prejudice is established by showing the error “not merely . . . created a possibility of prejudice, but that [it] worked to his actual and substantial disadvantage.” United States v. Frady, 456 U.S. 152, 170 (1982) (emphasis in original).
Alternatively, Petitioner can overcome procedural default by showing that the alleged error “‘has probably resulted in the conviction of one who is actually innocent.'” Bousley v. United States, 523 U.S. 614, 623 (1998) (quoting Murray, 477 U.S. at 496). To establish “actual innocence, ” Petitioner would have to show that “‘in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him.'” Id. (quoting Schlup v. Delo, 513 U.S. 298, 327-28 (1995)).
As Petitioner has not shown cause or prejudice, or that he is actually innocent, his ground for relief is procedurally defaulted and cannot form the basis of federal habeas relief.
Additionally, “Section 2255 does not provide a remedy for every alleged error in conviction and sentencing. When a prisoner, like [Petitioner], alleges that his ‘sentence was imposed in violation of the . . . laws of the United States . . . or is otherwise subject to collateral attack,' 28 U.S.C. § 2255, a district court lacks authority to review the alleged error ‘unless the claimed error constitute[s] ‘a fundamental defect which inherently results in a complete miscarriage of justice'.” Spencer v. U.S., 773 F.3d 1132, 1138 (11th Cir. 2014).
Petitioner may challenge a sentencing error as a “fundamental defect” on collateral review when he can prove that he is either actually innocent of his crime or that a prior conviction used to enhance his sentence has been vacated. U.S. v. Addonizio, 442 U.S. 178 (1979). “When a federal prisoner, sentenced below the statutory maximum, complains of a sentencing error and does not prove either actual innocence of his crime or the vacatur of a prior conviction, the prisoner cannot satisfy the demanding standard that a sentencing error resulted in a complete miscarriage of justice.” Addonizio, 773 F.3d at 1139. Petitioner has not satisfied this standard herein. Although he has presented evidence of state convictions, there is inadequate reliable and conclusive information before the Court regarding the status of Petitioner's DUI conviction and its impact on the sentencing guidelines calculation.
Conclusion
WHEREFORE, it is recommended that Petitioner's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 be DENIED.
Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to this Recommendation, or seek an extension of time to file objections, WITHIN FOURTEEN (14) DAYS after being served with a copy thereof. The District Judge shall make a de novo determination as to those portions of the Recommendation to which objection is made; all other portions of the Recommendation may be reviewed by the District Judge for clear error.
The parties are hereby notified that, pursuant to Eleventh Circuit Rule 3-1, “[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice.”
The undersigned finds no substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). Therefore, it is recommended that the Court deny a certificate of appealability in its Order addressing the ground raised in this § 2255 Petition. If the Petitioner files an objection to this Recommendation, he may include therein any arguments he wishes to make regarding a certificate of appealability.
Petitioner's Motion to Appoint Counsel and Motion to Proceed in forma pauperis are DENIED as moot. (Docs. 66, 67).
SO ORDERED and RECOMMENDED.