Opinion
Case No.: 4:13cr52/RH/CAS Case No.: 4:15cv322/RH/CAS
04-27-2017
UNITED STATES OF AMERICA, v. BEEJAY DUDLEY, Defendant.
Order , REPORT AND RECOMMENDATION
This matter is before the court upon Defendant's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. (ECF No. 98). The Government has filed a response (ECF No. 146) and Defendant filed a reply. (ECF No. 150). Defendant also filed two motions to amend his pending § 2255 motion, which were more akin to notices of supplemental authority, containing argument. (ECF Nos. 108, 111). One was granted (ECF No. 109), and the second, which remains pending, will be granted. The case was referred to the undersigned for the issuance of all preliminary orders and any recommendations to the district court regarding dispositive matters. See N.D. Fla. Loc. R. 72.2; see also 28 U.S.C. § 636(b) and Fed. R. Civ. P. 72(b). After a careful review of the record and the arguments presented, it is the opinion of the undersigned that Defendant has not raised any issue requiring an evidentiary hearing and that the § 2255 motion should be denied. See Rules Governing Section 2255 Cases 8(a) and (b).
BACKGROUND
Defendant Beejay Dudley pleaded guilty to conspiracy to distribute 500 grams or more of cocaine (Count One) and possession of a firearm in furtherance of a drug trafficking crime (Count Three). (ECF Nos. 53-55). Count Two, which had charged possession of a firearm and ammunition by a convicted felon, was dismissed by the Government.
A Presentence Investigation Report ("PSR") was prepared for sentencing. The final version of the PSR reflects that Defendant had a base offense level of 32 as a result of the quantity of cocaine involved in the conspiracy. (ECF No. 63, PSR ¶ 48). However, because Defendant had two prior felony convictions, he was classified as a career offender pursuant to U.S.S.G. § 4B1.1, with an offense level of 37. His total offense level after an adjustment for acceptance of responsibility was 34. (ECF No. 63, PSR ¶¶ 54-57). Defendant's criminal history category would have been III, but it became VI due to the application of the career offender adjustment. (ECF No. 63, PSR ¶¶ 66-67). The applicable guideline imprisonment range was 262 to 327 months as to Count One, and 60 months consecutive as to Count Three. (ECF No. 63, PSR ¶). Absent the application of the career offender enhancement, which Defendant challenges in the instant motion, with a total offense level of 29 and a criminal history category of III, the applicable guideline range as to Count One would have been 108 to 135 months.
Defendant appealed, and his appointed counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967). (ECF No. 95) The Eleventh Circuit's independent review of the entire record revealed no arguable issues of merit, it granted the motion to withdraw and affirmed Defendant's convictions and sentences. (Id.)
Defendant timely filed the instant § 2255 motion in which he claims that counsel was constitutionally ineffective for his failure to object to the application of the career offender enhancement and that he is entitled to resentencing. The Government opposes the motion.
ANALYSIS
General Standard of Review
Collateral review is not a substitute for direct appeal, and therefore the grounds for collateral attack on final judgments pursuant to § 2255 are extremely limited. A prisoner is entitled to relief under section 2255 if the court imposed a sentence that (1) violated the Constitution or laws of the United States, (2) exceeded its jurisdiction, (3) exceeded the maximum authorized by law, or (4) is otherwise subject to collateral attack. See 28 U.S.C. § 2255(a); McKay v. United States, 657 F.3d 1190, 1194 n.8 (11th Cir. 2011).
Ineffective assistance of counsel claims are generally not cognizable on direct appeal and are properly raised by a § 2255 motion regardless of whether they could have been brought on direct appeal. Massaro v. United States, 538 U.S. 500, 503 (2003); see also United States v. Franklin, 694 F.3d 1, 8 (11th Cir. 2012); United States v. Campo, 840 F.3d 1249, 1257 n.5 (11th Cir. 2016). In order to prevail on a constitutional claim of ineffective assistance of counsel, a defendant must demonstrate both that counsel's performance was below an objective and reasonable professional norm and that he was prejudiced by this inadequacy. Strickland v. Washington, 466 U.S. 668, 686 (1984); Williams v. Taylor, 529 U.S. 362, 390 (2000); Darden v. United States, 708 F.3d 1225, 1228 (11th Cir. 2013). In applying Strickland, the court may dispose of an ineffective assistance claim if a defendant fails to carry his burden on either of the two prongs. Strickland, 466 U.S. at 697; Brown v. United States, 720 F.3d 1316, 1326 (11th Cir. 2013); Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000) ("[T]he court need not address the performance prong if the defendant cannot meet the prejudice prong, or vice versa.").
With regard to the prejudice requirement, defendant must establish that, but for counsel's deficient performance, the outcome of the proceeding would have been different. Strickland, 466 U.S. at 694. In the case of alleged sentencing errors, a defendant must demonstrate that there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been less harsh due to a reduction in the defendant's offense level. Glover v. United States, 531 U.S. 198, 203-04 (2001). Counsel is not constitutionally deficient, however, for failing to preserve or argue a meritless claim. Denson v. United States, 804 F.3d 1339, 1342 (11th Cir. 2015) (citing Freeman v. Attorney General, Florida, 536 F.3d 1225, 1233 (11th Cir. 2008)). This is true regardless of whether the issue is a trial or sentencing issue. See, e.g., Sneed v. Florida Dep't of Corrections, 496 F. App'x 20, 27 (11th Cir. 2012) (failure to preserve meritless Batson claim not ineffective assistance of counsel); Lattimore v. United States, 345 F. App'x 506, 508 (11th Cir. 2009) (counsel not ineffective for failing to make a meritless objection to an obstruction enhancement); Brownlee v. Haley, 306 F.3d 1043, 1066 (11th Cir. 2002) (counsel was not ineffective for failing to raise issues clearly lacking in merit).
An evidentiary hearing is unnecessary when "the motion and files and records conclusively show that the prisoner is entitled to no relief." See 28 U.S.C. § 2255(b); Rosin, 786 F.3d at 877; Gordon v. United States, 518 F.3d 1291, 1301 (11th Cir. 2008). Not every claim of ineffective assistance of counsel warrants an evidentiary hearing. Gordon, 518 F.3d 1291, 1301 (11th Cir. 2008) (citing Vick v. United States, 730 F.2d 707, 708 (11th Cir. 1984)). To be entitled to a hearing, a defendant must allege facts that, if true, would prove he is entitled to relief. See Hernandez v. United States, 778 F.3d 1230, 1234 (11th Cir. 2015). A hearing is not required on frivolous claims, conclusory allegations unsupported by specifics, or contentions that are wholly unsupported by the record. See Winthrop-Redin v. United States, 767 F.3d 1210, 1216 (11th Cir. 2014) (explaining that "a district court need not hold a hearing if the allegations [in a § 2255 motion] are . . . based upon unsupported generalizations") (internal quotation marks omitted); Peoples v. Campbell, 377 F.3d 1208, 1237 (11th Cir. 2004). Even affidavits that amount to nothing more than conclusory allegations do not warrant a hearing. Lynn, 365 F.3d at 1239. Finally, disputes involving purely legal issues can be resolved by the court without a hearing.
Defendant's claim
Defendant's lone claim for relief is that counsel was constitutionally ineffective for failing to object to the application of the career offender enhancement.
Defendant's career offender enhancement was premised upon a 2004 conviction for Sale of Cocaine in Leon County, Florida, case 2004CF990B, and an April 16, 2007, conviction of Felony Feeling or Attempting to Elude and Officer and Possession of Cocaine with Intent to Sell/Deliver in Leon County, Florida, case 2006CF1140. (ECF No. 63, PSR ¶¶ 54, 62, 64). The PSR reflects that, as to the 2004 conviction, Defendant was adjudicated guilty and sentenced to 180 days county jail with credit for 62 days served. (ECF No. 63, PSR ¶ 14). He contests the use of this conviction as a career offender predicate, claiming that due to the length of his sentence, the conviction should not be counted.
In order to qualify as a career offender pursuant to U.S.S.G. § 4B1.1, a defendant must be at least eighteen years old at the time he committed the offense of conviction, the offense of conviction must be a felony that is either a crime of violence or a controlled substance offense; and defendant must have at least two prior felony convictions of either a crime of violence or a controlled substance offense. U.S.S.G. § 4B1.1(a). A "controlled substance offense" is defined as "an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute or dispense." U.S.S.G. § 4B1.2(b). The commentary further explains that a prior felony conviction signifies a "prior adult felony or state conviction for an offense punishable by death or imprisonment for a term exceeding one year, regardless of whether such offense is specifically designated as a felony and regardless of the actual sentence imposed." USSC § 4B1.2 comment. (n.1). Therefore, the sentence Defendant actually received for his 2004 conviction for the sale of cocaine is irrelevant. Rather it is the maximum sentence he could have received which controls. See Stinson v. United States, 508 U.S. 36, 38 (1993) (holding that Guidelines commentary is authoritative)
Defendant's 2004 conviction fell under section 893.13(1)(a), Florida Statutes which provides that a person may not "sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance." Fla. Stat. 893.13(1)(a). If the controlled substance is cocaine, a conviction under this section is a second degree felony punishable by up to fifteen years imprisonment. See Fla. Stat. §§ 893.01(a), 893.13(1)(a)1; Fla. Stat. § 775.082(3)(d). Therefore, regardless of the punishment he actually received, Defendant's 2004 conviction under § 893.13(1)(a)1 was "punishable" by a term of imprisonment exceeding one year, and thus a proper predicate for the application of the career offender enhancement. Additionally, the court notes that the Eleventh Circuit has expressly held that convictions under section 893.13(1) are "controlled substance offenses." United States v. Smith, 775 F.3d 1262, 1267-1268 (11th Cir. 2014). Counsel was not constitutionally ineffective for his failure to object to the application of the career offender enhancement.
The statutory provision pertaining to Defendant's conviction is not otherwise identified in the record (i.e. the PSR), but Defendant does not dispute this assertion. --------
Despite the clear language of the guideline and commentary, Defendant attempts to bring in other sections of the guideline in support of his position, to no avail. First, he relies on 4B1.2 comment. (n.3) which states that "the provisions of § 4A1.2 (Definitions and Instructions for Computing Criminal History) are applicable to the counting of convictions under §4B1.1." Section 4A1.2(e) provides, in turn, that "Any prior sentence of imprisonment exceeding one year and one month that was imposed within fifteen years of the defendant's commencement of the instant offense is counted. Also count any prior sentence of imprisonment exceeding one year and one month, whenever imposed, that resulted in the defendant being incarcerated during any part of such fifteen-year period." U.S.S.G. § 4A1.2(e). This section is captioned "Applicable Time Period," and governs the age of the convictions which may be considered by the sentencing court. The cases cited by Defendant do not provide authority for a conclusion that § 4A1.2(e) is meant to override the plain language of § 4B1.2. For instance, in United States v. Robertson, 260 F.3d 500, 509 (6th Cir. 2001), the court held that to be countable as a career offender predicate, the prior conviction or some portion of defendant's incarceration thereon must have occurred within fifteen years of the commencement of the instant offense. See also United States v. Munoz-Garcia, 533 F. App'x 364 (5th Cir. 2013).
Defendant's first motion to amend or supplement cites Johnson v. United States, 135 S. Ct. 2551 (2015), Welch v. United States, 136 S. Ct. 1257 (2016), and Molina-Martinez v. United States, 136 S. Ct. 1338 (2016). These cases have no bearing upon Defendant's challenge to the application of the career offender guideline to his case. His second motion to amend or supplement cites a case from the Fifth Circuit, which addressed whether a particular Texas drug conviction was a controlled substance offense under the guidelines. United States v. Hinkle, 832 F.3d 569 (5th Cir. 2016). This case neither overrules binding Eleventh Circuit precedent, nor affects this court's analysis of guideline and commentary as applied to Defendant's conviction under the Florida statute as set forth above.
Conclusion
For all of the foregoing reasons, the court finds that Defendant has failed to show that the claim raised in his motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 has merit. Nor has he shown that an evidentiary hearing is warranted. Therefore Defendant's motion should be denied in its entirety.
CERTIFICATE OF APPEALABILITY
Rule 11(a) of the Rules Governing Section 2255 Proceedings provides that "[t]he district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant," and if a certificate is issued "the court must state the specific issue or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2)." A timely notice of appeal must still be filed, even if the court issues a certificate of appealability. Rule 11(b), § 2255 Rules.
After review of the record, the court finds no substantial showing of the denial of a constitutional right. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000) (explaining how to satisfy this showing) (citation omitted). Therefore, it is also recommended that the court deny a certificate of appealability in its final order.
The second sentence of Rule 11(a) provides: "Before entering the final order, the court may direct the parties to submit arguments on whether a certificate should issue." If there is an objection to this recommendation by either party, that party may bring this argument to the attention of the district judge in the objections permitted to this report and recommendation.
Accordingly, it is ORDERED:
Defendant's "Motion for Leave to Amend Original § 2255 Petition under Rule 15" (ECF No. 111), construed as a motion to supplement, is GRANTED to the extent the court has taken into consideration the argument raised therein in ruling on Defendant's § 2255 motion.
And based on the foregoing, it is respectfully RECOMMENDED:
1. The motion to vacate, set aside, or correct sentence (ECF No. 109) be DENIED.
2. A certificate of appealability be DENIED.
At Tallahassee, Florida, this 27th day of April, 2017.
s/ Charles A. Stampelos
CHARLES A. STAMPELOS
UNITED STATES MAGISTRATE JUDGE
NOTICE TO THE PARTIES
Objections to these proposed findings and recommendations must be filed within fourteen (14) days after being served a copy thereof. Any different deadline that may appear on the electronic docket is for the court's internal use only , and does not control. A copy of objections shall be served upon all other parties. If a party fails to object to the magistrate judge's findings or recommendations as to any particular claim or issue contained in a report and recommendation, that party waives the right to challenge on appeal the district court's order based on the unobjected-to factual and legal conclusions. See 11th Cir. Rule 3-1; 28 U.S.C. § 636.