STEVEN D. MERRYDAY, District Judge.
Jerry Alan Bottorff and Cristie Fay Bottorff married after successfully hiring another to murder her then — husband, after which she claimed proceeds of a million-dollar-life-insurance policy. The couple were both arrested nearly four years after the murder and indicted for (1) use of interstate commerce facilities in the commission of a murder-for-hire, (2) conspiracy to use interstate commerce facilities in the commission of a murder-for-hire, and (3) aiding or abetting carrying or using a firearm that resulted in death. The Bottorffs faced the possibility of the death penalty, but a year after the indictments the Attorney General disapproved seeking a sentence of death. (Doc. 125 in 8:11-cr-269-T-23AEP) Approximately two weeks later the Bottorffs pleaded guilty without a plea agreement, were sentenced to life imprisonment, unsuccessfully appealed, and filed identical motions to vacate under 28 U.S.C. § 2255. The motions to vacate, which allege that counsel rendered ineffective assistance, lack merit.
The Bottorffs hired a gang member as an intermediary to retain someone to murder Cristie's then-husband, Thomas Sehorne. The Department of Justice disallowed pursuing the death penalty. On the morning of the scheduled trial the Bottorffs decided to plead guilty and cooperate with the United States in the hope of reducing their sentences. Both Bottorffs faced a statutory mandatory minimum sentence of life imprisonment unless the United States moved under Section 5K1.1 for a reduced sentence as authorized by the Sentencing Guidelines.
The prosecutor recited the following facts when the Bottorffs pleaded guilty (Doc. 279 at 29-31):
The Bottorffs agreed to the accuracy of the facts when they pleaded guilty (Doc. 279 at 31-32):
Additionally, the Bottorffs accepted the factual accuracy of their respective presentence report. (Docs. 277 at 4 and 281 at 4) The United States' evidence against the Bottorffs included statements by Michael Garcia (the individual they hired to arrange for Mr. Sehorne's murder) implicating the Bottorffs and the testimony of undercover police officers who met with the Bottorff's during the investigation.
Absent extraordinary circumstances, the above facts bind both defendants. "[T]he representations of the defendant . . . [at the plea proceeding] as well as any findings made by the judge accepting the plea, constitute a formidable barrier in any subsequent collateral proceedings. Solemn declarations in open court carry a strong presumption of verity." Blackledge v. Allison, 431 U.S. 63, 73-74 (1977).
The Bottorffs cooperated and, as hoped, the United States moved for a two-level reduction under Section 5K1.1. Nevertheless, both defendants were sentenced to life imprisonment. Upon reconsideration of the sentences, the district court again explained why both defendants earned life imprisonment (Doc. 242 at 2-3):
Lee Sehorne in his driveway by a nineteen-year-old whose amateurish services were procured by a former gang member and current thug, selected by the Bottorffs precisely owing to his gang history and his notorious thuggishness. Cristie Bottorff's murdered husband lay for hours in his driveway, near his car, in a pool of blood, and in an army of insects until discovered after daylight by his six-year-old son. Through this and during the coming months, the Bottorffs focused on the pursuit of money and the comfortable living of their daily lives unburdened by Cristie Bottorff's husband. In sum, my reconsideration of the Bottorffs' life sentence has reinforced my commitment to the necessity of the sentence. The only doubt that lingers after reconsideration of the Bottorffs' crime arises while trying to imagine the Department of Justice's justification in forbearing the death penalty. Whatever the justification, the Bottorffs should be thankful for the Department's puzzling and unbought gift.
First, the appellate court accurately describes the sentences of life imprisonment as "the district court [having] actually granted the government's substantial assistance motion pursuant to United States Sentencing Guidelines § 5K1.1, departed downward, and then imposed an upward variance." (Docs. 343 at 2 and 344 at 2-3) Second, the appellate court held that the Bottorffs proved that their respective sentence was neither procedurally nor substantively unreasonable.
Tollett v. Henderson, 411 U.S. 258, 267 (1973), holds that a guilty plea waives a non-jurisdictional defect:
This waiver of rights precludes most challenges to the conviction. "[W]hen the judgment of conviction upon a guilty plea has become final and the offender seeks to reopen the proceeding, the inquiry is ordinarily confined to whether the underlying plea was both counseled and voluntary." United States v. Broce, 488 U.S. 563, 569 (1989). See also United States v. Patti, 337 F.3d 1217, 1320 (11th Cir. 2003) ("Generally, a voluntary, unconditional guilty plea waives all non-jurisdictional defects in the proceedings."), and Wilson v. United States, 962 F.2d 996, 997 (11th Cir. 1992) ("A defendant who enters a plea of guilty waives all non-jurisdictional challenges to the constitutionality of the conviction, and only an attack on the voluntary and knowing nature of the plea can be sustained."). A guilty plea waives a claim based on a pre-plea event, including a claim of ineffective assistance of counsel. Wilson, 962 F.2d at 997. Consequently, the entry of a guilty plea waives a claim (other than a jurisdictional challenge or a challenge to the voluntariness of the plea), including both a substantive claim and a purported failing of counsel that occurred before entry of the plea.
A plea waives both known and unknown challenges to the proceedings. Brady v. United States, 397 U.S. 742, 757 (1970) ("A defendant is not entitled to withdraw his plea merely because he discovers long after the plea has been accepted that his calculus misapprehended the quality of the State's case or the likely penalties attached to alternative courses of action. More particularly, absent misrepresentation or other impermissible conduct by state agents . . . a voluntary plea of guilty intelligently made in the light of the then applicable law does not become vulnerable because later judicial decisions indicate that the plea rested on a faulty premise."). See also McMann v. Richardson, 397 U.S. 759, 766 (1970) (holding that a plea waives the right to trial and, therefore, waives the "right to contest the admissibility of any evidence the State might have offered against the defendant").
Bottorff claims ineffective assistance of counsel, a difficult claim to sustain. "[T]he cases in which habeas petitioners can properly prevail on the ground of ineffective assistance of counsel are few and far between." Waters v. Thomas, 46 F.3d 1506, 1511 (11th Cir. 1995) (en banc) (quoting Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994)). As Sims v. Singletary, 155 F.3d 1297, 1305 (11th Cir. 1998), explains, Strickland v. Washington, 466 U.S. 668 (1984), governs an ineffective assistance of counsel claim:
Strickland requires proof of both deficient performance and consequent prejudice. Strickland, 466 U.S. at 697 ("There is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one."); Sims, 155 F.3d at 1305 ("When applying Strickland, we are free to dispose of ineffectiveness claims on either of its two grounds."). "[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, 466 U.S. at 690. "[A] court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." 466 U.S. at 690. Strickland requires that "in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." 466 U.S. at 690.
Bottorff must demonstrate that counsel's alleged error prejudiced the defense because "[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." 466 U.S. at 691-92. To meet this burden, Bottorff must show "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." 466 U.S. at 694.
Strickland cautions that "strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." 466 U.S. at 690-91. Bottorff cannot meet his burden merely by showing that the avenue chosen by counsel proved unsuccessful.
White v. Singletary, 972 F.2d 1218, 1220-21 (11th Cir. 1992). Accord Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000) ("To state the obvious: the trial lawyers, in every case, could have done something more or something different. So, omissions are inevitable . . . . [T]he issue is not what is possible or `what is prudent or appropriate, but only what is constitutionally compelled.'") (en banc) (quoting Burger v. Kemp, 483 U.S. 776, 794 (1987)). See also Jones v. Barnes, 463 U.S. 745, 751 (1983) (counsel has no duty to raise a frivolous claim).
As stated at the outset, both defendants filed a motion to vacate and a supporting memorandum. The grounds for relief are addressed together because the same grounds are alleged in both motions to vacate and supporting memoranda.
The Bottorffs allege that their trial counsel "ambushed" them on the morning of trial and coerced them into pleading guilty because counsel were unprepared for trial, contrary to the earlier assurances of "an outstanding chance of acquittal of all charges." (Jerry Bottorff, Doc. 2 at 26; Cristie Bottorff, Doc. 2 at 19) The Bottorffs complain that counsel neither investigated the case nor discussed the government-provided discovery material nor filed pre-trial motions nor acquired a written plea agreement. The Bottorffs assert that neither of them would have pleaded guilty "if they ever believed or anticipated even a shred of a chance that they could get life in prison." (Jerry Bottorff, Doc. 2 at 30; Cristie Bottorff, Doc. 2 at 23)
The record shows that the Bottorffs pleaded guilty without declaring counsels' now-alleged pretrial failings (Doc. 279 at 13-15):
The Bottorffs pleaded guilty with a full understanding that they faced a mandatory term of life imprisonment (Doc. 279 at 17):
The only hope the Bottorffs had of possibly avoiding a mandatory sentence of life imprisonment was to cooperate and the United States decide that their assistance was substantial (Doc. 279 at 18-19):
Lastly, because no right to a plea agreement exists the Bottorffs complaint that their counsel failed to secure a written plea agreement lacks merit. Weatherford v. Bursey, 429 U.S. 545, 561 (1977) ("[T]here is no constitutional right to plea bargain."); Missouri v. Frye, 132 S.Ct. 1399, 1410 (2012) ("[A] defendant has no right to be offered a plea, see Weatherford, 429 U.S., at 561 . . . nor a federal right that the judge accept it, Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L. Ed. 2d 427 (1971)."). Moreover, even if the Bottorffs counsel had requested a written plea agreement, the United States had the discretion to reject the request. United States v. Palmer, 809 F.2d 1504, 1508 (11th Cir. 1987) ("A myriad of factors enter into plea bargaining decisions, and the decision to reject a proposed deal is entirely within the prosecutor's discretion.").
The Bottorffs pleaded guilty soon after the possibility of the death penalty was removed. Their only hope of avoiding life imprisonment was to plead guilty and cooperate. As discussed above, their pleas waived the present complaints about their counsel. Their representations when they pleaded guilty belie the contrary assertions in their present papers.
The Bottorffs allege that the United States breached the plea agreement and that their counsel failed to object to the violation. The cases that the Bottorffs cite are based on the violation of a written plea agreement, which does not exist in this case. As shown above, when the Bottorffs pleaded guilty they admitted both the absence of a plea agreement and the absence of either a promise or a threat that caused them to plead guilty. Both defendants represented that they were "satisfied with [their] decision to plead guilty . . . without the benefit of a plea agreement?" (Doc. 279 at 13-14)
The United States allowed the Bottorffs to cooperate in an attempt to gain a sentence reduction under Section 5K1.1, a motion that the United States later filed in recognition of their substantial assistance. (Doc. 231 in 8:11-cr-269-T-23AEP) The Bottorffs were fully advised that the district judge was not required to grant a Section 5K1.1 reduction and that they could not withdraw the guilty plea if a reduction was not granted. (Doc. 279 at 18)
The Bottorffs allege that their Fourth Amendment rights were violated when law enforcement officers seized their cellular telephones and other private property without a warrant. When the Bottorffs pleaded guilty they admitted they understood that they were waiving their right to challenge the validity of the search (Doc. 279 at 27):
The Bottorffs are precluded from contesting the lack of a search warrant. McMann v. Richardson, 397 U.S. 759, 766 (1970) (holding that a plea waives the right to trial and, therefore, waives the "right to contest the admissibility of any evidence the State might have offered against the defendant").
The Bottorffs allege that their counsel rendered ineffective assistance "during the plea process in contravention of Lafler v. Cooper[, 132 S.Ct. 1376 (2012)] and Missouri v. Frye[, 132 S.Ct. 1399 (2012)]." The Bottorffs contend that "any negotiated plea should have been effectuated in writing, as well as all promises and inducements. Moreover, counsel should have bound the government and [the] court, pursuant to Fed. R. Crim. P. 11(C)(1)(c) with a maximum cap on their sentence, and as to the effects of cooperation, or resolution and disposition of the case." (Jerry Bottorff, Doc. 2 at 52; Cristie Bottorff, Doc. 2 at 45) Neither Lafler nor Frye applies. As shown above, a plea agreement was never offered to the Bottorffs, and a defendant has no right to require a prosecutor to agree to plea bargain.
The Bottorffs allege that they "never aided nor abetted either Garcia or Lopez in the commission of the charged offense," that they "never thought [the murder] would actually happen," that "[t]here is not a scintilla of evidence presented the Bottorffs ever met the shooter Lopez, and it must be emphasized no plan, schedule, or any details of what was to occur were ever discussed," and "[t]here exists not a shred of credible, believable nor logical evidence that the Bottorffs had any notice that Garcia, and Lopez scheduled the killing of Sehorne and had planned the event." (Jerry Bottorff, Doc. 2 at 55-60; Cristie Bottorff, Doc. 2 at 51-53) As the transcript of the re-arraignment shows, these startling assertions are resoundingly refuted by the incontestible facts. The Bottorffs conceived and set in motion the events that led to the slaying of Mr. Sehorne, and they had ample opportunity — perhaps during one of the approximately forty conversations with Garcia — to stop the intended outcome if, as they now allege, they did not believe that Garcia would fulfill his end of the contract. As the district court observed before imposing Jerry Bottorff's sentence, "this defendant procured the services of Mr. Garcia, a many-times convicted felon. I must say that if I were going to hire somebody to commit a murder that I did not expect to actually commit the murder, I might [hire a choirmaster] at the church or maybe the bus driver on a school bus. I don't know that I would go out and get a many-times convicted felon who was [late of] a notorious gang noted for its violence. It's hard, actually, to think of someone more likely to be able to procure a murder than the person contacted here." (Doc. 281 at 17)
The Bottorffs allege that "appellate counsel were clearly ineffective." The Bottorffs' trial counsel were also their appellate counsel. The Bottorffs complain that the only issue raised on appeal was the reasonableness of the life sentences, and they contend that "astute and competent counsel would have raised seminal legal and factual issues . . . ." (Jerry Bottorff, Doc. 2 at 63; Cristie Bottorff, Doc. 2 at 56)
Strickland governs an ineffective assistance of appellate counsel claim. Proof that appellate counsel omitted an issue on appeal is not proof of deficient performance because counsel need not raise every non-frivolous issue. Jones v. Barnes, 463 U.S. 745 (1983); Eagle v. Linahan, 279 F.3d 926, 940 (11th Cir. 2001) (citing Barnes). An appellate advocate provides effective assistance by winnowing out weaker claims and focusing on the appellate claims most likely to prevail:
Johnson v. Alabama, 256 F.3d 1156, 1188 (11th Cir. 2001), cert. denied 535 U.S. 926 (2002).
The Bottorffs complain that, because counsel were ineffective at trial, new counsel was required for the appeal because trial counsel "could not have been expected to raise [the ineffectiveness] issue. (Jerry Bottorff, Doc. 2 at 64; Cristie Bottorff, Doc. 2 at 57) Even new counsel could not assert trial counsel's ineffectiveness because claims of ineffective assistance of trial counsel are not reviewable on direct appeal. United States v. Tyndale, 209 F.3d 1292, 1294 (11th Cir. 2001).
The Bottorffs allege that trial counsel were ineffective for not moving for the recusal of the district judge, and the motions to vacate seek the district judge's recusal from ruling on the motions to vacate. The basis for their belief of bias is the imposition of life sentences and the subsequent refusal to reduce the sentences upon reconsideration.
Recusal is governed by 28 U.S.C. § 455, which requires a judge to "disqualify himself in any proceeding in which his impartiality might reasonably be questioned." The standard for determining recusal is "whether an objective, disinterested, lay observer fully informed of the facts underlying the grounds on which recusal was sought would entertain a significant doubt about the judge's impartiality." United States v. Patti, 337 F.3d 1317, 1321 (11th Cir. 2003) (citation omitted), cert. denied, 540 U.S. 1149 (2004). The alleged bias must be personal, not simply based on adverse rulings. "[I]t is well settled that the allegation of bias must show that the bias is personal as distinguished from judicial in nature. As a result, except where pervasive bias is shown, a judge's rulings in the same or a related case are not a sufficient basis for recusal." Bolin v. Story, 225 F.3d 1234, 1239 (11th Cir. 2000) (citations omitted). See also Byrne v. Nezhat, 261 F.3d 1075, 1103 (11th Cir. 2001) ("[A]dverse rulings alone do not provide a party with a basis for holding that the court's impartiality is in doubt.").
First, because the basis for the district judge's purported bias was the life sentences, trial counsel could not possibly have moved for a recusal before the district judge determined each appropriate sentence. Second, the sentences are based not on bias but are based on the egregious, cold-blooded facts of two individuals who contracted for the murder of Mr. Sehorne, after which Mrs. Bottorff claimed the proceeds of a million-dollar-life-insurance policy on her late husband. Moreover, the appellate court held that the Bottorffs failed to prove that their respective sentences were either procedurally or substantively unreasonable. (Docs. 343 and 344)
Accordingly, the motions under Section 2255 to vacate the sentences (Doc. 1 in 8:14-cv-3113-T-23AEP and Doc. 1 in 8:14-cv-3184-T-23 AEP) are DENIED. The clerk must (1) enter a judgment against Jerry Bottorff in 8:14-cv-3113-T-23AEP and against Cristie Bottorff in 8:14-cv-3184-T-23 AEP and (2) close each case.
Bottorff is not entitled to a certificate of appealability ("COA"). A prisoner moving under Section 2255 has no absolute entitlement to appeal a district court's denial of his motion to vacate. 28 U.S.C. § 2253(c)(1). Rather, a district court must first issue a COA. Section 2253(c)(2) permits issuing a COA "only if the applicant has made a substantial showing of the denial of a constitutional right." To merit a certificate of appealability, Bottorff must show that reasonable jurists would find debatable both (1) the merits of the underlying claims and (2) the procedural issues he seeks to raise. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 478 (2000); Eagle v. Linahan, 279 F.3d 926, 935 (11th Cir 2001). Because he fails to show that reasonable jurists would debate the merits of the claims, the Bottorffs are entitled to neither a certificate of appealability nor an appeal in forma pauperis.
Accordingly, a certificate of appealability is DENIED. Leave to appeal in forma pauperis is DENIED. Bottorff must obtain authorization from the circuit court to appeal in forma pauperis.
ORDERED.
