STANWOOD R. DUVAL, Jr., District Judge.
Before the Court is Michael Minor's Motion to Vacate, Set Aside, or Correct Sentence, under 28 U.S.C. § 2255. (R. Doc. 713). Having reviewed the entirety of the record, the pleadings, memoranda, and relevant law, the Court DENIES the motion for the reasons assigned.
On February 22, 2010, Michael Minor ("Minor") was indicted in a superseding indictment with conspiracy to distribute and possession with intent to distribute one kilogram or more of a substance containing heroin and 500 grams or more of a substance containing cocaine hydrochloride, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 841(b)(1)(B), and 846. Superseding Indictment, R. Doc. 52. On June 4, 2010, the government filed a Superseding Bill of Information removing the cocaine hydrochloride charge. Superseding Information, R. Doc. 160. On June 9, 2010, Minor executed a plea agreement and pled guilty to the one-count superseding bill of information and a bill of information establishing a prior felony drug conviction in open court. Minute Entry, R. Doc. 166. In his plea agreement, the government agreed not to charge Minor with two prior felony drug convictions, which would have subjected him to a mandatory sentence of life in prison. Plea Agreement, R. Doc. 170.
A Pre-Sentence Investigation Report ("PSR") prepared on November 12, 2010 noted that Minor had been shot in the head in 2009 and that he stated that he had suffered from short-term memory loss and seizures as a result of the injury. Minor underwent mental health counseling at Louisiana State University Medical Center and received medication for the seizures. However, he could not recall how many seizures he had since the shooting, and at the time of the writing of the PSR, Minor had discontinued counseling sessions and medication for the seizures and had not experienced seizures since he discontinued the sessions. PSR, R. Doc. 474, ¶ 169.
On March 10, 2011, Minor wrote a letter to the Court requesting new counsel.
In his Section 2255 motion, Minor argues that he had diminished mental capacity at the time of the plea agreement based on a head injury he sustained prior to indictment for drug trafficking. Minor states that he was shot in the left rear side of his head, fracturing his skull, and requiring the removal of a portion of his skull and brain tissue. R. Doc. 713, 3. As a result, he claims that he suffered from a diminished mental capacity with short term memory loss and seizures. R. Doc. 713, 3. Minor requests that his sentence be vacated, alleging first that, "[d]ue to mental and emotional pressures, Movant was unable to weigh his options regarding the entry of a plea, because movant was shot in the head and underwent surgery to repair his skull, prior to being arrested for the present charge." R. Doc. 713, 5. Minor also alleges that his attorney "rendered the guilty plea involuntary because his attorney coerce [sic] him into pleading guilty and not saying nothing [sic] at sentencing." R. Doc. 713, 8. Having been represented by two different attorneys, Minor alleges that his counsel were ineffective for the following reasons: (1) that counsel at sentencing and rearraignment was ineffective for not bringing "to the court's attention his client's serious head injury which may have affected his mental capacity"; (2) that counsel at rearraignment was ineffective for allowing his client to plead guilty "without an inquiry into whether or not, due to the head injury, the plea could have been knowingly, intelligently, and voluntarily rendered"; and (3) that counsel, prior to sentencing, "should have petitioned the court to have his client given a Mental Examination." R. Doc. 713, 5, 10. In addition to the relief regarding his sentence, Minor also requests that the Court grant him a medical examination:
R. Doc. 713, 4. In essence, Minor's request hinges on his allegation of mental incompetence and his counsels' effectiveness in light of his perceived lack of competence.
The United States opposed Minor's Section 2255 motion. In its response, the United States Government contends that: (1) Minor was not mentally incompetent at the time he entered his plea; (2) Minor knowingly and voluntarily waived his right to post-conviction relief, effectively barring his current challenge; and (3) Minor's counsel were effective at rearraignment and sentencing. Govt. Response, R. Doc. 731.
A federal prisoner may move to vacate, set aside, or correct his sentence based on four cognizable grounds: (1) constitutional issues; (2) challenges to the district court's jurisdiction to impose the sentence; (3) challenges to the length of a sentence in excess of the statutory maximum; and (4) claims that the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255; United States v. Placente, 81 F.3d 555, 558 (5th Cir. 1996). These grounds are those "narrow range of injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice." United States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992). Under the Rules Governing Section 2255 Proceedings Rule 4(b), "[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion." However, if the court finds that the prisoner is entitled to relief, it "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." 28 U.S.C. § 2255(b). After reviewing the motion, exhibits, record, the government's answer, and any supplementary materials provided by the parties, the court must determine if an evidentiary hearing is warranted. An evidentiary hearing must be held unless "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief," 28 U.S.C. § 2255(b), or the prisoner fails to show any "independent indicia of the likely merit of [his] allegations." United States v. Edwards, 442 F.3d 258, 264 (5th Cir. 2006); see United States v. Smith, 915 F.2d 959, 964 (5th Cir. 1990) ("If the record is clearly adequate to dispose of the allegations, the court need inquire no further."). The prisoner must establish his claims by a preponderance of the evidence. Wright v. United States, 624 F.2d 557, 558 (5th Cir. 1980).
Minor argues that his mental condition due to his head injury prevented him from understanding or comprehending the court proceedings and his entry of a guilty plea. Minor states that though he "may have [had] a factual awareness of the court proceedings [Minor] lacks a rational understanding of the Court proceedings" as a result of his "diminished mental capacity." R. Doc. 713, 4. Further, he claims that he was "unable to weigh his options regarding the entry of a plea, because movant was shot in the head and underwent surgery to repair his skull, prior to being arrested for the present charge." R. Doc. 713, 5. In essence, Minor alleges that he was not competent at the time he entered his plea, which the Government refutes in its opposition. Minor does not allege that he was denied procedural due process based on the lack of a competency hearing but instead makes a collateral attack on the guilty plea claiming it is invalid because he was incompetent in fact. Bouchillon v. Collins, 907 F.2d 589, 592 n.4 (5th Cir.1990).
Constitutional due process mandates that an accused person may only be convicted while legally competent. Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 838, 15 L.Ed.2d 815 (1966); Lokos v. Capps, 625 F.2d 1258, 1261 (5th Cir. 1980). "This constitutional right cannot be waived by the incompetent—guilty plea or otherwise": it is contradictory to argue that a defendant can knowingly and intelligently waive his rights while incompetent. Bouchillon, 907 F.2d at 592 (citations omitted). The competency standard for pleading guilty is same as at that at trial. Malinauskus v. United States, 505 F.2d 649, 465 (5th Cir. 1974). The test for determining competency is whether the defendant "has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding-and whether he has a rational as well as factual understanding of the proceedings." Dusky v. United States, 362 U.S. 402, 403, 80 S.Ct. 788, 789, 4 L.Ed.2d 824 (1960); see Washington v. Johnson, 90 F.3d 945, 949-50 (5th Cir. 1996); Bouchillon, 907 F.2d at 592. A court must, however, sua sponte conduct an inquiry into a defendant's mental capacity if the evidence raises a bona fide doubt as to the defendant's competency at that time. Lokos v. Capps, 625 F.2d 1258, 1261 (5th Cir. 1980).
Where a petitioner collaterally attacks his guilty plea in a § 2255 motion based on incompetency in fact, the court may deny the motion without a competency hearing if the petitioner or defendant fails to demonstrate "conclusive evidence—and not necessarily direct evidence—that a defendant is entitled to [] relief under § 2255." United States v. Drummond, 910 F.2d 284, 285 (5th Cir. 1990), cert. denied, 498 U.S. 1104, 111 S.Ct. 1006, 112 L.Ed.2d 1088 (1991). Mere conclusory allegations that petitioner is incompetent to plead without setting forth specific facts in support thereof are inadequate to justify granting relief under § 2255 or require a hearing.
Though Minor states that he suffered from a traumatic head injury that gave rise to mental issues, lack of mental competence is not a foregone conclusion: "[n]ot all people who have a mental problem are rendered by it legally incompetent." Bouchillon 907 F.2d at 593. Nothing in the record suggests that Minor could not consult with his attorney or that he did not understand what was happening during rearraignment; it is clear from the record that Minor was not only legally competent at the time he entered his plea, having both a factual understanding of the proceedings against him and a rational understanding as well.
At sentencing, Minor's counsel brought his mental health issue to the court's attention; however, like Minor's counsel at rearraignement, his new attorney stated that "[Minor is] very good at communicating and understanding" and that the attorney had "no issues about that, whatsoever."
In addition to Minor's coherent responses in court proceedings, his motions and letters to the Court demonstrate that he understood the proceedings.
Minor asserts that his counsel was ineffective because his counsel did not investigate whether he was competent to plead before rearraignment or bring his injury to the Court's attention at rearraignment, and that his counsel at sentencing was ineffective for failing to inquire whether he would have received a reduced sentence based on his mental incompetency. See R. Doc. 713, 3-4.
A defendant's section 2255 motion alleging claims of ineffective assistance of counsel may be barred where the defendant validly waived his right to post-conviction relief. A defendant may waive his statutory right to appeal or to post-conviction relief as a part of a plea agreement. United States v. Henderson, 72 F.3d 463, 465 (5th Cir. 1995). When a prisoner waives his right to post-conviction relief, if the waiver is "informed and voluntary" it is an "effective bar to such relief." United States v. Wilkes, 20 F.3d 651 (5th Cir. 1994). However, the Fifth Circuit recognizes an exception to this bar, and an ineffective assistance of counsel claim may survive the waiver "only when the claimed assistance directly affected the validity of that waiver or the plea itself." United States v. White, 307 F.3d 336, 343 (5th Cir. 2002).
To be "informed" or "knowing," the defendant must "know that he had a right to appeal his sentence and that he was giving up that right," United States v. Portillo, 18 F.3d 290, 292 (5th Cir. 1994) (internal citation and quotation marks omitted); in other words, the defendant must have a "full understanding of what the plea connotes and of its consequences," United States v. Hernandez, 234 F.3d 252, 255 (5th Cir. 2000) (internal citations and quotations omitted). Yet the defendant "need only understand the direct consequences of the plea; he need not be made aware [of] every consequence that, absent a plea of guilty, would not otherwise occur." Hernandez, 234 F.3d at 255. Specifically, the consequences of the guilty plea, with respect to sentencing, "mean only that the defendant must know the maximum prison term and fine for the offense charged. . . . [to be] fully aware of his plea's consequences." United States v. Pearson, 910 F.2d 221, 223 (5
Nevertheless, a defendant's waiver of appeal in a plea agreement "may not be enforced against a section 2255 petitioner who claims that ineffective assistance of counsel rendered that waiver unknowing or involuntary." United States v. White, 307 F.3d 336, 341 (5th Cir. 2002) (emphasis in original). If the plea and waiver were knowing and voluntary and the issue challenged on appeal is properly subject to waiver, however, "the guilty plea sustains the conviction and sentence and the waiver can be enforced." Id. at 343-44.
To prove a claim for ineffective assistance of counsel, the petitioner must demonstrate under Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984): (1) that his counsel's performance was deficient because it fell below an objective standard of reasonableness, and (2) that his counsel's deficient performance prejudiced his defense. The errors must be "so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Id. If the petitioner makes an insufficient showing on one prong of the test, the court need not address the other. Strickland, 104 S.Ct. at 2069.
As to the first prong of the Strickland test, the proper standard for evaluating an attorney's performance is that of "reasonably effective assistance" considering the totality of the circumstances and the prevailing professional norms. Id. That is, the "Sixth Amendment requires counsel to conduct a reasonably thorough, independent inquiry into the defenses that might be offered in mitigation of punishment." Ladd v. Cockrell, 311 F.3d 349, 358 (5th Cir. 2002). However, the court's review of counsel's performance is deferential, and the court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. 668, 688, 104 S.Ct. 2052 at 2065.
As to the second prong of the Strickland test, to establish prejudicial error the petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. In guilty plea cases, to establish prejudice, the petitioner 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 v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985). Minor argues that his counsel did not investigate his mental condition and any affects his injury had on his competence to plead and that his counsel did not alert the Court to Minor's mental issues at rearraignment. Counsel has a duty to make a reasonable investigation of a defendant's case and to make a reasonable decision that an investigation is necessary. Strickland, 466 U.S. at 691. The Fifth Circuit has held that where a defendant had a clinically recognized mental disorder that implicated the defendant's only defense and defendant's counsel had reason to believe an investigation was warranted, the decision not to pursue an insanity defense was not a tactical decision and constituted ineffective assistance. Bouchillon, 907 F.2d at 595. However, "Bouchillon does not articulate a per se rule that an attorney who fails to investigate the possibility of mental defects or organic brain damage fails the first Strickland prong." Simmons v. Epps, 381 F. App'x 339, 349 (5th Cir. 2010). The Fifth Circuit limited the holding in Bouchillon to the particular facts of the case noting that, as to the duty to investigate, counsel cannot depend on "his or her own evaluation of someone's sanity once he has a reason to believe an investigation is warranted because, where such a condition exists, the defendant's attorney is the sole hope that it will be brought to the attention of the court." Id. at 596.
To support a claim of inadequate investigation, the petitioner must specify want additional investigation would be required and why the additional evidence would have persuaded the defendant not to enter the plea of guilty. Miller v. Dretke, 420 F.3d 356, 361 (5th Cir.2005). Absence of factual information supporting the petitioner's claim may preclude any conclusion that counsel's decision was unreasonable.
As discussed above, Minor's attorney at rearraignment was satisfied that Minor competent. Minor testified to his own health status at rearraignment, and the Court found him competent to plead. Although Minor's PSR indicates his history of brain injury and mental issues relating to the injury, it does not demonstrate that Minor was mentally incompetent at the time of entering his plea.
Moreover, Minor cannot show that he was prejudiced by the entry of this plea. Without the plea, Minor would have been subject to a mandatory life sentence, but his plea agreement reduced his sentence to twenty years. Most importantly, at sentencing, Minor chose to inform the Court of his mental history—although it was already known through the information in the PSR—and still declined to withdraw his plea. Indeed, his desire to maintain his plea remains constant, as he expressed in his instant motion.
Minor makes a brief allegation that "his attorney coerce him into pleading guilty and not saying nothing at sentencing," in his motion. R. Doc. 713, 8. Yet the record reflects quite the opposite. The Court asked Minor if anyone had made any promises to him that persuaded him to plead guilty other than what was outlined in the plea agreement, to which he responded that they had not, and whether, prior to accepting the plea, Minor was pleading guilty voluntarily and of his own free will, to which he answered that he was. Rearr. Trans., 14, 26. Far from coercion, Minor consulted with his attorney extensively before accepting the plea agreement as he acknowledged in his own letter to the Court.
In conclusion, Minor has failed to show that either counsel was ineffective or that any deficient performance affected the validity of the plea or waiver of post-conviction relief. Because Minor has failed to present any evidence entitling him to relief, no evidentiary hearing or any competency hearing or evaluation is warranted under these facts and no appointment of counsel is necessary as to this section 2255 motion, as Minor had requested.
