LANCE M. AFRICK, District Judge.
Before the Court is pro se prisoner and petitioner Sonny Scott's ("Scott") motion
On April 6, 2017, Scott pled guilty to a one-count superseding bill of information, which charged him with being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2); there was no plea agreement.
On July 13, 2017, following Scott's guilty plea, which was entered and accepted on April 6, 2017, the Court sentenced Scott to a term of imprisonment of 100 months.
Section 2255 is designed to remedy constitutional errors and certain other injuries that could not be brought on direct appeal and would result in injustice if left unaddressed. United States v. Williamson, 183 F.3d 458, 462 (5th Cir. 1999). Accordingly, the law allows a prisoner in federal custody to bring a motion to vacate, set aside, or correct his sentence in the court that imposed the sentence based on four grounds for relief:
28 U.S.C. § 2255(a). The § 2255 proceeding functions as "an independent and collateral inquiry into the validity of [a] conviction." United States v. Hayman, 342 U.S. 205, 222-23 (1952).
A defendant may only raise "issues of constitutional or jurisdictional magnitude." United States v. Shaid, 937 F.2d 228, 232 (5th Cir. 1991), cert. denied, 502 U.S. 1076 (1992) (citing Hill v. United States, 368 U.S. 424, 428 (1962)). Additionally, "[t]he Supreme Court has emphasized repeatedly that a collateral challenge may not do service for an appeal." Id. at 231 (internal quotation marks omitted). Thus, a defendant generally "may not raise an issue for the first time on collateral review without showing both `cause' for his procedural default, and `actual prejudice' resulting from the error." Id. at 232 (quoting United States v. Frady, 456 U.S. 152, 165 (1982)).
Scott asserts two grounds for relief. First, he challenges his conviction by arguing that his trial counsel provided him with ineffective assistance.
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court articulated a two-part test for determining whether a defendant's assistance of counsel was constitutionally deficient. This test requires the petitioner to show both (1) deficient performance of counsel and (2) resulting prejudice from the deficient performance. Strickland, 466 U.S. at 687. The petitioner must satisfy both prongs of the Strickland test. Id. at 697. A court is not required to address Strickland's two prongs in any particular order. Id. If it is possible to dispose of an ineffective assistance of counsel claim without addressing both prongs, then "that course should be followed." Id.
A petitioner can demonstrate deficient performance and establish the first prong by "show[ing] that [his] counsel's representation fell below an objective standard of reasonableness." Id. at 688. In evaluating an attorney's past performance on his client's behalf, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. In other words, "[j]udicial scrutiny of counsel's performance must be highly deferential." Id. The Court must take care to avoid casting counsel's every "act or omission" in the "harsh light of hindsight." Bell v. Cone, 535 U.S. 685, 702 (2002).
Strickland's second prong requires a petitioner to show that his counsel's deficient performance prejudiced him. Prejudice requires "a reasonable probability that, but for counsel's unprofessional errors, the result of the judicial proceeding would have been different." Strickland, 466 U.S. at 694. A "reasonable probability" is "a probability sufficient to undermine confidence in the outcome" of the proceeding. Id. In the context of a guilty plea, the prejudice requirement "focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process." Hill v. Lockhart, 474 U.S. 52, 59 (1985). Thus, in challenging a guilty plea on grounds of ineffective assistance, a 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." Id. "[T]he mere possibility of a different outcome is not sufficient. . . ." Crane v. Johnson, 178 F.3d 309, 312 (5th Cir. 1999) (emphasis added). The petitioner "must affirmatively prove, not just allege, prejudice." Day v. Quarterman, 566 F.3d 527, 536 (5th Cir. 2009) (emphasis added). The Court will address Scott's ineffective assistance of counsel claims in turn.
First, Scott argues that his attorney failed to negotiate a favorable plea.
Under the first prong of the Strickland test, Scott must show that his counsel's purported failure "fell below an objective standard of reasonableness." 466 U.S. at 688. To the extent Scott argues that his counsel should have attempted to negotiate a plea agreement, his argument fails because "a defendant has no right to be offered a plea agreement." Robles-Pantoja v. United States, No. 09-88, 2015 WL 13534221, at *4 (W.D. Tex. Sept. 30, 2015) (citing Lafler v. Cooper, 566 U.S. 156, 168 (2012)). Most courts treat Scott's argument as a "non-starter": because "there is no duty to initiate plea negotiations or request a plea agreement, . . . failing to do so cannot constitute deficient performance under the first prong of Strickland." Id. (citations omitted).
Furthermore, Scott does not specify what about his plea was unfavorable; nor does he indicate what information his counsel had access to that would have permitted her to successfully negotiate an agreement which would have been advantageous to him. Finally, Scott does not contend that he was offered a more favorable plea but rejected the offer at the advice of his counsel. His allegation is insufficient to overcome the "strong presumption" that his counsel provided him with reasonable, professional assistance. Id. at 689; cf. United States v. Moya, 676 F.3d 1211, 1214 (10th Cir. 2012) (holding that the defendant's ineffective assistance of counsel claim "lacked any colorable merit," in part because he did not allege any facts suggesting that his attorney could have successfully negotiated a plea agreement with the terms that the defendant desired).
Scott next argues that his plea was involuntary and unintelligent because his counsel persuaded him to plead guilty by promising him that he would receive a different sentence than the sentence the Court actually imposed.
Later in the hearing, the Court pointedly asked Scott whether anyone had told him that he would receive a particular sentence.
The record reflects that, on the date Scott pled guilty, he understood that the Court was the ultimate decisionmaker as to his sentence and that, in turn, Scott was not guaranteed any precise sentence. "Ordinarily a defendant will not be heard to refute his testimony given under oath when pleading guilty." United States v. Fuller, 769 F.2d 1095, 1099 (5th Cir. 1985) (quoting United States v. Sanderson, 595 F.2d 1021, 1021 (5th Cir. 1979). There is nothing in the record to suggest that Scott only pled guilty as the result of a promise that he would receive a specific sentence. In fact, when asked whether he had been influenced or persuaded to plead guilty because of a promise of leniency, he said, "No."
Scott also argues that his counsel failed to adequately explain his plea to him and that she failed to provide him with enough time to review and consider the plea.
During his rearraignment, after the Court described each of the rights that Scott was waiving or giving up by pleading guilty, Scott was questioned about whether he understood the consequences of his plea.
Scott also indicated that he was satisfied with his counsel's assistance leading up to his decision to plead guilty:
Moreover, Scott's plea was not particularly complex or difficult to understand. He was charged with a single count, alleging that he illegally possessed a firearm. At his rearraignment, the Court explained to Scott the charged offense as it was described in the superseding bill of information—namely that he was found in possession of a firearm, having been previously convicted of two felonies.
Scott represented to the Court that he understood the charge against him and what the government would have to prove at trial to convict him.
Although Scott now argues that he explained to the Court at the time of his sentencing that he did not fully understand the rights that he was waiving by pleading guilty, the record does not support his contention. Scott did indicate that he had not had enough time to review the presentence investigation report (the "PSR") with his counsel;
With respect to his assertion that he did not understand the PSR, when Scott indicated at sentencing that he had not had enough time to review it, the Court gave him additional time to do so:
After the recess, the Court clarified with both Scott and his attorney that it was appropriate to proceed with sentencing:
The Court then paused the proceedings to allow Scott to read the government's sentencing memorandum and the opposition memorandum filed by Scott's counsel on his behalf, after which the following colloquy occurred:
To the extent Scott argues that his counsel failed to provide him with effective assistance at sentencing, in addition to the fact that the record reflects that Scott was satisfied with his counsel's assistance, the Court finds that Scott's counsel provided him with adequate representation. Indeed, his counsel filed multiple objections to the PSR—three of which the Court sustained. Scott has not specified what additional objections should have been filed; nor has he shown that, had his counsel filed any additional objections, he would have received a more favorable sentence. See United States v. Grammas, 376 F.3d 433, 439 (5th Cir. 2004) (explaining that, to show prejudice, a defendant must demonstrate a reasonable probability that, but for his counsel's actions, he would have received a lesser sentence) (citing United States v. Glover, 531 U.S. 198, 203 (2001)). Scott may be dissatisfied with the sentence he received, but the Court's decision to depart upward and impose a sentence outside of the guidelines range applicable to his case was based in part on the nature and extent of Scott's criminal history, which could not have been negated by anything his counsel could have said or done.
Scott also claims that his counsel failed to file an appeal despite his request that she do so.
Having reviewed each of the foregoing arguments as to Scott's ineffective assistance of counsel claim, the Court concludes that Scott has failed to establish either prong of the Strickland test. He has not demonstrated that his counsel's conduct fell below an objectively reasonable standard; nor has he demonstrated that he suffered any prejudice as a result of the aforementioned aspects of her representation. As a result, with respect to those claims, no evidentiary hearing is necessary, and Scott's petition is denied.
With respect to Scott's final ineffective assistance of counsel claim, the Court finds that an evidentiary hearing is necessary. Scott's final argument as to his first ground for relief is that his counsel was ineffective when she failed to seek suppression of the evidence that was obtained during the search of his person conducted on the night of his arrest.
"A section 2255 movant who fails to raise a constitutional . . . issue on direct appeal waives the issue for a collateral attack on his conviction, unless there is cause for the default and prejudice as a result." United States v. Kallestad, 236 F.3d 225, 227 (5th Cir. 2000). To establish cause for a procedural default, a petitioner must "show that `some objective factor external to the defense' prevented him from raising on direct appeal the claim he now advances." United States v. Guerra, 94 F.3d 989, 993 (5th Cir. 1996) (quoting Romero v. Collins, 961 F.2d 1181, 1183 (5th Cir. 1992)). As to the prejudice, it must be "actual." United States v. Willis, 273 F.3d 592, 595 (5th Cir. 2001) (quoting Frady, 456 U.S. at 167-68). "A mere possibility of prejudice will not satisfy the actual prejudice prong of the cause and prejudice test . . . ." Shaid, 937 F.2d at 236.
Scott does not argue that cause exists for his failure to raise his Fourth Amendment argument on direct appeal. But, as the Court has already explained, he does argue that his counsel was ineffective by failing to file a motion to suppress the evidence obtained from the allegedly unlawful search.
To establish that his counsel was ineffective—which is required both to prove his remaining Sixth Amendment claim and to overcome the government's allegation that his Fourth Amendment claim is procedurally barred—Scott must demonstrate that his counsel's failure to file a motion to suppress fell below an objective standard of reasonableness and that he was actually prejudiced as a result.
United States v. Dowling, 458 F. App'x 396, 397-98 (5th Cir. 2012) (quoting Kimmelman v. Morrison, 477 U.S. 365, 375 (1986)). In determining whether counsel's decision was objectively reasonable,
Id. at 440-41.
Pursuant to the Supreme Court's decision in Terry v. Ohio, 392 U.S. 1 (1968), "where there is a reasonable and articulable suspicion that a person has committed a crime, a search and seizure is not unreasonable." United States v. Thomas, 12 F.3d 1350, 1366 (5th Cir. 1994). "[I]f the detaining officer can `point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the search and seizure],' the intrusion is lawful." Id. (quoting Terry, 392 U.S. at 21). Courts "employ a two-part test to determine the legality of police investigatory stops." United States v. Cavitt, 550 F.3d 430, 435 (5th Cir. 2008). First, courts "examine whether the officer's action was justified at its inception, and then inquire into whether the officer's subsequent actions were reasonably related in scope to the circumstances that justified the stop." Id. at 435-36 (quoting United States v. Brigham, 382 F.3d 500, 506 (5th Cir. 2004)). Reasonableness is "measured `in objective terms by examining the totality of the circumstances.'" Brigham, 382 F.3d at 507 (quoting Ohio v. Robinette, 519 U.S. 33, 39 (1996)).
"[C]ourts must allow law enforcement `officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person.'" Id. (quoting United States v. Arvizu, 534 U.S. 266, 273 (2002) (internal quotation marks omitted)). "Any analysis of reasonable suspicion is necessarily factspecific, and factors which by themselves may appear innocent, may in the aggregate rise to the level of reasonable suspicion." United States v. Ibarra-Sanchez, 199 F.3d 753, 759 (5th Cir. 1999). However, "[o]fficers must base their reasonable suspicion on `specific and articulable facts,' not merely `inarticulate hunches' of wrongdoing." Id. at 758 (quoting Terry, 392 U.S. at 22). Additionally, "a Fourth Amendment violation occurs when the detention extends beyond [any] valid reason for the stop." United States v. Santiago, 310 F.3d 336, 341 (5th Cir. 2002).
The reasonable-suspicion test concerns the basis of the initial detention. See United States v. Scroggins, 599 F.3d 433, 441 (5th Cir. 2010). Once the investigatory stop has occurred, "[i]n order to ensure their safety during the stop, police may frisk the subject for weapons that they reasonably suspect he may carry." Id. "The purpose of the frisk is to afford an officer the opportunity to protect himself from attack by a hostile suspect.'" Id. (quoting Adams v. Williams, 407 U.S. 143, 146 (1972)). However, Terry permits "only a limited pat-down search to determine whether the suspect is carrying a weapon." United States v. Zavala, 541 F.3d 562, 576 (5th Cir. 2008). "If the protective search goes beyond what is necessary to determine if the suspect is armed, it is no longer valid under Terry and its fruits will be suppressed." Id. (quoting Minnesota v. Dickerson, 508 U.S. 366, 373 (1993)).
The facts in the record that pertain to the search are scant, and those facts that do exist give the Court pause. With respect to the officers' reasonable suspicion, which served as the basis for the search of Scott's person, the factual basis states only that Scott was observed in an area that DEA agents knew from prior experience to be a common location for drug trafficking and that the agents observed Scott meet with another individual and "quickly depart" the area.
The government now contends that, at a suppression hearing, an agent would have testified that he "believed" Scott took part in a hand-to-hand drug transaction.
The government also emphasizes that the area where Scott was initially observed was known to officers as a common location for drug trafficking.
Finally, the government focuses on the presence in the area of an Audi that belonged to the intended target of the agents' investigation.
Moreover, there is nothing in the record explaining why Scott's trial counsel chose not to file a motion to suppress, making it difficult to determine whether her failure to do so was a deliberate and strategic decision—let alone a reasonable one. Based on the evidence before the Court, the Court cannot conclude that a motion to suppress would have failed. And because Scott contends that he would have proceeded to trial if such a motion had been filed and granted—a logical conclusion and likely result considering that the evidence obtained as a result of the search was the sole evidence in the case—the Court also cannot conclude that Scott did not suffer any prejudice as a result of his counsel's decision not to file the motion.
Ultimately, the facts evidenced in the record do not "conclusively show that [Scott] is entitled to no relief." Bartholomew, 974 F.2d at 41. An evidentiary hearing is therefore necessary to develop the record and, in turn, to allow the Court to resolve Scott's remaining claims. See United States v. Samaniego, 532 F. App'x 531, 535 (5th Cir. 2013) ("Given the lack of any factual findings at an evidentiary hearing, or a response from [the petitioner's] trial attorney, there is nothing in the record showing counsel's reasons for not filing a motion to suppress or whether his performance was constitutionally deficient for failing to do so.").
Accordingly,
Additionally, when asked at his rearraignment whether his counsel had failed to investigate or follow up on anything related to Scott's defense that he had requested she investigate or follow up on, he answered, "No." R. Doc. No. 60, at 18. His counsel was also asked if she had been given a full opportunity to investigate the facts and law applicable to Scott's case. Id. at 17. She answered that she had. Id.
R. Doc. No. 60, at 22.
