INGE PRYTZ JOHNSON, Senior District Judge.
Petitioner John Forrest Coon is serving a 180 month sentence that the Court imposed in 2008 after Mr. Coon pled guilty to charges concerning his illegal possession of firearms. Pursuant to 28 U.S.C. § 2255, Mr. Coon asks the Court to vacate, set aside, or correct his federal sentence. (Doc. 1).
The indictment in this case charges that on two separate occasions, Mr. Coon, a convicted felon, possessed a firearm in violation of 18 U.S.C. § 922(g)(1). (Crim. Doc. 1). To establish that Mr. Coon was a convicted felon at the time of the charged violations of § 922(g)(1), both Count One and Count Two of the indictment list five prior felony convictions, "each of said offenses being a crime punishable by a term of imprisonment exceeding one year."
The Court appointed Kevin Roberts to serve as Mr. Coon's counsel. (Crim. Doc. Sept. 12, 2007, Minute Entry). Mr. Coon's attorney negotiated a plea agreement with the Government. Mr. Coon signed the agreement on October 8, 2007. (Crim. Doc. 23).
According to the plea agreement, the Government was prepared to prove the following facts concerning Mr. Coon's possession of a pistol and an assault rifle:
(Crim. Doc. 23, pp. 2-5) (emphasis in original). To establish that Mr. Coon was a convicted felon when he was found in possession of the pistol and the assault rifle, the plea agreement states: "[a]t the time of both of these arrests, the defendant had been convicted of at least the following felony: Theft of Property, First Degree, CC-90-264, February 21, 1991, in the Circuit Court of Covington County, Alabama." (Crim. Doc. 23, p. 4). Mr. Coon does not challenge the validity of the underlying theft of property conviction. (Crim. Doc. 38, pp. 3-6).
The "maximum punishment" section of the plea agreement explains that for each count in the indictment, Mr. Coon faced a maximum sentence of not more than ten years in prison; however, "
In his plea agreement, Mr. Coon expressly acknowledged that he read the agreement before he signed it and that he discussed the case with his lawyer. (Crim. Doc. 23, p. 12). He also denied that he was induced by promises or threats to sign the plea agreement. Id.
Mr. Coon signed the plea agreement and initialed each page. (Crim. Doc. 23).
At the hearing concerning his plea agreement, Mr. Coon stated that he was satisfied with the way his lawyer handled his case. (Crim. Doc. 38, pp. 7-9).
In advance of the sentencing hearing, Mr. Coon's attorney filed objections to the presentence report. (Crim. Doc. 24).
(Crim. Doc. 24, pp. 1-2); see also (Crim Doc. 41, p. 4).
At the sentencing hearing, the District Court reviewed Mr. Coon's objections to the sentencing report with his attorney. (Crim. Doc. 41, pp. 4-6). The Court found that Mr. Coon's attorney adequately preserved Mr. Coon's objections even though the attorney did not have access to certain supporting documents that either were lost or unavailable. Id. at p. 10. The Government presented the District Court with case action summaries and conviction reports for four convictions that were offered as a basis for sentence enhancement under 18 U.S.C. § 924(e). Id. at p. 11. The Government also offered documentation regarding a fifth conviction from Escambia County, Florida. Id. at p. 15. That conviction was for a drug offense, the sale of cannabis, to which Coon pled nolo contendere.
Concerned that the drug conviction might not qualify as a prior conviction for purposes of § 924, the District Court recessed the hearing to research the issue. Id. at p. 16. After reconvening the hearing, the District Court stated:
Id. at p. 17. The Court's finding prompted the following exchange:
(Crim. Doc. 41, pp. 18-19). The Court overruled Mr. Coon's objections to the sentencing report. Id. at pp. 11-12, 18-19.
Based on the information contained in the presentence report and on the Court's research, the District Court found that:
(Crim. Doc. 41, pp. 19-20).
The District Court sentenced Mr. Coon on April 7, 2008, to 180 months of imprisonment on both counts of the indictment to be served concurrently. The Court also ordered Mr. Coon to complete 48 months of supervised release. (Crim. Doc. 29).
On April 9, 2008, Coon appealed his conviction to the Eleventh Circuit. (Crim. Doc. 30). In his notice of appeal, he asserted that his sentence exceeded the maximum sentence allowed by law, and he attributed the purported error to ineffective assistance of counsel. Id. at p. 1. In his appellate briefing, Mr. Coon focused his argument on the "magistrate judge's decision to deny without prejudice his motion to withdraw his guilty plea." (Crim. Doc. 50, p. 2). Mr. Coon argued that the decision "denied him the opportunity to exercise his constitutionally guaranteed right to a trial of his case, seriously affecting the fairness and integrity of the judicial proceedings against him." Id. The Eleventh Circuit dismissed his appeal on grounds of waiver because Mr. Coon failed to object to the magistrate judge's decision before the District Court. Id. at pp. 4-5. Mr. Coon did not seek certiorari review in the Supreme Court. (Doc. 1, p. 2).
On April 13, 2010, Coon filed the instant motion to vacate his sentence pursuant to 28 U.S.C. § 2255. (Doc. 1). As grounds for his § 2255 motion, Coon asserts: (1) the District Court lacked jurisdiction because the state court convictions charged in the indictment were invalid; (2) the sentence imposed is in excess of the statutory maximum because the underlying convictions were invalid, and the Court failed to make a factual inquiry to determine whether § 13A-10-33 is a crime of violence; (3) the Court sentenced Mr. Coon on the basis of false information in the presentence report in violation of the Due Process Clauses of the Fifth and Fourteenth Amendments; (4) the U.S. Attorney and Coon's appointed counsel unduly coerced him into pleading guilty in violation of the Due Process Clause of the Fifth Amendment and the Assistance of Counsel Clause of the Sixth Amendment; (5) ineffective assistance of counsel; (6) the Court deprived him of a full and fair sentencing hearing; and (7) ineffective assistance of counsel on direct appeal. (Doc. 1). Since filing his § 2255 motion, Coon filed twenty-one (21) documents titled "Judicial Notice of Adjudicative Facts."
Section 2255 enables a prisoner to challenge his sentence; however there are procedural limitations on a § 2255 motion. Procedural default is one of those limitations. (Doc. 3, 5-7). Generally, if a defendant does not raise an argument regarding his sentence on direct appeal, then he may not seek collateral review of his sentence by way of a § 2555 challenge. See Massaro v. United States, 538 U.S. 500, 504 (2003); Greathouse v. United States, 2007 WL 1577903, *1 (M.D. Ala. May 31, 2007) ("Ordinarily, if an available claim is not advanced on direct appeal, it is deemed procedurally barred in a § 2255 proceeding."). "The procedural-default rule is neither a statutory nor a constitutional requirement, but it is a doctrine adhered to by the courts to conserve judicial resources and to respect the law's important interest in the finality of judgments." Massoro, 538 U.S. at 504.
In his brief to the Eleventh Circuit Court of Appeals, Mr. Coon challenged the magistrate judge's order denying his motion to withdraw his guilty plea. (Crim. Doc. 50, p. 2). He does not present that argument in his § 2255 motion. Instead, he raises five claims regarding the calculation of his sentence and two claims of ineffective assistance of counsel. The ineffective assistance of counsel claims are not subject to the procedural-default rule. Massaro, 538 U.S. at 509 (the "failure to raise an ineffective-assistance-of-counsel claim on direct appeal does not bar the claim from being brought in a later, appropriate proceeding under § 2255."). Mr. Coon's arguments regarding the calculation of his sentence are barred unless he can establish cause and prejudice for not raising them on direct appeal. See United States v. Frady, 456 U.S. 152, 167-68 (1982) (petitioner can avoid the procedural bar by showing both cause for the failure to raise the claim on direct appeal and actual prejudice arising from that failure).
A "prisoner collaterally attacking his conviction can establish cause for a procedural default if he can show that `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)). Mr. Coon attributes his failure to raise various issues on direct appeal to ineffective assistance of counsel. (Doc. 1, pp. 4, 6, 7, 9, 11, 18 n.1, 31, 32-54). "Ineffective assistance of counsel may satisfy the `cause' exception to a procedural bar, but only if the claim of ineffective assistance is meritorious." Williams v. United States, 2010 WL 4941962, *2 n. 3 (M.D. Ala. Nov. 2, 2010) (citing Greene v. United States, 880 F.2d 1299, 1305 (11th Cir. 1989)). Consequently, Mr. Coon's § 2255 motion turns on his ability to establish that his trial and appellate attorneys were ineffective.
To decide whether Coon's ineffective assistance of counsel claims have merit, the Court applies the familiar framework of Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, to prevail on a claim of ineffective assistance of counsel, the movant must establish: (1) deficient performance — that his counsel's representation fell below an objective standard of reasonableness; and (2) prejudice — but for the deficiency in representation, a reasonable probability exists that the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668 (1984); Chandler v. United States, 218 F.3d 1305 (11th Cir. 2000). The burden of proving ineffective assistance rests on the movant. Chandler, 218 F.3d at 1315 n.15. A court may decline to reach the performance prong of the standard if it is convinced that the prejudice prong cannot be satisfied. Strickland, 466 U.S. at 697; Waters v. Thomas, 46 F.3d 1506, 1510 (11th Cir. 1995).
The performance prong of Strickland "requires a petitioner to establish that counsel performed outside the wide range of reasonable professional assistance and made errors so serious that he failed to function as the kind of counsel guaranteed by the Sixth Amendment." Butcher v. United States, 368 F.3d 1290, 1293 (11th Cir. 2004). The proper measure of attorney performance is "reasonableness under prevailing professional norms." Strickland, 466 U.S. at 688. Because a wide range of performance is constitutionally acceptable, "the cases in which habeas petitioners can properly prevail on the ground of ineffective assistance of counsel are few and far between." Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994). To be unreasonable, the performance must be such that "no competent counsel would have taken the action that his counsel did take." Grayson v. Thompson, 257 F.3d 1194, 1216 (11th Cir. 2001).
The prejudice prong of Strickland "requires a petitioner to demonstrate that seriously deficient performance of his attorney prejudiced the defense." Butcher, 368 F.3d at 1293. In the sentencing context, a petitioner must establish a reasonable probability that, but for counsel's deficient performance, the result of the sentencing proceeding would have been different. Glover v. United States, 531 U.S. 198, 203-04 (2001).
Applying these standards, the Court addresses each of Mr. Coon's claims, in turn.
Mr. Coon's ineffective assistance of counsel arguments concerning his trial attorney revolve around a central theme, namely that his attorney failed to persuade the Court that the predicate offense for indictment under 18 U.S.C. § 922(g)(1) and the felony judgments that provide the basis for his sentence enhancement under 18 U.S.C. § 924(e) are flawed, so that the Court improperly considered those prior criminal matters. For the reasons stated below, the Court is unpersuaded that Mr. Coon's trial counsel was ineffective in addressing these issues or that any potential deficiency in trial counsel's performance prejudiced Mr. Coon's sentencing.
Mr. Coon contends that his trial attorney was ineffective because he, "failed to develop record" regarding the predicate offense that provides the basis for his indictment under 18 U.S.C. § 922(g)(1). (Doc. 1, p. 4). Mr. Coon's criticism of the indictment is without merit. Consequently, his attorney did not perform inadequately because he did not challenge the indictment.
Section 922(g)(1) makes it "unlawful for any person-who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year... to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce." 18 U.S.C. § 922(g)(1). An indictment under § 922(g)(1) may rest on only one conviction. In his plea agreement and during sentencing, Mr. Coon did not contest the validity of his Covington County conviction for theft of property, first degree (Circuit Court of Covington County, Alabama, CC-90-264, February 21, 1991), and rightly so. (Crim. Doc. 23, p. 4; Crim. Doc. 38, pp. 3-6). That conviction pertains to a Class B felony under Alabama law. See Ala. Code § 13A-8-3(d). It is punishable by a term of imprisonment of up to twenty years. See Ala. Code § 13A-5-6(a)(2). Thus, Mr. Coon was convicted of a crime punishable by a prison term exceeding one year. United States v. Smith, 2009 WL 857493 * 4 (S.D. Ala. Mar. 27, 2009), aff'd, 398 Fed. Appx. 495 (11th Cir. 2010) ("Federal authorities are legion for the proposition that this § 922(g) criterion hinges only on the maximum sentence to which the defendant was exposed on the underlying offense of conviction, and not on the actual sentence imposed or the felony/misdemeanor designation of same.") (internal citations omitted). Because the one qualifying conviction suffices, Mr. Coon's trial counsel did not err when he failed to challenge the indictment.
Mr. Coon argues that his trial attorney was ineffective because he purportedly did not challenge sufficiently the state court offenses on which Mr. Coon's career offender sentencing enhancement rests. The record does not support Mr. Coon's position.
In addition to the undisputed theft of property conviction, Mr. Coon's indictment identifies four other state court judgments against him: two 1992 Escabmia County judgments for third degree burglary and escape third degree and two 1982 Jefferson County judgments for receipt of stolen property first degree. (Crim. Doc. 1). At sentencing, the Government presented case action summaries and conviction reports for the burglary and escape convictions, as well as the other state court judgments listed in the indictment. (Crim. Doc. 41, p. 11).
Mr. Coon focuses much of his argument on the Escambia County convictions. His trial attorney objected extensively to the Court's use of those convictions as a basis for a sentence enhancement. (Crim. Doc. 24; Crim. Doc. 41, pp. 4-6, 10). The Court considered those objections and overruled them. (Crim. Doc. 41, pp. 12, 17-19).
Moreover, the rationale that Mr. Coon offers for his contention that the Court should not have considered the Escambia County convictions is flawed, so that he suffered no prejudice even if his attorney arguably could have presented his position more forcefully. As he argued throughout his criminal district court proceeding, Mr. Coon contends in his habeas petition that because the state court erroneously inflated his sentences for the Escambia County convictions, the Government should not have included those convictions in his federal indictment. (Doc. 1, p. 19; compare Crim. Doc. 24, p. 1).
Alternatively, Mr. Coon contends that the Court should not have used the state burglary and escape convictions in calculating his criminal history points. The Presentence Investigation Report assigned three criminal history points for the Escambia County burglary conviction and three points for the escape conviction. (Presentence Investigation Report, pp. 14, 17). In total, the Escambia County convictions account for six of Mr. Coon's 15 criminal history points.
The sentencing guidelines instruct that three points should be added for each prior sentence of imprisonment exceeding one year and one month, and two points should be given for each prior sentence of imprisonment of at least sixty days. U.S. Sentencing Guidelines Manual, § 4A1.1 (2008). Burglary in the third degree and escape in third degree are both Class C felonies under Alabama law; they carry a minimum sentence of one year and one day. Ala. Code § 13A-7-7; Ala. Code § 13A-10-33; Ala. Code § 13A-5-6(3). If Mr. Coon had received the minimum sentence for the burglary and escape convictions, and his state convictions had not been enhanced, he still would have received two criminal history points for each conviction under § 4A1.1. That would produce four total criminal history points for the escape and burglary convictions instead of six — a difference of two criminal history points. Adjusting Mr. Coon's total criminal history by two points, from 15 to 13, would not have changed his criminal history category. With 13 points, Mr. Coon still would have a criminal history category of VI. See U.S. Sentencing Guidelines Manual, Ch. 5, Pt. A, Sentencing Table (2008) (providing that 13 or more points is a Category VI criminal history). Again, Mr. Coon cannot demonstrate that he suffered prejudice because of his attorney's purported inadequate representation.
Finally, Mr. Coon submits that his escape conviction does not qualify as a crime of violence for purposes of sentence enhancement under 18 U.S.C. § 924(e)(2)(B)(i). (Doc. 1, pp. 25, 27). In 2001, the Eleventh Circuit held that a "prior escape conviction qualifies as a crime of violence under the career offender guideline." United States v. Gay, 251 F.3d 950, 954 (11th Cir. 2001). Gay involved an escape conviction for walking away from a diversion facility in a non-violent manner. Id. at 952. When the Court sentenced Mr. Coon in 2008, Gay was binding authority, so Mr. Coon's attorney had no legal basis for arguing that the Court should not treat his escape judgment as a crime of violence.
Mr. Coon seeks relief from the judgment against him because he believes that his trial attorney and the assistant United States attorney prosecuting his federal indictment coerced him into entering a guilty plea. (Doc. 1, pp. 32, 36). Mr. Coon's sworn testimony at his plea hearing undermines his argument:
(Crim. Doc. 38, p. 9). In addition, Mr. Coon told the Court that he had reviewed the plea documents with his lawyer, that he had enough time to discuss his constitutional rights with his lawyer, and that he was satisfied with the way his lawyer handled his case. Id. at pp. 7-9. Because "solemn declarations in open court [at the guilty plea hearing] carry a strong presumption of verity," they "constitute a formidable barrier in any subsequent collateral proceedings." Blackledge v. Allison, 431 U.S. 63, 74 (1977); see also United States v. Medlock, 12 F.3d 185, 187 (11th Cir. 1994) ("There is a strong presumption that the statements made during the colloquy are true.").
Mr. Coon has "not overcome that presumption here, inasmuch as he has offered no colorable explanation for why he denied experiencing pressure or coercion at the guilty plea hearing, only to insist now that the converse was true." United States v. Perez-Hernandez, 2012 WL 32657 *3 (S.D. Ala. Jan. 6, 2012) aff'd, 490 Fed. Appx. 275 (11th Cir. 2012); see also Thompson v. Wainwright, 787 F.2d 1447, 1459-61 (11th Cir.1986) (holding that district court was not clearly erroneous in concluding that petitioner failed to meet his burden of presenting convincing evidence that his plea was coerced in the face of his earlier testimony that his plea was voluntary and not the product of coercion).
Finally, Mr. Coon argues that his trial counsel was ineffective because he did not renew Mr. Coon's motion to withdraw his guilty plea. The record demonstrates that a second motion would have been fruitless.
On January 16, 2008, defense counsel filed a motion to withdraw guilty plea on behalf of Mr. Coon. (Crim. Doc. 17). United States Magistrate Judge Michael Putnam heard that motion on January 30, 2008. At the hearing, Mr. Coon spoke extensively about his belief that his prior state felony convictions were invalid. Ultimately, the magistrate judge denied Coon's motion to withdraw his guilty plea without prejudice. (Crim. Doc. February 5, 2008, Margin Order).
"There is no absolute right to withdraw a guilty plea." United States v. Medlock, 12 F.3d 185, 187 (11th Cir. 1994) (citing United States v. Buckles, 843 F.2d 469, 471 (11th Cir. 1988)). In denying Mr. Coon's first motion to withdraw his guilty plea, Judge Putnam commented, "it sounds to me like you don't really have a good basis for withdrawing the guilty plea." (Crim. Doc. 39, p. 23). Because there is nothing in the record to indicate a change in circumstances that would have led the Court to a different conclusion had Mr. Coon renewed his motion, Mr. Coon has not established that his trial attorney's failure to renew the motion to withdraw the guilty plea falls outside the scope of reasonably competent assistance. See United States v. Daniels, 2008 WL 953695 *6 (W.D. La. Apr. 8, 2008) ("Moreover, Daniels provides no evidence of or reasons why the court would greet his renewal of the motion to withdraw his guilty plea with anything other than an affirmation of its previous denial. Thus, any renewed motion by the defendant to withdraw his guilty plea would likely have been fruitless."); United States v. Maisonet, 2003 WL 21638209 *3 (S.D.N.Y. July 10, 2003) ("The circumstances had not changed, however, and still no basis existed to permit Maisonet to withdraw his plea. The Court would have denied any such renewed motion, and counsel's failure to renew the motion did not constitute ineffective assistance.").
Mr. Coon also expresses dissatisfaction with his appellate counsel's work. Mr. Coon criticizes him because the "trial court was infected with errors," and appellate counsel did not address all of those purported errors in Mr. Coon's appellate briefs. Coon argues that his appellate counsel had a duty to raise those "errors" on direct appeal. (Doc. 1, p. 53). Identifying the errors that he believes his appellate counsel should have raised, Mr. Coon references the arguments in his § 2255 motion. As discussed in detail in this opinion, the Court finds those arguments unpersuasive. "Appellate counsel is not ineffective for failing to raise claims `reasonably considered to be without merit.'" United States v. Nyhuis, 211 F.3d 1340, 1344 (11th Cir. 2000) (internal citations omitted). Therefore, appellate counsel was not ineffective for failing to raise the arguments on direct appeal.
Mr. Coon asks the Court for an evidentiary hearing. (Doc. 10). As grounds for the hearing, Mr. Coon says has discovered new evidence. Id. The Court has reviewed this evidence and finds that the majority of the documents that Mr. Coon has collected are already in the record. With respect to the few documents are not in the record, the Court is unconvinced that these documents are material or relevant to Mr. Coon's § 2255 motion. As explained in Holmes v. United States, 876 F.2d 1545, 1552-53 (11th Cir. 1989):
Holmes, 876 F.2d at 1552-53. Accordingly, Mr. Coon's motion for an evidentiary hearing is due to be
Based on the foregoing, this § 2255 motion is due to be
A separate Order will be entered consistent with this Memorandum Opinion.
