JAMES S. MOODY, Jr., District Judge.
THIS CAUSE comes before the Court upon Aaron Brian Sands' Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (Dkt. #1), his Memorandum of Law (Dkt. #2), and the Government's Response (Dkt. #10). The Court having reviewed the pleadings, arguments, and record, concludes that the petition is due to be denied.
Sands pled guilty to one count of receiving child pornography and one count of knowingly possessing child pornography. He was sentenced to 180 months imprisonment on count one and 120 months on count two with the terms running concurrently. Sands appealed his judgment and sentence arguing that the Court erred in grouping his offenses which gave a base offense level of 22 instead of 18. On July 3, 2012, the Eleventh Circuit affirmed. United States v. Sands, 480 Fed. App'x. 966 (11th Cir. 2012).
On October 4, 2013, Sands timely filed the instant petition together with a supporting memorandum, raising three claims of ineffective assistance of counsel:
The law regarding ineffective assistance of counsel claims is well settled. In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court set forth a two-part test for analyzing ineffective assistance of counsel claims:
Strickland, 466 U.S. at 687.
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." Id. at 690.
Petitioner must demonstrate that counsel's 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." Id. at 691-92. To meet this burden, Petitioner 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." Id. at 694.
It is not entirely clear from Sands' argument whether he is asserting an error on the part of the trial court in denying the motion for Mr. Hall to withdraw as counsel or whether he is contending Mr. Hall was ineffective in his representation. For example, Sands argues: "The Sixth Amendment is violated when a court summarily denies a defendant his right to counsel of choice and motion to substitute counsel," citing United States v. Garrett, 179 F.3d 1143 (9th Cir. 1999). If Sands is claiming trial court error, it should have been raised on direct appeal. If not, it is waived. In any event, Garett is of no help to Sands.
In Garrett, the defendant, who had a court appointed attorney, waited until the day before trial to announce that he had retained a private attorney to represent him, but the private attorney would need one month to prepare for trial. The new attorney was not present in court. The court telephoned the new attorney who confirmed that he had been retained but that he could not proceed to trial the next day. The court then denied the defendant's motion for a one month continuance. The defendant then proceeded to trial pro se, with the court appointed attorney as stand-by counsel. He was convicted. The defendant's subsequent appeal on the grounds that he was not given the attorney of his choice was denied. The appellate court stated that, while the Sixth Amendment right to counsel is an important one, it does not override the trial court's discretion in denying a last minute request for a continuance.
Garrett does not help Sands because:
(1) it confirms the broad discretion of the trial court in denying a defendant's request for new counsel,
(2) Garrett was facing trial whereas Sands was facing sentencing (he had already pled guilty), and
(3) Garrett was seeking to hire his own private lawyer, not receive another court appointed lawyer.
A defendant may hire whatever attorney he chooses, but he does not the right to pick and choose among court appointed attorneys. Moore v. U.S., 260 F.Supp. 315 (E.D. Mo. 1966), affirmed 376 F.2d 32 (8th Cir. 1967).
Sands' memorandum also seems to assert ineffective assistance of counsel: "(A)ttorney Hall's conduct and representation of Mr. Sands was woefully deficient." Memorandum (Dkt. #2), p. 17. Sands' counsel, Mr. Hall, filed two separate motions to withdraw, both of which were denied by the Court. While Sands criticizes Hall's motion to withdraw as not containing sufficient supporting facts, Sands filed his own pro se motion for Hall to withdraw setting forth all of Sands' reasons. (Dkt. #30, criminal case 8:09-cr-591-T-30TGW, in the Middle District of Florida.) None of the reasons were sufficient to warrant a new court appointed attorney.
As previously noted, Sands did not seek to have Hall withdraw until after he had already pled guilty. Only sentencing remained. Hall met with Sands twice after Sands' entry of his guilty plea to prepare for sentencing. After Hall met with him on July 1, 2010, Sands wrote Hall about their discussion concerning possible downward variances. Sands seemed satisfied with Hall's representation at that point, and Hall responded by letter, also on July 1, 2010, attaching copies of the Guidelines Sentencing Manual for Sands' review.
In all of his complaints about his lawyer's representation at sentencing and the Court's refusal to appoint another attorney in place of Mr. Hall, Sands never demonstrates how he was prejudiced. He never states what some other lawyer could have done or would not have done that would have changed Sands' sentence.
Since the petition fails to show either deficient performance or prejudice, this ground fails.
In support of ground two, Sands argues:
Memorandum in support (Dkt. #2), p. 19.
Apparently Sands assumes that his counsel failed to attempt to negotiate a plea and, had he done so, the government would have offered to let Sands plead to only one of the two charges. Such failure, by definition, would have occurred before Sands entered his guilty plea. This argument is mere conjecture on Sands' part. First, he does not know if his counsel attempted to negotiate with the government, and second, he does not know if the government would have made an offer, if asked. Speculative claims such as these do not support an ineffective assistance of counsel claim. Tejada v. Dugger, 941 F.2d 1551 (11th Cir. 1991).
Sands is also factually wrong. His counsel did attempt to get the government to allow Sands to plead to only count two, simple possession of child pornography. Hall Affidavit, Exh. 4 to government's response (Dkt. #10), p. 6. Hall explains that the government had a strong case and was not interested in making a plea offer. At the guilty plea hearing, the government stated on the record that it had not made any plea offer:
Guilty plea transcript (Dkt. #51), criminal case #8:09-cr-591-T-30TGW, Middle District of Florida, pp. 2-3, 17-19, and 28-29.
Defense counsel cannot force the government to make a plea offer. Sands has not shown deficient performance on the part of Mr. Hall nor has he shown prejudice, that the government would have been forthcoming with a better plea deal had Mr. Hall done anything more. Therefore, Sands fails both prongs of Strickland and this claim must be denied.
In support of ground three, Sands asserts:
Memorandum in support of petition (Dkt. #2), p. 23.
Sands seems to complain that every trial counsel has a built in conflict of interest in representing the same defendant on appeal. As a general proposition, that is incorrect. Sands must point to a specific conflict. Here, Sands says he wanted Hall to dispute the conditions of supervised release at sentencing, but he does not identify any condition that should have been disputed nor does he demonstrate that the Court would have changed a condition if asked. Sands also claims that his attorney had a conflict of interest in regards to "the two improperly prepared motions" to withdraw. Whether the motions were improperly prepared was not an appropriate issue for direct appeal, so Mr. Hall had no conflict. That issue is appropriate for a petition to vacate, Sands in fact raised the issue, and it failed for lack of merit. Therefore, Sands has shown neither deficient performance nor prejudice.
Lastly, this claim is belied by Sands' own letter to his counsel on July 23, 2011, concerning the progress of the appeal. Nowhere in the letter does Sands express any dissatisfaction with Hall's representation or request any additional issues be raised. Exhibit 4-3, Government's Response (Dkt. #10).
Since each of the claims raised by Sands lacks merit, the petition must be denied.
It is therefore ORDERED AND ADJUDGED that:
1. Petitioner's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. §2255 (Dkt. #1) is DENIED.
2. The Clerk is to enter judgment for Respondent, United States of America, terminate any pending motions, and close this case.
3. The Clerk is directed to terminate from pending status the motion to vacate found at Dkt. #56, in the underlying criminal case, case number 8:09-cr-591-T-30TGW.
IT IS FURTHER ORDERED that Petitioner is not entitled to a certificate of appealability. A prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court's denial of his petition. 28 U.S.C. § 2253(c)(1). Rather, a district court must first issue a certificate of appealability (COA). Id. "A [COA] may issue ... only if the applicant has made a substantial showing of the denial of a constitutional right." Id. at § 2253(c)(2). To make such a showing, Petitioner "must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong," Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that "the issues presented were `adequate to deserve encouragement to proceed further.'" Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4 (1983)). Petitioner has not made the requisite showing in these circumstances.
Finally, because Petitioner is not entitled to a certificate of appealability, he is not entitled to appeal in forma pauperis.
DONE AND ORDERED.
