JAMES D. WHITTEMORE, District Judge.
Before the Court are Petitioner's pro se Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (CV Dkt. 1) and memorandum of law in support of the motion (CV Dkt. 2), the government's response in opposition (CV Dkt. 7), and Petitioner's reply (CV Dkt. 8). Upon consideration, Petitioner's motion is DENIED in part. An evidentiary hearing is necessary with respect to Petitioner's claims of ineffective assistance of counsel raised in Grounds Two and Three of his motion.
Petitioner was charged by Indictment with distribution of a detectable amount of cocaine base (crack cocaine), in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C), and 18 U.S.C. § 2 (CR Dkt. 1). Following a jury trial, Petitioner was found guilty as charged (CR Dkt. 116).
Petitioner Section 2255 motion presents the following claims:
Strickland v. Washington, 466 U.S. 668 (1984), governs Petitioner's ineffective assistance of counsel claims:
Sims v. Singletary, 155 F.3d 1297, 1305 (11th Cir. 1998).
Strickland requires proof of both deficient performance and consequent prejudice. Strickland v. Washington, 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 v. Singletary, 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. Strickland requires that "in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." Id.
Petitioner contends that Chandler was ineffective in failing to: (1) object to an inadmissible telephone conversation between co-defendant Carlos Green and law enforcement; (2) object to the introduction of Green's plea agreement at trial; and (3) challenge and present evidence of Petitioner's involuntary waiver of his Miranda rights.
During trial, Detective Catlin testified, in pertinent part, that on May 8, 2009, he made a telephone call to Green to arrange a drug deal (CR Dkt. 167 at pp. 68-77). Detective Catlin recorded the telephone conversation, which was entered into evidence then published to the jury (Id. at pp. 72-77). Chandler did not object to the testimony or admission of the recording (Id. at p. 72).
Petitioner first contends that Chandler was ineffective in failing to object on the ground that the evidence of the telephone conversation between Green and Detective Catlin was inadmissible under Rule 404(b), Fed.R.Evid., since the government did not provide notice of its intention to use the evidence as required under Rule 404(b).
Petitioner next argues that counsel was ineffective in failing to object to the evidence on the ground that it was inadmissible under 18 U.S.C. § 2515, which provides:
Under 18 U.S.C. § 2518(10)(a), only an "aggrieved person" may move to suppress unlawful interceptions. An "aggrieved person" is defined as "a party to any intercepted wire or oral communication or a person against whom the interception was directed." 18 U.S.C. § 2510(11).
Petitioner was not an aggrieved person because he was not a party to the telephone conversation between Green and Detective Catlin. Petitioner therefore lacked standing to challenge the recording of the conversation. See Alderman v. United States, 394 U.S. 165, 172 (1969); United States v. Juarez, 573 F.2d 267, 276 (5th Cir. 1978) (defendants lacked standing to object to tape recording of conversations because they had "no legitimate expectation of privacy either through participation in the conversation or through a possessory interest in the tapes[.]") (quoting United States v. Ransom, 515 F.2d 885, 889 (5
Finally, Petitioner contends that counsel was ineffective in failing to object to the admission of the recording of the telephone conversation between Green and Detective Catlin on the basis that it violated Petitioner's right to confront the witnesses testifying against him under the Sixth Amendment.
Green's statements to Detective Catlin during the recorded telephone conversation were not "testimonial statements", and therefore not subject to the Confrontation Clause. See United States v. Underwood, 446 F.3d 1340, 1347 (11th Cir. 2006) (holding that where the challenged evidence was a recorded statement between a confidential informant and a co-conspirator regarding the purchase of cocaine, the evidence was not testimonial). Therefore, admission of the recording of the telephone conversation did not violate Petitioner's rights under the Confrontation Clause. Consequently, Petitioner has failed to show that counsel rendered deficient performance in failing to object to admission of the recording of the telephone conversation as a violation of the Confrontation Clause. Moreover, Petitioner has failed to demonstrate prejudice because in light of the strong eyewitness testimony implicating Petitioner in the drug transaction, admission of the telephone conversation was harmless beyond a reasonable doubt. See United States v. Edwards, 211 F.3d 1355, 1359 (11th Cir. 2000) (stating that the harmless error doctrine applies to violations of the Confrontation Clause).
Petitioner contends that counsel was ineffective in failing to object to the government introducing Green's plea agreement at trial and during jury deliberations. Respondent asserts that counsel did not render deficient performance because "
In his memorandum in support of his § 2255 motion, Petitioner contends that law enforcement failed to advise him of his Miranda rights, and Chandler was ineffective in "failing to object and present evidence of the involuntary, unknowing, and unintelligent waiver of Miranda rights." (CV Dkt. 2 at p. 6). In his reply, Petitioner contends that "Chandler was ineffective during [Petitioner's] suppression hearing for failing to present evidence of the involuntary, unknowing and unintelligent waiver of his Miranda rights." (CV Dkt. 8 at p. 6). Specifically, Petitioner appears to contend that Chandler was ineffective in failing to present evidence that Petitioner never was advised of his Miranda rights (Id. at p. 7).
To the extent Petitioner contends that Chandler was ineffective in failing to challenge the statements he made to law enforcement while in custody, the contention is belied by the record. Prior to trial, Chandler filed a Motion to Suppress (CR Dkt. 73) and an Amended Motion to Suppress (CR Dkt. 87) the statements Petitioner made to law enforcement on the ground that the statements were made "prior to law enforcement advising him of his Miranda rights." (CR Dkt. 87 at p. 1-2, ¶ 3). During the hearing on the motion to suppress, Chandler presented evidence in support of the motion (CR Dkt. 173). Therefore, the record establishes that Chandler challenged the statements on the ground that law enforcement violated Petitioner's Miranda rights.
To the extent Petitioner contends that Chandler was ineffective during the suppression hearing in failing to present evidence that Petitioner never was advised of his Miranda rights, the contention is vague, conclusory, and self-serving. Petitioner neither alleges that he informed Chandler that law enforcement never advised him of his Miranda rights, nor identifies the evidence Chandler could have presented to show that he never was advised of his Miranda rights. Moreover, during the suppression hearing, Petitioner admitted that Detective Sanchez advised him of his Miranda rights, albeit 40 minutes to an hour after Petitioner made his statements (CR Dkt. 173 at pp. 83-84). Petitioner's claim will therefore be denied as vague and conclusory and because it is belied by Petitioner's own testimony during the motion to suppress hearing. See Hill v. Lockhart, 474 U.S. 52 (1985) (conclusory allegations of ineffective assistance of counsel are insufficient to raise a constitutional issue); Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991) (vague, conclusory, or unsupported allegations cannot support an ineffective assistance of counsel claim).
Accordingly, Petitioner is not entitled to relief pursuant to Ground One.
Petitioner asserts that the government offered him "a plea-deal in which [the government was] willing to withdraw the § 851 enhancement in exchange for [Petitioner entering a plea] of guilty to count three of [the] [I]ndictment." (CV Dkt. 2-1 — Petitioner's affidavit, p. 1). He contends that he would have accepted the government's plea offer rather than proceeding to trial but for Chandler's misadvice that: 1) he could not be found guilty at trial because Green had already pleaded guilty to the offense, and Petitioner's fingerprints were not on the drug evidence; and 2) "even with the withdrawal of the§ 851 enhancement, he would still be subjected to the same or similar amount of [prison] time because the § 851 did not impose a mandatory minimum sentence on his offense." (CV Dkt. 2 at pp. 7-8).
"Strickland's two-part inquiry applies to ineffective assistance of counsel arising out of the plea process." Osley v. United States, 751 F.3d 1214, 1222 (11th Cir. 2014).
Chandler's affidavit indicates, in pertinent part, that he secured a plea agreement that included a two-level reduction for a minor role in the offense (CV Dkt. 7-4 at p. 2, ¶ 7). Additionally, Chandler avers that the government was willing to consider withdrawing the § 851 enhancement if Petitioner provided a proffer of his willingness to cooperate with the government (Id.). According to Chandler, Petitioner did provide a proffer (Id. at ¶¶ 7, 8). Although Chandler indicates that Petitioner "would not accept a plea unless the AUSA made a firm offer of a set amount of time to be served in the Bureau of Prisons[]" (Id. at ¶ 8), Petitioner indicates that he would have accepted the plea offer had counsel not misadvised him that he could not be found guilty at trial, and the§ 851 enhancement would have no effect on his sentence (CV Dkt. 2-1 at pp. 1-2). Petitioner has therefore alleged facts showing a reasonable probability that the plea offer would have been presented to the Court.
Moreover, the record is not sufficiently developed to make a determination whether the Court would have accepted the terms of the plea offer, and whether Petitioner's sentence would have been less severe than the sentence that was imposed.
Because Petitioner has alleged facts that, if true, would entitle him to relief, he is entitled to an evidentiary hearing on this ineffective assistance of counsel claim. See Aron v. United States, 291 F.3d 708, 714-715 (11th Cir. 2002) ("[I]f the petitioner alleges facts that, if true, would entitle him to relief, then the district court should order an evidentiary hearing and rule on the merits of his claim.") (citations and internal quotation omitted).
Petitioner contends that Chandler was ineffective in failing to investigate defense witnesses. Specifically, Petitioner asserts that counsel failed to interview Green to determine whether he had testimony that would "aid in [Petitioner's] defense," and Shane Anthony, Terrance Taylor, Sammie Wallace, and Jose Mendoza to establish that Petitioner never had prior drug dealings with them. In support of this claim, Petitioner provided an affidavit from Green in which Green attests that Petitioner had nothing to do with the drug transaction, and merely provided Green transportation to they never sold drugs to Petitioner (Id. at Exhibit C — Affidavits of Anthony, Taylor, Wallace).
In response, the government provided Chandler's affidavit which indicates, in pertinent part, that he does not recall Petitioner asking him to interview Anthony, Taylor, Wallace, and Mendoza (CV Dkt. 7-4 at p. 2, ¶ 13).
After examining the affidavits attached to Petitioner's memorandum of law and the trial transcript, this Court cannot conclusively conclude that counsel's failure to pursue the potential witnesses and call them at trial did not prejudice Petitioner's defense.
Petitioner was sentenced as a career offender
Petitioner's arguments are without merit. His 2006 conviction was a second degree felony under Florida law punishable by a maximum sentence of 15 years imprisonment. See Fla. Stat., §§ 893.13(1)(a)1.A, 893.03(2)(a)4, and 775.082(3)(c). Because the 2006 prior conviction was "punishable" by a prison term of up to 15 years, it qualified as a "prior violent felony" under the Sentencing Guidelines, regardless of the actual sentence imposed and served, and whether the sentence was suspended.
His 2001 drug conviction likewise was a qualifying conviction under the Guideline. Petitioner argues that his 2001 conviction does not qualify as a predicate offense because it was obtained under Florida Statute § 893.13, which was declared unconstitutional in Shelton v. Secy, Dept. of Corr., 802 F.Supp.2d 1289 (M.D. Fla. 2011). The district court's opinion in Shelton, however, was reversed by the Eleventh Circuit Court of Appeals. Shelton v. Secy, Dept. of Corr., 691 F.3d 1348, 1355 (11th Cir. 2012).
Because the 2001 and 2006 convictions were qualifying offenses under the career offender Guideline, Petitioner was properly sentenced as a career offender. Petitioner therefore has failed to demonstrate that Hernandez was ineffective in failing to challenge the career offender enhancement at sentencing. Accordingly, Ground Four does not warrant relief.
In his memorandum of law, Petitioner contends that his conviction was obtained by the government's knowing use of perjured testimony at trial (CV Dkt. 2 at pp. 17-18). Specifically, he claims that the government presented testimony indicating that there were audio recordings that involved Petitioner, and that government counsel offered testimony through officers Sanchez and Gergel suggesting that Petitioner was present during those recordings (Id. at p. 18). In his reply, Petitioner appears to change his claim to one that the government committed "misconduct" by introducing inadmissible evidence, namely, the recording of the telephone conversation between Green and Detective Catlin (CV Dkt. 8 at p. 19).
As an initial matter, because this issue was available to Petitioner during direct appeal, but was not raised, it is procedurally defaulted (see CV Dkt. 7-1 — Initial Brief of Appellant Melvin Canady). See Bousley v. United States, 523 U.S. 614, 622-24 (1998) (claims that previously were available and were not raised in a prior proceeding are procedurally defaulted and barred from consideration on collateral review). Petitioner has not alleged, let alone demonstrated, cause for the default, or that he is actually innocent of the crime of conviction. See Bousley, 523 U.S. at 622.
Even if the claim was not procedurally defaulted, it would fail on the merits. "Since its decisions in Napue v. Illinois, 360 U.S. 264 (1959), and Giglio v. United States, 405 U.S. 150 (1972), the Supreme Court has consistently held that a conviction obtained by the knowing use of perjured testimony is fundamentally unfair...." Boyd v. Allen, 592 F.3d 1274, 1307 (11th Cir. 2010) (quoting Ventura v. Att'y Gen., Fla., 419 F.3d 1269, 1278 (11th Cir. 2005)). A Giglio error occurs when "undisclosed evidence demonstrates that the prosecution's case included perjured testimony and that the prosecution knew, or should have known, of the perjury." Ventura, 419 F.3d at 1276 (citing United States v. Agurs, 427 U.S. 97 (1976)). "In order to prevail on a Giglio claim, a petitioner must establish that the prosecutor knowingly used perjured testimony, or failed to correct what he subsequently learned was false testimony, and that the falsehood was material." Tompkins v. Moore, 193 F.3d 1327, 1339 (11th Cir. 1999). A falsehood is deemed "material" if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury. United States v. Alzate, 47 F.3d 1103, 1110 (11th Cir. 1995).
Petitioner asserts that the government "presented testimony and evidence indicating that there was [sic] audio recordings that involved Canaday." (CV Dkt. 2 at p. 18). Petitioner does not, however, identify the "testimony and evidence" which he claims indicated that he was present during a recorded telephone conversation. To the extent he implicitly contends that Detectives Sanchez and Gergel testified that Petitioner was present during a recorded telephone conversation (id.), the contention is belied by the record. The record simply does not reveal any evidence or testimony indicating or implying that Petitioner was present during the recorded telephone conversation between Green and Detective Catlin (see CR Dkt. 167). Petitioner therefore has failed to show that the government presented false or misleading testimony.
Finally, to the extent Petitioner contends that the government committed misconduct because it presented inadmissible evidence, namely, the recording of the telephone conversation between Green and Detective Catlin, the contention is without merit. As discussed in Ground One above, the recording was admissible evidence.
Ground Five therefore does not warrant relief.
Accordingly, it is
Fed Rules Evid R 404.
U.S.S.G. §4B 1.1(a).
