JAMES D. WHITTEMORE, District Judge.
On August 24, 2010, Petitioner pleaded guilty, pursuant to a written plea agreement, to Count One of the Indictment which charged Petitioner with conspiracy to distribute and possess with the intent to distribute five kilograms or more of cocaine in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A) (cr Dkts. 64, 77, 87). On December 6, 2010, Petitioner was sentenced to two hundred sixty-two (262) months imprisonment to be followed by 60 months supervised release (cr Dkt. 112). Judgment was entered on December 7, 2010 (cr Dkt. 115).
Petitioner did not file a timely notice of appeal. He did, however, file a Motion Requesting Permission to File a Direct Appeal After Deadline (cr Dkt. 152) on April 17, 2011. This Court denied the motion (cr Dkt. 154). On May 3, 2011, Petitioner filed a notice of appeal of his judgment of conviction (cr Dkt. 156). On February 15, 2012, the United States Court of Appeals for the Eleventh Circuit dismissed the appeal pursuant to the appeal waiver in Appellant's plea agreement (cr Dkt. 175).
On October 9, 2012, Petitioner filed his initial Section 2255 motion (cv Dkt. 1). He filed an Amended Section 2255 motion on December 13, 2012 (cv Dkt. 8), and a Second Amended Section 2255 motion on October 22, 2014 (cv Dkt. 20). The Government filed its Motion to Dismiss, contending that Petitioner's Section 2255 motion is 1) time-barred, 2) barred by the collateral attack waiver in his plea agreement, and 3) without merit.
The Government argues that Petitioner's Section 2255 motion is time-barred. Although the Court disagrees that the entire Second Amended Section 2255 motion is time-barred, several of the claims alleged therein are time-barred.
The Antiterrorism and Effective Death Penalty Act ("AEDPA"), effective April 24, 1996, establishes a one-year limitation period for Section 2255 motions. See Goodman v. United States, 151 F.3d 1335, 1336 (11th Cir. 1998). Specifically, Section 2255 provides that the one-year limitation shall run from the latest of:
28 U.S.C. § 2255(f). See also Pruitt v. United States, 274 F.3d 1315, 1317 (11th Cir. 2001).
The Judgment in Petitioner's criminal case was entered on December 7, 2010 (cr Dkt. 115). Petitioner did not file a timely notice of appeal. Nevertheless, he filed a notice of appeal of his judgment of conviction on May 3, 2011 (cr Dkt. 156). In its Motion to Dismiss Appeal, the Government moved to dismiss the appeal based on the appeal waiver in Petitioner's plea agreement.
The deadline in Rule 4(b), Fed.R.App.P., for filing a notice of appeal in a criminal case is not jurisdictional. United States v. Lopez, 562 F.3d 1309, 1313 (11th Cir. 2009). However, if the Government objects to an untimely notice of appeal, the appellate court must apply the time limits of Rule 4(b) and dismiss the appeal. Id. at 1314. In Petitioner's case, the Government did not move to dismiss the appeal as untimely. Therefore, the Government forfeited its objection to the untimely notice of appeal. See id. Accordingly, the Eleventh Circuit had jurisdiction over Petitioner's appeal.
Because the Eleventh Circuit had jurisdiction over the appeal, Petitioner's judgment of conviction became "final" under Section 2255(f)(1) on May 15, 2012, when the ninety-day period for seeking certiorari review (of the February 15, 2012 dismissal of the appeal) by the Supreme Court expired. Clay v. United States, 537 U.S. 522, 532 (2003). See also Kaufmann v. United States, 282 F.3d 1336, 1339 (11th Cir. 2002) (holding that a judgment becomes "final" when the time for filing a petition for writ of certiorari expires). Petitioner therefore had one year from that date, until May 15, 2013, to timely file a Section 2255 motion. He filed his initial Section 2255 motion on October 9, 2012 (cv Dkt.1). Therefore, Petitioner's initial Section 2255 motion was timely filed.
Nevertheless, even though the initial Section 2255 motion was timely, the Second Amended Section 2255 motion, signed on October 14, 2014 (see cv Dkt. 20, p. 14), clearly falls outside the limitation period (which expired May 15, 2013). And, the Second Amended Section 2255 motion does not merely assert the same claims raised in the initial Section 2255 motion. Rather, the Second Amended Section 2255 motion raises several new claims. The new claims are therefore untimely and barred from federal review unless they relate back to a timely-filed claim in the original Section 2255 motion. See Davenport v. United States, 217 F.3d 1341, 1344 (11th Cir. 2000) ("`Relation back' causes an otherwise untimely claim to be considered by treating it as if it had been filed when the timely claims were filed.").
To relate back to a timely Section 2255 motion, a subsequently presented claim must arise from the same conduct and occurrences that formed the basis of the timely asserted claims. See Fed. R. Civ. Proc. 15(c)(1)(B). "[T]he untimely claim must have more in common with the timely filed claim than the mere fact that they arose out of the same trial and sentencing proceedings." Davenport, 217 F.3d at 1344 (citations omitted). To relate back, "the untimely claim must have arisen from the `same set of facts' as the timely filed claim, not from separate conduct or a separate occurrence in both time and type." Id. (citations and internal quotation marks omitted).
Petitioner's original Section 2255 motion raised the following four claims:
1) counsel was ineffective in allowing Petitioner to enter into a plea agreement before informing Petitioner a) what level of assistance the Government considers "substantial" when deciding whether to file a substantial assistance motion pursuant to Rule 35(b), Fed.R.Crim.P., or motion for a downward departure from the sentencing guideline range, b) at what amount a fine is considered excessive, c) that he was "responsible for" any diminished value of forfeited property, d) that the Government intended to forfeit Petitioner's assets, and e) of the maximum sentence and potential sentences, forfeitures, and fines he was facing;
2) counsel was ineffective in failing to notify the court that Petitioner did not read, write, and comprehend any language, including Spanish;
3) Petitioner's rights under Rule 11, Fed.R.Crim.P., were violated during the change of plea hearing because the court a) directed him to "waive his hand" if he did not understand a question from the court, rather than have Petitioner verbally answer the question, b) failed to inform him that he could confront adverse witnesses and present witnesses, c) failed to inform him of the maximum or minimum fine he faced, and d) failed to inform him of the maximum sentence he faced; and
4) counsel was ineffective during direct appeal because counsel a) lacked the ability to adequately represent Petitioner on appeal, b) filed a brief that was merely a duplicate of Petitioner's sentencing memorandum, and c) failed to adequately communicate with Petitioner regarding the appeal.
(cv Dkt. 1).
Petitioner's Second Amended Section 2255 motion raised the following ten claims:
1-10. counsel was ineffective
1) in failing to review the Presentence Investigation Report (PSR) with Petitioner prior to sentencing;
2) in failing to argue that Petitioner was eligible for the "fast track" program;
3) in failing to advise Petitioner that he would be deported if he pleaded guilty;
4) in failing to spend adequate time with Petitioner prior to Petitioner entering into the plea agreement;
5) in failing to argue sentencing disparity between Petitioner and other defendants convicted of similar offenses;
6) in allowing Petitioner to enter into the plea agreement before reviewing discovery, the sentencing guidelines, and Petitioner's criminal history with Petitioner;
7) in failing to advise Petitioner regarding "what qualifies as `Substantial Assistance;'"
8) in allowing Petitioner to enter into a plea agreement before reviewing the PSR with Petitioner, and before Petitioner saw how "counsel would perform for him at sentencing;"
9) in failing to call a witness (defense counsel's investigator) to testify during the sentencing hearing; and
10) in failing to adequately represent Petitioner on direct appeal.
(cv Dkt. 20).
Grounds 1, 2, 3, 4, 5, 6, 8, and 9 of Petitioner Second Amended Section 2255 motion do not arise out of the same set of facts as the original claims. Consequently, these claims do not relate back to his timely filed initial Section 2255 motion.
Grounds Seven and Ten of the Second Amended Section 2255 motion, however, are not time-barred because they relate back to the initial Section 2255 motion. Specifically, Ground Seven relates back to Petitioner's claim in Ground One of the initial Section 2255 motion that counsel was ineffective in failing to advise Petitioner regarding what level of assistance the Government considers "substantial" when deciding whether to file a Rule 35(b) motion, or motion for a downward departure. And Ground Ten relates back to Ground Three of the initial motion, in which Petitioner alleged that counsel rendered ineffective assistance during his direct appeal proceedings. Accordingly, Grounds Seven and Ten will be reviewed on the merits.
Petitioner's written plea agreement includes an express waiver of his right to appeal or collaterally attack his sentence.
During the plea colloquy, Petitioner indicated that he understood the consequences of the appeal waiver, including the provision barring a collateral attack:
(cr Dkt. 133, pp. 20-34). The record supports the finding that Petitioner entered a knowing and voluntary guilty plea.
Petitioner contends that he "entered into a [sic] agreement to provide assistance to the Government under the pretense that such assistance would cause the Government to ask the court to reduce the defendant's sentence." (cv Dkt. 20, docket p. 18). He argues that counsel was ineffective in failing to inform him what level of cooperation qualifies as "substantial assistance." He contends that had counsel explained what the Government considered "substantial assistance," he would not have pleaded guilty.
A voluntary and intelligent guilty plea forecloses federal collateral review of alleged constitutional errors preceding the entry of the plea. Tollett v. Henderson, 411 U.S. 258, 266-67 (1973); Wilson v. United States, 962 F.2d 996 (11th Cir. 1992). Petitioner's ground alleges ineffective assistance rendered before entry of his guilty plea. Petitioner's knowing and voluntary plea waived this antecedent non-jurisdictional ground because the ground does not implicate the validity of the plea. United States v. Glinsey, 209 F.3d 386, 392 (5th Cir. 2000), cert. denied, 531 U.S. 919 (2000).
Finally, even if review of Ground Seven was not barred by the guilty plea or collateral attack waiver, Petitioner cannot obtain relief on the merits. Claims of ineffective assistance of counsel are analyzed under the test set forth in Strickland v. Washington, 466 U.S. 668 (1984), which requires a petitioner to demonstrate both deficient performance by counsel and resulting prejudice. Demonstrating deficient performance "requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687. Deficient performance is established if, "in light of all the circumstances, the identified acts or omissions [of counsel] were outside the wide range of professionally competent assistance." Id. at 690. However, "counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id.
A petitioner must demonstrate that counsel's alleged errors 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 show prejudice, a 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.
Here, Petitioner's plea agreement contained a cooperation provision to be applied under U.S.S.G. § 5K1.1, 18 U.S.C. § 3553(e), or Federal Rule of Criminal Procedure 35(b) (cr Dkt. 64, p. 4-5, ¶ 8). The provision stated, in pertinent part, that "the defendant understands that the determination as to whether `substantial assistance' has been provided . . . rests solely with the United States Attorney for the Middle District of Florida, and the defendant agrees that defendant cannot, and will not, challenge that determination, whether by appeal, collateral attack, or otherwise." (Id.) (emphasis added). Because it was clearly set forth in the plea agreement that it was in the Government's sole discretion to determine whether Petitioner provided assistance that warranted a sentence reduction,
Petitioner contends that counsel rendered ineffective assistance on appeal. Specifically, Petitioner asserts counsel was ineffective 1) in arguing on appeal that Petitioner's 262-month sentence was excessive, after counsel had argued in his sentencing memorandum in this court that a 262-month sentence was fair, and 2) for merely "reformatting" his sentencing memorandum into an appellate brief.
Claims that appellate counsel provided ineffective assistance are analyzed under the two-part test set forth in Strickland. Smith v. Robbins, 528 U.S. 259, 285 (2000); Heath v. Jones, 941 F.2d 1126, 1130 (11th Cir. 1991). To establish a claim, Petitioner must show that appellate counsel's performance was objectively unreasonable, and that there is a reasonable probability that, but for this performance, Petitioner would have prevailed on his appeal. Robbins, 528 U.S. at 285-86.
The Eleventh Circuit dismissed Petitioner's appeal based on his validly entered appeal waiver. Additionally, Petitioner has failed to identify any meritorious claim that could have been raised on appeal. See United States v. Nyhuis, 211 F.3d 1340, 1344 (11th Cir. 2000) ("To determine whether [an ineffective assistance of appellate counsel claim has merit], we must decide whether the arguments the defendant alleges his counsel failed to raise were significant enough to have affected the outcome of his appeal.") (citing Miller v. Dugger, 858 F.2d 1536, 1538 (11th Cir. 1988)); Diaz v. Sec., Dep't of Corr., 402 F.3d 1136, 1144-45 (11th Cir. 2005) (appellate counsel is not ineffective for failing to raise a non-meritorious claim on direct appeal). Therefore, Petitioner cannot show that but for appellate counsel's actions he would have prevailed on appeal. Accordingly, Ground Ten does not warrant relief.
Accordingly, it is
IT IS FURTHER ORDERED that Petitioner is not entitled to a certificate of appealability. A prisoner seeking a motion to vacate has no absolute entitlement to appeal a district court's denial of his motion. 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 merit a COA, Petitioner must show that reasonable jurists would find debatable both (1) the merits of the underlying claims and (2) the procedural issues he seeks to raise. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 478 (2000); Eagle v. Linahan, 279 F.3d 926, 935 (11th Cir 2001). Petitioner cannot make the requisite showing because he cannot demonstrate that reasonable jurists would debate whether the Court's procedural rulings were correct, or whether the Section 2255 motion stated a substantial denial of a constitutional right. And because Petitioner is not entitled to a COA, he is not entitled to appeal in forma pauperis.
(Cr Dkt. 64, pp. 9-10, ¶ 5) (emphasis in original).
