GREGORY A. PRESNELL, District Judge.
THIS CAUSE is before the Court on James Carl Doron Williams' Motion to Vacate, Set Aside, or Correct Sentence (Doc. 1), filed pursuant to 28 U.S.C. § 2255, and Memorandum thereto. (Doc. 2.) Respondent filed a Response to the Motion to Vacate (Doc. 5) in compliance with this Court's instruction. Petitioner filed a Reply to the Response. (Doc. 7.) Pursuant to an Order by the Court, Respondent filed a Supplemental Response (Doc. 17) and Petitioner filed a Supplemental Reply (Doc. 19).
Petitioner asserts five grounds for relief. For the following reasons, the Motion to Vacate will be denied.
Petitioner was indicted for conspiracy to possess with intent to distribute one kilogram or more of heroin and five kilograms or more of cocaine, in violation of 21 U.S.C. § 846 (Count One), and attempted possession with intent to distribute of one kilogram or more of heroin, in violation of 21 U.S.C. §§ 841(a)(1) and 846 (Count Two). (Criminal Case 6:15-cr-227-Orl-31GJK, Doc. 8.)
Petitioner filed a notice of appeal, and his counsel filed an Anders
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court of the United States established a two-part test for determining whether a convicted person is entitled to relief on the ground that his counsel rendered ineffective assistance: (1) whether counsel's performance was deficient and "fell below an objective standard of reasonableness"; and (2) whether the deficient performance prejudiced the defense. Id. at 687-88. A court must adhere to a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689-90. "Thus, 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; Gates v. Zant, 863 F.2d 1492, 1497 (11th Cir. 1989).
As observed by the Eleventh Circuit Court of Appeals, the test for ineffective assistance of counsel:
White v. Singletary, 972 F.2d 1218, 1220-21 (11th Cir. 1992) (citation omitted). Under those rules and presumptions, "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).
In Claim One, Petitioner alleges that, during the sentencing phase, trial counsel did not "subject the prosecutor's case . . . [to] meaningful adversarial testing," because he failed to impeach DEA Agent Tyler Keen with the contents of his Report of Investigation, DEA Form-6. (Doc. 1 at 4, Doc. 2 at 14-15.) Petitioner also claims counsel should have objected to the prosecution's knowing introduction of false and material testimony. (Doc. 1 at 4, Doc. 2 at 15.)
Specifically, Petitioner challenges Keen's sentencing hearing testimony that, during a meeting between coconspirators in Chicago, the confidential informant ("CI") saw "one of the coconspirators . . . with approximately over 100 grand on him, and that this person wanted multiple kilos with that money."
Petitioner's second claim also stems from the first. In Claim Two, Petitioner contends that, as a result of the alleged prosecutorial misconduct — the introduction of false testimony in violation of Giglio v. United States, 405 U.S. 150, 153 (1972)
"`In order to prevail on a Giglio claim, a petitioner must establish [(1)] that the prosecutor knowingly used perjured testimony[] or failed to correct what he subsequently learned was false testimony, and [(2)] that the falsehood was material.'" Raleigh v. Sec'y, Fla. Dep't of Corr., 827 F.3d 938, 949 (11th Cir. 2016) (emphasis added) (quoting Ventura v. Att'y Gen., Fla., 419 F.3d 1269, 1277 (11th Cir. 2005)). However, as Respondent argues, Keen's Report and his testimony were not necessarily contradictory. The fact that the Report did not contain the CI's observation about one of the coconspirators having $100,000 does not prove Keen's testimony — that the CI made such an observation — was false. Therefore, Petitioner has not established a Giglio violation, and counsel did not err by choosing not to impeach Keen with his Report or by failing to object to Keen's testimony on grounds of prosecutorial misconduct.
Moreover, even if the statement was hearsay, which the Court does not decide,
Although trial counsel argued that Petitioner arrived for the sale with only $17,000 of the required purchase price, the prosecution argued that it is a common practice for an individual to give a down payment and finish paying the full purchase price once the drugs have been sold. The prosecution also noted Petitioner had previously been convicted of the sale of a kilogram or more of heroin. (Criminal Case, Doc. 72 at 3-11.) Indeed, the Court did not mention the alleged $100,000 in explaining its decision:
(Criminal Case, Doc. 72 at 11-12.)
Accordingly, because he has not demonstrated he was prejudiced by Keen's testimony, Petitioner has not demonstrated counsel was ineffective as alleged in Claims One and Three. Nor has Petitioner demonstrated that his sentence, as based on the Court's determination that he was reasonably capable of raising money to purchase the full kilo, was unfair or violated his constitutional rights as alleged in Claim Two. Claims One, Two, and the relevant portion of Three are denied.
In the remainder of Claim Three, Petitioner contends that his trial counsel erred by failing to move for downward departure under United States Sentencing Guidelines § 2D1.1, Application Notes 5 and 27(A). (Doc. 1 at 6; Doc. 2 at 20.) He claims the evidence indicated that DEA agents actively pursued him as a suspect and attempted to induce him to purchase more heroin than he was reasonably capable of purchasing. (Doc. 2 at 20-21.) Petitioner alleges that counsel discussed with him the application of Notes 5 and 27(A) to Section 2D1.1 and agreed to move for downward departure based on those notes, yet failed to do so. (Doc. 2 at 21.) Ultimately, Petitioner claims that, had counsel moved for downward departure on the bases alleged, he would have received a four-level downward departure, resulting in a Guidelines range of fifty-one (51) to sixty-three (63) months.
However, Petitioner's argument does not entitle him to relief. Application Note 5 to Section 2D1.1 provides, in pertinent part:
U.S.S.G. § 2D1.1, app. n.5 (emphasis added).
Although not styled as a motion for downward departure, counsel included argument based on Application Note 5 in the Sentencing Memorandum filed with the Court. (Criminal Case, Doc. 48 at 1-5.) Counsel also argued at the sentencing hearing that Petitioner was not reasonably capable of purchasing the agreed upon quantity of heroin. (Criminal Case, Doc. 72 at 3-6.) Accordingly, Plaintiff has not demonstrated that counsel erred as to Application Note 5, and therefore, has not demonstrated ineffective assistance of counsel in that regard.
Application note 27(A), which pertains to a possible entrapment or sentencing manipulation defense, provides:
As with Application Note 5, counsel included argument based on Application Note 27(A) in the Sentencing Memorandum. (Criminal Case, Doc. 48 at 1-5.) Nevertheless, counsel did not present argument related to Note 27(A) at the sentencing hearing, and counsel stated as to any possible entrapment defense that, "Judge, the facts are as the testimony indicated. I have not made any further argument on that point." (Criminal Case, Doc. 72 at 7.) Even so, Petitioner cannot demonstrate prejudice from any alleged error in that regard, as he has not shown a reasonable probability that the result of the sentencing proceedings would have been different. See Strickland, 466 U.S. at 694.
Application Note 27(A) requires the Court find: (1) "the government agent set a price for the controlled substance that was substantially below the market value of the controlled substance," and (2) Petitioner did not have the ability to make the purchase. See U.S.S.G. § 2D1.1, app. n.27(A). Petitioner does not argue in the present Motion that the agreed-upon price was set artificially low. Instead, he argues in his Reply that the undercover agent "[]agreed[] to an overly generous extension of credit (nearly 70%) to induce [Petitioner] to buy the drugs in question." (Doc. 19 at 8.) However, Petitioner is not permitted to raise new arguments in the Reply. See United States v. Krasnow, 484 F. App'x 427, 429 (11th Cir. 2012) (per curiam) (citing Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008); United States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003)) ("A party abandons all issues on appeal that he or she does not "plainly and prominently" raise in his or her initial brief.. . . Parties cannot raise new issues in reply briefs.").
Even had Petitioner properly raised the argument in the Motion, it would not entitle him to relief. Counsel argued in the Sentencing Memorandum, in conjunction with discussion of Application Note 27(A), that the government agent reduced the price of the heroin by forty percent. (Criminal Case, Doc. 48 at 4.) Testimony was then presented at the sentencing hearing that consignment drug deals happened often in large-scale drug transactions. (Criminal Case, Doc. 53 at 30.) Notwithstanding counsel's argument in the Sentencing Memorandum, the Court ultimately ruled that no sentencing manipulation occurred. (Criminal Case, Doc. 72 at 7-8.) Thus, as to the first element, the Court considered and specifically rejected it.
Petitioner has, additionally, failed to satisfy the second element required for application of Note 27(A) — that he did not have the financial resources available to make the purchase. The Court explicitly found to the contrary at the sentencing hearing, relying on the testimony regarding consignment for drug purchases, the Court's experience in similar cases, Petitioner's history of being able to afford such purchases, and Petitioner's own affirmations to the government agent (to which he admits) that he could, indeed, broker the deal. (Criminal Case, Doc. 53 at 10-12, 42-44; Doc. 72 at 11-12.)
As Petitioner has not demonstrated that he would have satisfied the requirements of Application Note 27(A), he has not demonstrated prejudice required by Strickland, and, therefore, has not demonstrated ineffective assistance of counsel. Claim Three is denied.
In Claim Four, Petitioner faults counsel for filing an Anders brief that presumed the appeal waiver contained in Petitioner's plea agreement was enforceable. (Doc. 1 at 8; Doc. 2 at 22-25.) Specifically, Petitioner challenges the way counsel handled the first issue raised in Petitioner's appellate brief — whether Petitioner knowingly and voluntarily gave up his right to appeal. (Doc. 2 at 23; Doc. 5-4 at 6, 9, 10-11.) He claims that counsel should not have stated that Petitioner's waiver was knowing and voluntary without first ascertaining whether the Government would enforce the waiver. (Doc. 2 at 22-25.) Petitioner asserts that, had counsel done so, and had counsel not asserted the Government's position to Petitioner's detriment, counsel "would have concluded that there were `non[-]frivolous' issues to be raised on appeal. By raising `non[-]frivolous' issues, there is a reasonable probability the appellate court would have considered Petitioner's [direct] appeal." (Doc. 2 at 25.)
In support of his position, Petitioner relies on United States v. Davis, 530 F.3d 318, 321 (5th Cir. 2008). In that case, the Fifth Circuit declined to permit appellate counsel to withdraw upon the filing of an Anders brief until counsel certified the Government's position regarding enforcement of the defendant's appeal waiver in the plea agreement. See id. (quoting United States v. Acquaye, 452 F.3d 380, 382 (5th Cir. 2006)).
However, decisions of the Fifth Circuit Court of Appeals are not binding on this Court, and the Court finds no similar requirement in this circuit. In Anders v. California, 386 U.S. 738, 744 (1967), the Supreme Court set forth the following procedure for court-appointed counsel to pursue an appeal requested by his client when counsel has determined there is no merit to the appeal:
Here, counsel satisfied the procedure set forth by the Supreme Court in Anders, and, accordingly, the Court finds his performance in that regard was not deficient.
Further, even if counsel erred, Petitioner cannot demonstrate prejudice. The Eleventh Circuit determined that "independent review of the entire record reveals that counsel's assessment of the relative merit of the appeal is correct. Because independent examination of the entire record reveals no arguable issues of merit, counsel's motion to withdraw is
Although Petitioner claims counsel would have found non-frivolous issues to raise on appeal, given that the Eleventh Circuit affirmed Petitioner's conviction on appeal following a de novo review of the record from which it identified no meritorious issues for appeal, this Court finds that defense counsel's alleged error did not cause Plaintiff prejudice. This claim is, therefore, denied.
In Claim Five, Petitioner alleges that trial counsel erred by failing to file a notice of appeal as requested by Petitioner. (Doc. 1 at 10; Doc. 2 at 25.) Petitioner claims counsel's failure to do so constitutes ineffective assistance of counsel per se. (Doc. 2 at 25.)
In support, Petitioner cites Roe v. Flores-Ortega, 528 U.S. 470 (2000). However, that case does not support his argument. In Flores-Ortega, the Supreme Court held that Strickland's two-part test "applies to claims . . . that counsel was constitutionally ineffective for failing to file a notice of appeal." Flores-Ortega, 528 U.S. at 477. The Supreme Court explained that, "[i]f counsel has consulted with the defendant, the question of deficient performance is easily answered: Counsel performs in a professionally unreasonable manner only by failing to follow the defendant's express instructions with respect to an appeal." Id. at 478. However, even if counsel's performance was deficient, Petitioner must still demonstrate that he was prejudiced by counsel's error. Strickland, 466 U.S. at 687-88; Flores-Ortega, 528 U.S. at 484. The Supreme Court explained that the "serious denial of the entire judicial proceeding itself [(i.e., the appeal)], which a defendant wanted at the time and to which he had a right, . . . demands a presumption of prejudice." Flores-Ortega, 528 U.S. at 483. However, the Supreme Court specifically rejected a rule requiring courts to find prejudice per se, because a "per se prejudice rule ignores the critical requirement that counsel's deficient performance must actually cause the forfeiture of the defendant's appeal." Id. at 484 (emphasis added).
In the instant case, Petitioner concedes that he personally filed a notice of appeal, following which counsel filed a notice of appeal and Anders brief. (Doc. 2 at 26.) Even if counsel erred, which the Court does not decide, see Strickland, 466 U.S. 697, Petitioner cannot demonstrate prejudice because his appeal was not forfeited; instead, the appeal ultimately proceeded, resulting in the Eleventh Circuit's affirmance of his conviction and sentence. Accordingly, this claim is denied.
To the extent Claim Five may also be read to allege a claim of erroneous legal advice, such a claim does not entitle Petitioner to relief. Petitioner alleges that he "made it clear to [counsel] that he . . . would accept the plea [agreement] so long as all of his appellate rights were retained. [Counsel] assured [Petitioner] that those rights were preserved in the plea agreement. They were not." (Doc. 2 at 26.)
However, at the change of plea hearing, the Court reviewed the plea agreement with Petitioner:
(Criminal Case, Doc. 71 at 7-9, 16-17.)
"Solemn declarations in open court carry a strong presumption of verity." Blackledge v. Allison, 431 U.S. 63, 73-74 (1977). Such representations are presumptively trustworthy and considered conclusive absent compelling evidence to the contrary. See United States v. Rogers, 848 F.2d 166, 168 (11th Cir. 1988) ("[W]hen a defendant makes statements under oath at a plea colloquy, he bears a heavy burden to show his statements were false."). The Court's colloquy put Petitioner on notice, even if counsel did not, that, by entering into the plea agreement, Petitioner was giving up his right to appeal in all but the identified four circumstances. Petitioner affirmed, under oath, that he understood. He has not presented compelling evidence that his representation in that regard was false. Therefore, this claim is denied.
As neither issue presented in Claim Five is meritorious, Claim Five is denied.
Therefore, it is
