STEPHEN HYLES, Magistrate Judge.
Petitioner Marshall's Motion to Vacate, Set Aside, or Correct his sentence pursuant to 28 U.S.C. § 2255 is before this court for preliminary consideration under Rule 4 of the Rules Governing Section 2255 Proceedings for the United States District Courts.
Petitioner was indicted in this Court on June 1, 2006, for kidnapping in violation of 18 U.S.C. § 1201 and 18 U.S.C. § 2. (Indictment 1, ECF No. 1). On August 22, 2007, a superseding indictment was filed which corrected the date of the offense which had been listed on the original indictment from May 19, 2006, to May 19, 2005. (ECF No. 89.) On September 4, 2007, Petitioner's trial began. Then, on September 7, 2007, Petitioner was found guilty of the offense of kidnapping. (ECF No. 104.) Subsequent to the preparation of a Pre-Sentence Report (PSR), the Court sentenced Petitioner on February 28, 2008, to a term of imprisonment of 360 months. (ECF No. 112). Petitioner appealed his conviction and sentence to the United States Court of Appeals for the Eleventh Circuit which affirmed the Judgment of the District Court on February 4, 2010. (ECF No. 160.) The United States Supreme Court denied certiorari in Petitioner's case on May 7, 2010 (Doc. 161), and, on April 4, 2011, Petitioner timely filed a Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255. (ECF No. 162).
In his § 2255 pleadings, Petitioner cites eight grounds for relief. Grounds 1 through 7 allege ineffective assistance of trial counsel. Ground 8 alleges ineffective assistance of appellate counsel.
To prevail on a claim of ineffective assistance of counsel, a movant bears the burden of establishing by a preponderance of the evidence that his attorney's performance was deficient and that he was prejudiced by the inadequate performance. Strickland v. Washington, 466 U.S. 668 (1984); Chandler v. United States, 218 F.3d 1305 (11th Cir. 2000). However, "[a] court considering a claim of ineffective assistance must apply a `strong presumption' that counsel's representation was within the `wide range' of reasonable professional assistance." Harrington v. Richter, ___ U.S. ___, 131 S.Ct. 770, 787 (2011) (quoting Strickland, 466 U.S. at 688 (1984)).
To establish deficient performance, a defendant must prove that his counsel's performance was unreasonable under prevailing professional norms and that the challenged action was not sound strategy. There is a strong presumption that the challenged action constituted sound trial strategy. Chatelain v. Singletary, 89 F.3d 749 (11th Cir. 1996). In order to show that counsel's performance was unreasonable, a petitioner must show that no competent counsel would have taken the action in question. Van Poyck v. Florida Department of Corrections, 290 F.3d 1318 (11th Cir. 2002). To satisfy the prejudice prong, a petitioner must show that there is a reasonable probability that, but for counsel's inadequate representation, the proceedings would have been different. Mills v. Singletary, 63 F.3d 999 (11th Cir. 1995); and Meeks v. Moore, 216 F.3d 951 (11th Cir. 2000). If a defendant fails to establish that he suffered prejudice as a consequence of the alleged ineffective assistance, a court need not address the performance prong of the Strickland test. Holiday v. Haley, 209 F.3d 1243 (11th Cir. 2000).
In his first Ground, Petitioner argues that his trial counsel was ineffective for failing to object to for file a motion to suppress the in-court identification of Petitioner by Daphne Wilson. (Pet'r's Pet. 5.) He contends that Wilson, an eyewitness, did not recognize him at Recorder's Court two days after the kidnapping even though he was sitting only a few feet from her in court and that her initial statement to police was that "subject #3 was 5'9" to 5'11", 160-170 pds. [Petitioner] stand 6'4." (Id.) Petitioner argues that his trial counsel should have objected to her testimony as unreliable and prejudicial and because he did not, his legal assistance was ineffective. (Id.)
A "motion to suppress" is defined in Black's Law Dictionary as "[a] request that the court prohibit the introduction of illegally obtained evidence at a criminal trial." Black's Law Dictionary (9th ed. 2009). In this case, Wilson's testimony at the preliminary hearing regarding the identification and description of one of the alleged perpetrators is not "illegally obtained evidence." Petitioner's attorney would have been unable to keep Wilson's eye-witness testimony out of the trial, and his only avenue of attacking her reliability would have been through cross-examination. Therefore, trial counsel cannot be found to have been ineffective for failing to attempt to exclude the testimony of Daphne Wilson who was a witness to the events in question. Petitioner's claim must fail.
Petitioner next argues that his counsel was ineffective for failing to investigate the phone recordings in this case or to request funds for an expert voice analyst. (Pet'r's Pet. 5.) Specifically, he contends that if his counsel would have investigated the phone recordings or requested funds to hire an expert voice analyst, he would have been acquitted of all charges because "the expert would have testified that the voice on the tape was that of Shyontez Jackson, not me." (Id.)
The Eleventh Circuit Court of Appeals has held, however, that
Chandler v. United States, 218 F.3d 1305, 1318 (11th Cir. 2000) (internal citations omitted). Thus, where trial counsel determines that further investigation is unnecessary, he cannot be found to be ineffective for failing to pursue the same.
In this case, Petitioner's assumption that had his counsel investigated the phone recordings or requested funds to hire an expert voice analyst, he would have been acquitted is merely that, an assumption. Petitioner's counsel cannot be found to have been ineffective for failing to investigate an avenue of defense that Petitioner speculates could have changed the result of the trial. As such, no error is found as to this claim.
Petitioner next argues that his counsel was ineffective for failing to object to the testimony of the Government's witnesses, which he claims was perjured. (Pet'r's Pet. 5.) He contends that witnesses Daphne Wilson, Rodney Riggins, and Shyontez Jackson each offered perjured testimony to which his counsel did not object and that had his counsel impeached the witnesses with their prior statements, the result of the trial would have been different. (Id.)
Petitioner argues that Ms. Wilson's testimony was knowingly untruthful because the height and weight description she gave prior to trial did not match him. (ECF No. 175, p. 27.) Petitioner contends that Mr. Jackson's and Mr. Riggins' testimony was inconsistent with their prior statements regarding the circumstances surrounding the kidnapping, and as such, was knowingly false. (Id. at 28-30.) Petitioner claims that these inconsistencies put the government on notice that the testimony was false. Petitioner, however, has failed to present any evidence that the testimony given under oath at trial was indeed perjury. Petitioner has offered no proof that the statements given by Riggins and Jackson prior to trial were indeed untruthful statements and that the statements given under penalty of perjury at trial were factual.
Secondly, Petitioner has failed to present evidence that had his counsel been able to impeach the testimony, that he would have been acquitted. That is mere speculation on Petitioner's part. Furthermore, Petitioner's counsel could not have stopped the witnesses from testifying. Wilson, Jackson and Riggins were witnesses called by the prosecution during its case in chief to present the facts as alleged in the indictment.
Evidence presented at the trial showed Petitioner's physical presence at the crime scene, and there were other witnesses called by the Government, specifically, Carol Oates and Tomika Durham, that testified as to Petitioner's involvement in the crime. Thus, Petitioner has not established that his counsel's performance was deficient merely because he did not object to the testimony of Wilson, Riggins or Jackson. This claim must therefore fail.
Next, Petitioner contends that his counsel was ineffective for failing to object to the government's misconduct regarding witness Daryl Joseph. (Pet'r's Pet. 6.) Specifically, he contends that the government intimidated Daryl Joseph and convinced him not to testify on Petitioner's behalf. (Id.) Petitioner argues that when the government entered into its plea agreement with one of his co-defendants, Daryl Joseph, it knew or should have known that Petitioner was innocent of the crimes in this case. Petitioner claims that "based upon this knowledge, the government entered into a plea agreement with Mr. Joseph that falsely stated that I accompanied him into the premises in efforts to prohibit him from exonerating me of the crime at trial." (Id.) He contends that had his counsel objected to said misconduct by the prosecution, the result of the trial would have been different and the indictment would have been dismissed. (Id. at 9.)
Petitioner once again fails to present any evidence to support his claim that the government intimidated witness Daryl Joseph into not testifying on his behalf. As was noted by the Respondent, Joseph implicated Petitioner in the crime in his plea agreement and acknowledged that if he testified, said testimony would be consistent with the facts stipulated in the plea agreement. (ECF No. 127, p. 9.) In what he entitled a "Motion to Expand the Record"
Nonetheless, Petitioner's counsel could not have been aware of the alleged intimidation of Daryl Joseph at the time of his trial.
Claimant's next contention of ineffective assistance of counsel argues that his counsel failed to object to the introduction of his co-defendants, Rodney Riggins and Daryl Joseph's, plea agreements. (Pet'r's Pet. 9, 10.) Although the Petitioner is correct that his co-defendant, Riggins, did testify and that it was noted during the trial that he had previously pled guilty to the crime, there is no evidence that the plea agreements were introduced to the jury.
Of note, merely stating that a co-defendant has pled guilty in exchange for his testimony in a criminal case does not deprive a defendant of his right to a fair trial as Petitioner claims. However, in his Traverse to the government's Response to his Motion to Vacate, Petitioner states that he "abandons this claim in light of the strength of [his] other claims." As such, this ground is deemed abandoned.
Petitioner's next allegation of error asserts that his counsel was ineffective for failing to raise the issue of:
(Pet'r's Pet. 10.) In his later pleadings, Petitioner stated with regard to this claim that he "specifically asserted that trial counsel provided ineffective assistance of counsel for failing to object to the government's non-disclosure of Brady and Giglio violations with respect to its failure to disclose DNA results of Government's Exhibits 16, 19, and 51." (ECF Nos. 173, 179.)
This claim is convoluted at best. It should again be noted that Petitioner has failed to cite to any verifiable evidence which would substantiate this claim. His reliance on the affidavit he filed in Jackson's name is misplaced as is noted in the discussion of the previous issue. Even still, Petitioner has failed to establish that his counsel knew of the government's alleged misconduct regarding non-disclosure of violations pertaining to certain DNA results during his trial. Petitioner's mere allegations regarding what he claims his counsel "knew" are not enough. It logically follows, then, that counsel could not be found ineffective for failing to raise the issue.
Next, Petitioner argues that his counsel was ineffective for failing to object to the trial court's failure to decrease the base offense level of the charge for sentencing purposes. (Pet'r's Pet. 11; ECF No. 173-2, p. 45.) Petitioner claims that because the victim in this case was released within 24 hours, the base level for sentencing should have been decreased by one level pursuant to Guideline § 2A4.1(b)(4)(c). (Id.)
Section 2A4.1 of the United States Sentencing Guidelines regarding Kidnapping, Abduction, and Unlawful Restraint, which were in effect when Petitioner was indicted, reads:
U.S. Sentencing Guidelines Manual §2A4.1 (2006.) The relevant Guidelines provide for increasing the base level where a kidnapping victim is not released within a certain time, but there is no provision for decreasing the base level where the victim is released any earlier. Because there is no provision for seeking a one level reduction in the base offense level, there can be found no error in failing to pursue the reduction. Therefore, Petitioner's counsel was not ineffective for failing to ask for a one-level reduction in the base offense level in this case.
With regard to any claims against counsel on appeal, the Eleventh Circuit Court of Appeals has held that the Strickland standard also applies to ineffective assistance of appellate counsel claims. Heath v. Jones, 941 F.2d 1126, 1130 (11th Cir. 1991). To prevail on such claims, a petitioner must show that his appellate counsel's performance was deficient and that this performance prejudiced the defense. Id. Furthermore, "the Sixth Amendment does not require appellate advocates to raise every non-frivolous issue." Philmore v. McNeil, 575 F.3d 1251, 1265 (11th Cir. 2009) (citing Heath 941 F.2d at 1130-31).
Petitioner argues that he had "several arguable issues to appeal" which he addressed in Grounds 1-7 above. (Pet'r's Pet. 11; ECF No. 173-2, p. 46.) He contends that the issues actually raised by appellate counsel in his direct appeal were frivolous, but that counsel should have raised the issues he has cited in his petition. (Id.)
Finding that none of Petitioner's Grounds for ineffective assistance of trial counsel relief are meritorious, appellate counsel cannot be found to be ineffective for failing to raise them. As such, this claim must fail.
Petitioner has filed several motions that are currently pending in this case. Specifically, Petitioner has filed a Motion for Appointment of an Expert Voice Analyst to Analyze the Tape Recordings in the Government's Possession (ECF No. 164); Motion for Post-Conviction Discovery Pursuant to Rule 6 of the Rules Governing § 2255 Proceedings and/or Motion to Compel DNA Testing of Government's Exhibit 19 (ECF No. 167); a letter Motion for Post-Conviction Discovery (ECF No. 172); and a Motion to for Summary Judgment and/or Motion to Compel Post-Conviction Discovery (ECF No. 178). Because the Court has recommended denial of each of the Grounds for Relief in Petitioner's Motion to Vacate, each of the pending motions is HEREBY DENIED AS MOOT.
Rule 11(a) of Rules Governing Section 2254 Cases in the United States District Courts provides that "[t]he district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." Title 28, United States Code,
Section 2253(c) provides:
Petitioner cannot meet this standard and, therefore, a certificate of appealability in this case should be denied.
