J. CLAY FULLER, Magistrate Judge.
Movant has filed a 28 U.S.C. § 2255 motion to vacate her sentence. (Doc. 58).
On April 1, 2014, a federal grand jury charged Movant with possession with intent to distribute methamphetamine (Count 1), possession with intent to distribute at least 50 grams of methamphetamine (Count 2), and possession of a firearm by a convicted felon (Count 3). (Doc. 1). She pled guilty to Count Two, which carries a mandatory minimum sentence of 60 months' imprisonment. (See Doc. 45); 21 U.S.C. § 841(b)(1)(B). On February 11, 2016, she received the 5-year minimum sentence, to be followed by 4 years of supervised release. (Doc. 51). She did not file an appeal.
The government has provided the following factual background:
(Doc. 61 at 2).
In her § 2255 motion, Movant raises three claims of ineffective assistance of counsel, although she has subsequently abandoned her first claim:
(Doc. 58 at 4, 5, 7; but see Doc. 62 (Movant's Reply) at 3 ("[Movant] concedes ground one. She is not eligible for the safety valve due to prior convictions.")).
A federal prisoner may file a motion to vacate her sentence "upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a). But it is well-settled that "to obtain collateral relief, a prisoner must clear a significantly higher hurdle than would exist on direct appeal." United States v. Frady, 456 U.S. 152, 166 (1982).
The Supreme Court set forth the standard for evaluating claims of ineffective assistance of counsel in Strickland v. Washington, 466 U.S. 668 (1984); see Dell v. United States, 710 F.3d 1267, 1272 (11th Cir. 2013) (applying Strickland standard of review to ineffective-assistance-of-counsel claim raised in § 2255 motion). "An ineffectiveness claim . . . is an attack on the fundamental fairness of the proceeding whose result is challenged." Strickland, 466 U.S. at 697. The analysis involves two components, but a court need not address both if the petitioner "makes an insufficient showing on one." Id.
First, a federal court determines "whether, 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. The court "must be highly deferential" in scrutinizing counsel's performance and "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. In other words, the petitioner "must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Id. (Internal quotations omitted). "Given the strong presumption in favor of competence, the petitioner's burden of persuasion—though the presumption is not insurmountable—is a heavy one." Chandler v. United States, 218 F.3d 1305, 1314 (11th Cir. 2000) (en banc). Second, a federal court determines whether counsel's challenged acts or omissions prejudiced the petitioner, i.e., whether "there is a reasonable probability"—one "sufficient to undermine confidence in the outcome"—that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694.
Connolly v. United States, 568 Fed. Appx. 770, 770-71 (11th Cir. 2014).
As noted, Movant has abandoned her ground one claim. (See Doc. 62 at 3).
Movant argues in support of ground two that counsel failed to object at sentencing to the firearm enhancement she received for an unloaded gun, even though no ammunition was found in her home. (Doc. 59 at 11). Movant notes that because of the firearm enhancement, she is ineligible for a sentence reduction of up to one year under 18 U.S.C. § 3621(e)(2)(B) for having completed a Residential Drug Abuse Program ("RDAP") while in federal custody. (Id. at 12-14). In her reply brief, she argues as follows:
(Doc. 62 at 1-2).
Without the benefit of Movant's supporting brief (Doc. 59), the government argues with respect to both grounds one and two that Movant cannot show prejudice as a result of the firearm sentencing enhancement because she was required to receive at least the statutory minimum sentence of 60 months' imprisonment, with or without the enhancement, which is the sentence that she received. (Doc. 61 at 4-7).
The Court agrees. Had Movant proceeded to trial and been convicted only on count two, she would have lost the three-level reduction in her sentencing range based on acceptance of responsibility, and she may well have received a much longer sentence had she also been convicted of being a felon in possession of a firearm, as charged in count three.
Moreover, in order to prevail on her ground two claim, Movant must show that she would not have pled guilty but for counsel's allegedly coercive promise that she would receive a one-year sentence reduction for successfully completing a RDAP. (See Doc. 62 at 2). But Movant acknowledged at her plea hearing that, beyond the terms of her plea agreement, not "any promise of any kind [was] made to [her] to get [her] to plead guilty," and that she had not been "threatened or forced [] to plead guilty in any way." (Doc. 64 at 8).
Thus, Movant's argument that her plea was unknowing or involuntary because counsel promised her a one-year RDAP sentence reduction, and thereby coerced her into pleading guilty, flies in the face of her acknowledgement at her plea hearing that no promise or coercion of any kind, other than the terms of her plea agreement, had induced her to plead guilty. See Connolly, 568 Fed. Appx. at 771 (quoting Blackledge, 431 U.S. at 73-74, to the effect that a defendant's statements at a plea hearing "constitute a formidable barrier in any subsequent collateral proceedings" because "[s]olemn declarations in open court carry a strong presumption of verity. The subsequent presentation of conclusory allegations unsupported by specifics is subject to summary dismissal, as are contentions that in the face of the record are wholly incredible."). The Court should deny Movant's ground two claim.
In her supporting brief, Movant alleges that she "informed her attorney after sentencing to prosecute an appeal on the sentencing enhancement." (Doc. 59 at 15). In her reply brief, Movant argues as follows:
(Doc. 62 at 2).
The government acknowledges that "[t]he Eleventh Circuit holds that `an attorney who fails to file an appeal on behalf of a client who specifically requests it acts in a professionally unreasonable manner per se.'" (Doc. 61 at 7 (quoting Gomez-Diaz v. United States, 433 F.3d 788, 791-92 (11th Cir. 2005), which in turn cited Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000))). Again without the benefit of Movant's supporting brief, the government contends that "[h]ere, there is no allegation that defendant specifically told her attorney to appeal her sentence and he failed to do so, therefore, the holding in Gomez-Diaz does not apply." (Doc. 61 at 7). The government argues further that
(Doc. 61 at 8).
Movant's allegation that she asked her attorney to file a notice of appeal, which he failed to do, implicates her Sixth Amendment rights as set forth in Gomez-Diaz and Flores-Ortega. In these circumstances, she should be given an opportunity to file an out-of-time appeal, even if success on appeal is unlikely. Therefore, the Court should appoint appellate counsel for Movant and, upon counsel's appearance on the record, re-enter the Judgment and Commitment Order for Movant so that counsel can then file a notice of appeal within the 14-day deadline.
A § 2255 movant must obtain a certificate of appealability ("COA") before appealing the denial of a motion to vacate. 28 U.S.C. § 2255(d); 28 U.S.C. § 2253(c)(1)(B). A COA may issue only when the movant makes a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). This standard is met when "reasonable jurists could debate whether (or, for that matter, agree that) the [motion to vacate] should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further." Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotations omitted). A movant need not "show he will ultimately succeed on appeal" because "[t]he question is the debatability of the underlying constitutional claim, not the resolution of that debate." Lamarca v. Sec'y, Dep't of Corr., 568 F.3d 929, 934 (11th Cir.) (citing Miller-El v. Cockrell, 537 U.S. 322, 337, 342 (2003)). Although Slack involved an appeal from the denial of a 28 U.S.C. § 2254 petition, the same standard applies here. See Jones v. United States, 224 F.3d 1251, 1254 (11th Cir. 2000) (applying Slack standard in § 2255 case). Because Movant has abandoned her ground one claim and there is no reasonable argument that her ground two claim has merit, a COA should not issue in this matter.
Should the Court accept this recommendation, it is further
The Clerk is
