JUSTIN S. ANAND, Magistrate Judge.
Movant, Curtis Jones, filed a 28 U.S.C. § 2255 motion to vacate his sentence, proceeding pro se (Doc. 156); followed by two counseled superseding § 2255 motions (Doc. 181 (filed by appointed counsel, Giles Jones); Doc. 189 (filed by first retained counsel, Rodney Zell)); and a final explanation of Movant's claims, filed by second retained counsel, Stephen Reba, in a post-hearing brief (Doc. 207) and reply brief (Doc. 209) following the November 21, 2018 hearing on this matter (see Doc. 206 (Hearing Tr.)).
The government has laid out the factual and procedural background to this case in great detail on two separate occasion. (See Doc. 196 (Gov't 1st Resp. Br.) at 4-20; Doc. 208 (Gov't Post-Hrg. Resp. Br.) at 7-21). The Eleventh Circuit has also done so, as set forth in part below. (See Doc. 154 (11th Cir. opinion affirming Movant's convictions) at 2-13). Represented by Steve Sadow, Movant was convicted after a jury trial on two counts of cocaine trafficking and sentenced to 180 months in prison. At sentencing and on appeal, Movant was represented by new counsel, Adam Hames, who claimed on appeal that this Court had erred by (1) enhancing Movant's sentence based on the possession of a firearm in relation to the drug trafficking crimes and (2) admitting into evidence lay opinion testimony from law enforcement officers about the meaning of intercepted telephone calls played at Movant's trial, recordings of wiretaps obtained for the telephones of Movant and others. (Id. at 14, 18). The Eleventh Circuit rejected these claims. (See id. at 17 ("Jones's challenge to Special Agent Connolly's testimony concerning the intercepted calls, though preserved on appeal, ultimately fails. First, Special Agent Connolly did not interpret specific code words during his testimony or indicate particular calls referred to cocaine transactions. Instead, he stated as a general matter drug traffickers often use coded language in phone calls. Moreover, even if Special Agent Connolly had testified regarding the meaning of specific code words in the intercepted calls, his testimony would have been proper lay testimony under our case law." (footnote omitted))).
The Eleventh Circuit summarized the factual background as follows:
(Doc. 154 at 2-6 (emphasis added; footnote omitted)).
In his original, pro se § 2255 motion, Movant raised eight claims of ineffective assistance of trial counsel, for failing to do the following:
(Doc. 156-1 at 6-18). Movant also raised a claim of ineffective assistance of sentencing counsel. (Id. at 16).
The Court determined, based on the Government's response, that an evidentiary hearing was required on certain issues and appointed counsel, Giles Jones, for Movant on March 10, 2017. [165]. The Court originally set an evidentiary hearing for May 9, 2017. [166]. The date for this hearing was re-set four separate times between May 9, 2017 and February 21, 2018, at Movant's request. [168, 174, 177, 179]. In the meantime, because there was obvious confusion as to what issues Movant was still asserting, and the Government requested clarity in this regard, the Court also ordered Movant to file, with the benefit of counsel, an amended § 2255 Motion that properly identified the issues currently being pursued, by January 22, 2018. [179].
Attorney Jones thus filed an amended § 2255 motion. [181]. Jones concentrated on the eighth claim, arguing that Movant most likely would have pled guilty had trial counsel properly informed him of the strength of the government's case and the benefits of pleading guilty:
(Id. at 15).
However, by the time Attorney Jones filed the amended motion, the relationship between him and Movant had broken down, and he indicated that Movant would be hiring new counsel. Thus, Attorney Jones explained that while his January 22, 2018 filing was his best effort to comply with the Court's deadline, he acknowledged that his client, who had become dissatisfied with Jones's efforts, had not specifically reviewed or "approved" it.
At a status hearing on January 31, 2018 [182], Movant confirmed dissatisfaction with Mr. Giles Jones's services and announced that he (Movant) would be replacing Mr. Jones with retained counsel of his own choice. Although the hearing had already been re-set four separate times, the Court agreed to allow this belated change of counsel, continued the February 21, 2018 evidentiary hearing, continued Movant's deadline to file a complete amended petition to March 16, 2018, and set a further status conference for March 22, 2018. [Id.]. The next day, February 1, 2018, Attorney Rodney Zell filed a Consent to Substitution of Counsel, thereby formally replacing Giles Jones as Movant's attorney of record in the case. [183]. After a status conference with new counsel, the Court subsequently continued the deadlines yet again, allowing Movant to file an amended § 2255 motion by April 6, 2018. [188].
Mr. Zell then filed an amended Motion under 28 U.S.C. § 2255 on April 6, 2018 [189], raising the following claims:
(Id. at 1-2).
However, shortly afterwards, Mr. Zell filed a supporting brief stating that Movant "is proceeding only on ground three of his superseding motion." (Doc. 192 at 1). Zell argued:
(Id. at 3-4 (footnote omitted)). "The only real question [then] is whether this Court believes [Movant] would have pled guilty had he known that the Government could present the testimony in question." (Id. at 5).
On July 30, 2018, the Court received a letter, pro se, from Movant, indicating that he disagreed with Mr. Zell as to what issues should be raised in his § 2255 case and stating that he objected, in particular, to abandoning any challenge to trial counsel's failure to move to suppress the wiretaps. [197]. The Court subsequently held a hearing on September 6, 2018, which included a lengthy in camera discussion with Movant and his counsel, during which Movant requested that the Court appoint new counsel for him. The Court denied the request to appoint new counsel again, at that late stage of the proceeding, after the evidentiary hearing already had been continued five times and after Movant already had replaced his previously appointed counsel with retained counsel. [198].
The Court set the evidentiary hearing for November 14, 2018. [Id.]. Movant subsequently filed pro se motions to amend/supplement his § 2255 motion [199] and for appointment of new counsel [200], which the Court again denied, by Order on September 19, 2018 [201]. The undersigned, among other reasons expressed in the Order, denied the pro se request to amend the § 2255 Motion because Movant was represented by counsel and was therefore not allowed to file motions pro se. [201].
After the five prior continuances and one final, brief delay, the hearing took place on November 21, 2018. [202]. Mr. Zell's questioning focused on the legal issues presented in the § 2255 briefing, specifically as to trial counsel's advice as to the risks of trial and benefits of considering a guilty plea. However, although not specifically asserted among the issues presented in the pre-hearing briefing, the Court permitted additional questions of trial counsel as to the concerns that Defendant had expressed pro se. Specifically, the Court permitted testimony as to trial counsel's review and analysis of the wiretap paperwork and tactical decisions regarding whether to file any motions to suppress the wiretap evidence. (See Evid. Hrg. Tr. [206] at 6-7).
After the hearing, Movant replaced Mr. Zell with another retained attorney, Stephen Reba. Mr. Reba filed a post-hearing brief in which he acknowledged that due to Mr. Zell's abandonment of Movant's claims regarding the wiretaps, "the only claim presently before the Court" is the claim that Movant received ineffective assistance of counsel with respect to plea negotiations. (Doc. 207 at 15). While Mr. Reba has offered no argument in support of this claim, he argues in Movant's post-hearing brief that the undersigned erred in not allowing Movant to explore his wiretap claims before the November 2018 hearing, with the help of new counsel to replace Mr. Zell and his "abandonment brief." (Id. at 10-14). Mr. Reba asks the Court to allow Movant "to amend his motion and that the evidentiary hearing be held again—for the first time." (Id. at 14).
In his post-hearing reply brief, Mr. Reba again asks the Court to allow Movant to amend his § 2255 motion "one final time and set the matter for a final hearing." (Doc. 209 at 2). He argues:
(Id.).
A federal prisoner may file a motion to vacate his 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).
The government first asserts that in its original, pre-hearing response to Movant's pro se § 2255 motion (Doc. 196), it thoroughly refuted Movant's claim that trial counsel provided ineffective assistance during plea negotiations — and it stands by that refutation because Movant has added nothing new in his post-hearing pleadings. (Doc. 208 at 22). The government notes that in its initial response brief, it explained the law on the issue of ineffective assistance of counsel when a plea offer is rejected or lapses, which requires that the Movant asserting the claim
(Id. at 23).
The government argues that Sadow's testimony at the November 2018 hearing belies Movant's claim that Sadow failed "to properly advise [Movant] regarding the strengths of the Government's case [before Movant rejected] the Government's plea offer." (Id.; see id. at 23-24 (citing multiple instances from the November 2018 hearing transcript (Doc. 206) when "attorney Sadow testif[ied] about the conversations he had with [Movant] regarding: the `strength' of the government's evidence; the nature of the evidence against [Movant] including seized narcotics and the wiretap recordings; any available trial defenses; plea negotiations with the Government, including the specific number of years offered by the Government; the risks versus reward in going to trial; the possibility of [Movant's] cooperation with the Government and a resulting decrease in his sentence; possible cooperating witnesses; and attorney Sadow testifying about his wish that [Movant] had pleaded guilty instead of rejecting the negotiated plea offer and insisting upon a `5-year deal' not offered by the Government")). "Tellingly, [Mr. Reba] does not appear to continue to press the argument that Sadow was ineffective during plea negotiations, as he offers no response to this testimony. Accordingly, Movant has failed to even argue, much less demonstrate, prior counsel's incompetence." (Id. at 24 (citation omitted) (citing Doc. 207 at 15)).
At his sentencing hearing, Movant told the District Judge: "I never was offered a plea, I never was offered a plea." (Doc. 146 (Sentencing Hrg. Tr.) at 30). But the testimony, all credible, offered at the November 2018 hearing shows otherwise. Sadow testified: "And while I wasn't given a guarantee, I brought back to [Movant] that we had a shot at [a] seven[-year sentence]. I felt pretty good about eight. He wanted five and wouldn't take anything but five, and I thought on a couple of occasions we almost had it but never got there." (Doc. 206 at 20; see id. at 34-44 (Sadow's testimony about plea negotiations and the email exchanges between himself and the prosecutor regarding a possible plea deal); id. at 53-54 (Sadow's testimony noting that Movant wanted a "guaranteed five-year deal," which the government was not willing to offer due to the amount of cocaine seized in connection with the case); id. at 134-42 (testimony of Agent Connolly regarding the attempts to get Movant to cooperate in exchange for a lighter sentence)). Sadow testified that the only reason the government was willing to offer Movant a sentence that was under the mandatory minimum of ten years was in exchange for Movant providing the name of his source for the cocaine he was selling. (Id. at 19-20). And the prosecutor noted at sentencing: "I had I think two separate meetings with [Movant], his charges were made clear to him and an offer of a plea was made to him and offer for cooperation was made to him, all of this occurring before trial." (Doc. 146 at 33).
Sadow also testified at the November 2018 hearing that "the one thing that I wish is he would have taken a plea. I just say that for the record because I thought we had gotten to the point where it was in his best interest, but once he said no to anything other than a five-year guarantee, I had no choice [but to try the case]." (Doc. 206 at 23; see id. at 55-56, 60 (Sadow's testimony repeatedly denying that he ever advised Movant to reject the government's plea offer)). When Zell asked Sadow if he discussed with Movant "some of the consequences that can occur from going to trial instead of pleading guilty," such as the loss of the sentencing reduction for acceptance of responsibility, an increase in the quantity of cocaine attributable to Movant for sentencing purposes, an upward departure because of the firearm, and so forth, Sadow responded, "Absolutely." (Id. at 29). Sadow "specifically explained to Movant the consequences of going to trial," including the fact that "there was no way if he goes to trial and loses he gets less than [the mandatory minimum of] ten" years' imprisonment. (Id.). Indeed, because of the strength of the government's case — based on "the combination of wiretaps, surveillance and seizures including money" — Sadow proposed a "reverse proffer," which involved a presentation to Movant of "the government's side of the case," to impress upon Movant the wisdom of accepting a plea deal.
It's a pretty special deal?
There[ have] been better since then, but yes. (Doc. 206 at 69).
Movant also stated at sentencing that "no wiretap was ever brought up" during the pretrial proceedings (Doc. 146 at 31, 32), and he restated that claim at the November 2018 hearing (Doc. 206 at 86 (Sadow "never spoke to me about wiretaps"); but see id. at 117 (Movant testifying that he remembers the government "playing some calls . . . from Jonathan Crutcher")). The prosecutor noted at sentencing: "The wire taps were not litigated; however, everything in conjunction with the wiretaps was provided at the very beginning of the case in discovery, the recordings." (Doc. 146 at 33).
In short, all of the credible testimony, and even Movant's own self-contradictory testimony, to a degree, indicates that the government offered Movant a plea deal; that his trial counsel, Steve Sadow, strongly encouraged Movant to accept the government's plea offer; but that Movant insisted on a five-year guaranteed deal, which the government was not willing to offer. For that reason, despite the strength of the government's case — of which Movant was well aware, including the wiretap evidence capturing his voice discussing drug trafficking deals — Movant rejected the government's plea offer and chose to proceed to trial. He cannot attribute that choice to trial counsel's allegedly deficient performance.
The government argues that Movant not only has not established counsel's deficient performance, but he also has not demonstrated prejudice, which would require him to show that, but for counsel's allegedly deficient performance, he would have pled guilty rather than proceed to trial. (Doc. 208 at 25).
Teers v. United States, 739 Fed. Appx. 960, 965-66 (11th Cir. 2018) (citation altered); see also Cox v. United States, 2:05-CR-2-WCO-JCF-1, 2015 U.S. Dist. LEXIS 193502, at *15-16 (N.D. Ga. Sept. 25, 2015) ("Movant has failed to show that he was prejudiced by counsel's performance with respect to plea negotiations, as he must do to sustain a claim of ineffective assistance of counsel, see Strickland, 466 U.S. at 694, because all of the evidence before the Court indicates that Movant, who has maintained his innocence throughout, would not have accepted a plea deal on terms the government was willing to offer."), adopted by 2016 U.S. Dist. LEXIS 194840 (N.D. Ga. Jan. 28, 2016).
The undersigned agrees with the government's apparently uncontested position regarding possible prejudice arising from Sadow's advice to Movant during plea negotiations. Movant has always insisted that he is innocent of trafficking in cocaine, being instead only a marijuana dealer. (See Doc. 146 at 30 ("I want to admit my guilt that I am a marijuana dealer, I wasn§t a cocaine dealer, and I don't think I should get charged for cocaine, it should be marijuana.")). When questioned about this at the November 2018 hearing, Movant did not recall the statement that he made at sentencing: "I sold marijuana, I never said, I never said I didn't do nothing else illegal [sic]." (Doc. 206 at 111-12). But in fact Movant did tell the Court that he was only a marijuana dealer, insisting on his innocence of the cocaine trafficking counts even at his sentencing on those counts. His denial that he made that statement strongly undermines his credibility in these proceedings.
Movant also testified at the November 2018 hearing that had he heard phone conversations between himself and Lester, his co-defendant, who had already pled guilty, "of course I would [have taken] a plea." (Id. at 103). But, again, his credibility in these matters is suspect, especially so because he also testified, immediately thereafter, that "I ain't going to say I would have told Steve [Sadow] I'll take a plea, but I'm not going to sit up here and tell you that I would have said yeah, I'm going to cooperate with the government." (Id.). Although this testimony is confusing, Movant seems to be speaking out of both sides of his mouth here.
In sum, Movant cannot show that he was prejudiced by counsel's performance with respect to the plea negotiations because in order to so, he must show that he was willing to accept a plea deal that the government actually offered, and here it is apparent that he was not willing to do so. Movant's ineffective assistance of counsel claim with respect to plea negotiations fails.
As noted above, Movant asks for a chance to examine the wiretap applications and supporting affidavits in hopes of amending his § 2255 motion to raise claims challenging the propriety of the wiretaps and then proceeding to another hearing on those claims. (Docs. 207, 209). In a motion that Movant filed pro se on September 12, 2018, while still represented by Mr. Zell, he asked the Court to allow him to amend his § 2255 motion to challenge the wiretap evidence because (1) the wiretap applications and the order approving them were not provided to Movant at least 10 days before his trial, in violation of 18 U.S.C. § 2518(9); and (2) Sadow never challenged the wiretap applications to force the government to show that all procedural and substantive requirements of § 2518 had been satisfied. (Doc. 199). The undersigned denied the motion "[b]ecause Movant still has counsel of record, [and thus] his pro se motion to amend/supplement his § 2255 motion (Doc. 199) is not properly before the Court . . . ." (Doc. 201 at 3).
The government characterizes Movant's renewed request for another evidentiary hearing as based on his contention that Mr. Zell provided ineffective assistance with respect to the November 2018 hearing. (Doc. 208 at 25). The government argues that under controlling Supreme Court precedent, the Constitution does not entitle a § 2255 movant to counsel at all, so that a claim of ineffective assistance with respect to § 2255 proceedings is a non-starter. (Id.). The government nevertheless notes that
(Id. at 26).
Movant, through counsel, responds that this Court need not view his request for leave to amend his § 2255 motion and for a final hearing as based on Mr. Zell's possible ineffective assistance, but may view it rather as his final request to pursue "the lawfulness [or not] of the intercepted calls." (Doc. 209 at 1-2 (noting that Sadow testified that he could not remember whether or not he showed Movant the documents at issue)).
Movant's argument fails both procedurally and substantively. The Court held an evidentiary hearing, after no less than five continuances, on the issues properly alleged in the operable amended § 2255 motion and subsequent briefing, as presented through counsel. To the extent Movant comes to the Court after the hearing, after the final deadline that the Court had set for filing an amended § 2255 motion — also after multiple continuances — and after nearly two years of delay in this case, to request that the hearing be re-opened and that new issues be litigated, the Court denies this request as untimely.
To the extent Movant asks the Court to re-visit its refusal (in its September 19, 2018 Order [201]) to allow Movant to file a pro se amended motion, that request is also procedurally meritless. First, no appeal was taken from that Order to the District Judge and therefore all challenges to that Order have long since been waived. See Fed. R. Civ. P. 72(a) ("A party may not assign as error a defect in the order not timely objected to."); Fed. R. Crim. P. 59(a) ("Failure to object in accordance with this rule waives a party§s right to review."); United States v. Hayes, 348 Fed. Appx. 528, 530 (11th Cir. 2009) (unpublished) (challenge to Magistrate Judge's order was waived where Defendant did not timely appeal to the District Judge pursuant to Rule 59(a)). Second, the Order was properly and correctly issued. Where a party is represented by counsel, that party "may not thereafter appear or act in the party's own behalf." LCrR 57.1(D)(3), NDGa. Movant was represented by Mr. Zell when he purported to file his pro se motion to amend, and he did not terminate Mr. Zell's representation until after the evidentiary hearing. Therefore, the Court properly denied the motion to amend [199] as not properly before the Court.
More substantively, the record adduced at the evidentiary hearing contradicts Movant's speculation as to a possible claim based on Sadow's failure to move to suppress the wiretaps. The Court allowed questions on this subject, despite it being abandoned in Movant's pre-hearing brief. Sadow specifically testified that he received the wiretap documents, reviewed them, and concluded that there were no deficiencies or other viable legal challenges to raise, and he also explained that in his expert legal opinion, in any event, wiretap suppression challenges in this Circuit are very unlikely to prevail. (See Doc. 206 at 6-7, 78-80). Counsel therefore made a quintessential tactical decision not to raise such a fruitless challenge.
Movant claimed that Sadow never shared the wiretap paperwork within him. Sadow had no specific recollection as to whether he did or did not do so in this case. But he explained, with reference to his normal course of conduct and procedures, that he likely did share all of the discovery with Movant. (See Doc. 206 at 6-7, 78-80). And even so, the failure to share copies of the wiretap paperwork with Movant is not grounds to find Sadow ineffective. See, e.g., White v. Cason, 04-CV-75071, 2006 U.S. Dist. LEXIS 103090, at *25-26 (E.D. Mich. Feb. 21) (counsel not ineffective; criminal defense attorney has no duty to share discovery documents with client), adopted by 2006 U.S. Dist. LEXIS 12715 (E.D. Mich. Mar. 24, 2006); Ramsden v. Warden, Dept. of Corrs., 02-138-B-S, 2003 U.S. Dist. LEXIS 2377, at *28-29 (D. Me. Feb. 14) (holding that counsel was not ineffective, stating: "I could find no case that stood for the proposition that, in order to deliver constitutionally adequate representation, an attorney must provide his client in every case with hard copies of the discovery documents and investigative reports."), adopted by 2003 U.S. Dist. LEXIS 7101 (D. Me. Apr. 24, 2003); Carillo v. United States, 995 F.Supp. 587, 591 (D.V.I.1998) ("[T]here is no constitutional duty to share discovery documents with petitioner. Petitioner cites no case law for this proposition, and this court finds none.").
Movant's claim now boils down to the notion that he would like to "see the applications and warrants underlying [the] wiretaps" for himself, to second-guess whether Sadow should have made more motions in the criminal case and/or whether his § 2255 lawyers should have asserted wiretap claims. (Post-Hearing Br. [207] at 15). On its face, what Movant demands is a fishing expedition. Even if his requests to amend and to re-open his § 2255 motion and hearing were not procedurally barred—which they are—he continues to show no grounds for any relief.
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 there is no reasonable argument that Movant's sole remaining ground for relief has merit, a COA should not issue in this matter.
The Clerk is
