LANCE M. AFRICK, District Judge.
Before the Court is a pro se motion
On August 29, 2011, Stafford was charged in all counts of a 3-count bill of information.
On September 7, 2011, Stafford pleaded guilty to all three counts before U.S. District Judge Feldman.
On November 8, 2012, after the Court granted several motions to continue sentencing by the government in order to determine whether Stafford could provide substantial assistance to the government,
On November 8, 2013, Stafford filed the pending motion to vacate his sentence pursuant to 28 U.S.C. § 2255, alleging four different grounds for relief, as described below.
Section 2255(a) provides a prisoner in custody with four grounds upon which relief may be granted: (1) "that the sentence was imposed in violation of the Constitution or laws of the United States;" (2) "that the court was without jurisdiction to impose such sentence;" (3) "that the sentence was in excess of the maximum authorized by law;" or (4) that the sentence "is otherwise subject to collateral attack." 28 U.S.C. § 2255(a); see Hill v. United States, 368 U.S. 424, 426-27 (1962). Section 2255 is designed to remedy constitutional errors and other injuries that could not be brought on direct appeal and would result in injustice if left unaddressed. See United States v. Williamson, 183 F.3d 458, 462 (5th Cir. 1999). "[A] proceeding under Section 2255 is an independent and collateral inquiry into the validity of the conviction. . . ." United States v. Hayman, 342 U.S. 205, 222-23 (1952). The inquiry does not extend to the misapplication of sentencing guidelines. See Williamson, 183 F.3d at 462.
"The § 2255 remedy is broad and flexible, and entrusts to the courts the power to fashion an appropriate remedy." United States v. Garcia, 956 F.2d 41, 45 (4th Cir. 1992) (citing Andrews v. United States, 373 U.S. 334, 339 (1963)). Pursuant to § 2255, the Court must grant defendant a hearing to determine the issues and make findings of fact and conclusions of law unless "the motion, files, and records of the case conclusively show that the prisoner is entitled to no relief." United States v. Bartholomew, 974 F.2d 39, 41 (5th Cir. 1992).
"The Supreme Court has emphasized repeatedly that a collateral challenge may not do service for an appeal." United States v. Shaid, 937 F.2d 228, 231 (5th Cir. 1991) (quotation omitted). "[T]he general rule [is] that claims not raised on direct appeal may not be raised on collateral review unless the petitioner shows cause and prejudice" or actual innocence. Massaro v. United States, 538 U.S. 500, 504 (2003); Bousley v. United States, 523 U.S. 614, 622 (1998). The Supreme Court has held that "failure to raise an ineffective-assistance-of-counsel claim on direct appeal does not bar the claim from being brought" in a § 2255 proceeding. Massaro, 538 U.S. at 509; see also, e.g., United States v. Johnson, 124 F. App'x 914, 915 (5th Cir. 2005).
The Court first considers grounds two, three, and four of Stafford's request for relief, and it considers ground one last.
Stafford's second asserted ground for relief is based on the argument that the U.S. Supreme Court's decision in Alleyne v. United States, 133 S.Ct. 2151 (2013), should be retroactively applied to his case.
In his third ground for relief, Stafford asserts that his "Sixth Amendment right to effective assistance of counsel was violated" because his attorney failed to file a notice of appeal after being asked to do so.
On the final page of Stafford's petition, he signed a declaration that states, "I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. . . ."
The United States Supreme Court set forth the standard for judging the performance of counsel in Strickland v. Washington, 466 U.S. 668 (1984). In Strickland, the Court articulated a two-part test that requires the petitioner to prove (1) deficient performance and (2) resulting prejudice. Id. at 697.
Deficient performance is established by "show[ing] that counsel's representation fell below an objective standard of reasonableness." Id. at 688. In applying this standard, a "court must indulge a `strong presumption' that counsel's conduct falls within the wide range of reasonable professional assistance because it is all too easy to conclude that a particular act or omission of counsel was unreasonable in the harsh light of hindsight." Bell v. Cone, 535 U.S. 685, 702 (2002) (quoting Strickland, 466 U.S. at 689).
The second prong of the Strickland test looks to the prejudice caused by counsel's allegedly deficient performance. This requires "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. In the context of alleged trial errors, the petitioner must show that his "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland, 466 U.S. at 687. "In the context of pleas a defendant must show the outcome of the plea process would have been different with competent advice." Lafler v. Cooper, 132 S.Ct. 1376, 1384 (2012).
The petitioner must satisfy both prongs of the Strickland test in order to be successful on an ineffective assistance claim. See Strickland, 466 U.S. at 697. A court is not required to address these prongs in any particular order. Id. If it is possible to dispose of an ineffective assistance of counsel claim without addressing both prongs, "that course should be followed." Id.
In the context of a failure to file an appeal, Strickland's first prong "begins with the question whether counsel `consulted' with the defendant regarding an appeal." United States v. Pham, 722 F.3d 320, 323 (5th Cir. 2013) (citing Roe v. Flores-Ortega, 528 U.S. 470, 478 (2000)). "`Consulting' is a term of art that means `advising the defendant about the advantages and disadvantages of taking an appeal, and making a reasonable effort to discover the defendant's wishes.'" Id. (quoting Flores-Ortega, 528 U.S. at 478). "`If 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 323-24 (quoting Flores-Ortega, 528 U.S. at 478).
By alleging that he instructed counsel to file an appeal and that counsel failed to do so, Stafford has alleged facts sufficient, if proven by a preponderance of the evidence, to meet Strickland's deficiency prong because "a lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable." Flores-Ortega, 528 U.S. at 477. Furthermore, Stafford has also raised a question as to whether his attorney consulted with him regarding an appeal.
With respect to counsel's failure to file an appeal, Strickland's prejudice prong requires petitioner to show "a reasonable probability that, but for counsel's [deficient performance], he would have timely appealed." Pham, 722 F.3d at 324 (quoting Flores-Ortega, 528 U.S. at 484). "[I]f the petitioner is able to demonstrate by a preponderance of the evidence that he requested an appeal, prejudice will be presumed and the petitioner will be entitled to file an out-of-time appeal, regardless of whether he is able to identify any arguably meritorious grounds for appeal. . . ." United States v. Tapp, 491 F.3d 263, 266 (5th Cir. 2007); see also United States v. Higgins, 459 F. App'x 412, 413 (5th Cir. 2012) (quoting Tapp, 491 F.3d at 266). Accordingly, like the deficiency analysis, the prejudice analysis for this claim will turn on whether petitioner can show by a preponderance of the evidence that he requested an appeal.
The government submitted an affidavit of Stafford's attorney at the time, Marion B. Farmer, in which he states: "At no time did Mr. Stafford request that an Appeal be made from his sentence that he received on November 8, 2012, before [this Court]. Counsel has gone through his entire file and found no indication that Mr. Stafford was requesting an Appeal be made in connection with this matter."
Stafford's "unsworn declaration, made under penalty of perjury, carrie[s] the same `force and effect'" as an affidavit and is competent evidence supporting his claim. United States v. Pena-Garavito, 539 F. App'x 506, 507 (5th Cir. 2013); United States v. Ryan, 215 F. App'x 331, 332 (5th Cir. 2007); see also 28 U.S.C. § 1746. Because the Court is confronted with conflicting declarations from Stafford and his attorney, "the record fails to conclusively establish that [Stafford] did not instruct counsel to file a notice of appeal." Pena-Garavito, 539 F. App'x at 507. Accordingly, an evidentiary hearing is required as to this ground.
In his fourth asserted ground for relief, Stafford asserts that "the Indictment in his case was invalid, and [the] bill of particular[s] cannot cure the defect, because the indictment failed to contain every essential element" of the offense, specifically the drug quantities.
Stafford is really contending that the drug quantities were not charged in the bill of information. With respect to count 1, the bill of information charges that the conspiracy was directed to "two-hundred and eighty grams or more of cocaine base (`crack')."
Counts 2 and 3 refer only to "a quantity of cocaine base (`crack')."
Stafford signed and admitted to a factual basis in which he admits that he "conspired to distribute more than two-hundred eight (280) grams of cocaine base (crack) with numerous persons."
The Court finds that the bill of information properly charged the drug quantities for the offenses to which Stafford pleaded guilty and that Stafford admitted to those quantities in a knowing and voluntary factual basis.
Ground one of Stafford's petition is difficult to interpret. As written, the introductory sentence to ground one states, "The Movant[] contend[s] that his guilty plea was entered involuntar[ily] in violation of the Fifth Amendment['s] Due Process Clause based upon the Judge judicial [sic] factual determination under [an] unconstitutional standard of proof which increased the Movant's minimum mandatory sentence."
Stafford's supplemental memorandum further explains and amends his allegations with respect to ground one. Stafford asserts that the Court "did not compl[y] with Federal Rules of Criminal Procedure[] 11(b)(1)(h)(i) [sic] because the Defendant Stafford was not sentence[d] to ten (10) years mandatory minimum as explained to him by his attorney[], the Government and Judge."
The Court addresses each of these additional arguments in turn.
Rule 11(b)(1) of the Federal Rules of Criminal Procedure lists a number of rights and consequences which the Court must ensure that any defendant understands before it accepts a plea of guilty or nolo contendere. Rule 11(b)(1)(H) requires the Court to advise the defendant of "any maximum possible penalty, including imprisonment, fine, and term of supervised release." Rule 11(b)(1)(I) requires the Court to advise the defendant of "any mandatory minimum penalty."
On September 7, 2011, at Stafford's rearraignment,
Later, counsel for the government, Duane Evans, explained to Stafford that the government may, but was not bound to, request a reduction to Stafford's sentence in the event that he "provide[d] substantial assistance to the government."
Finally, just before adjudging Stafford guilty, the Court again explained the sentence that he faced and reiterated that Stafford could receive the maximum sentence.
The rearraignment transcript makes clear that the Court fully satisfied the requirements of Rule 11. Stafford indicated his understanding throughout the proceeding. Accordingly, Stafford's challenge to the Court's compliance with Rule 11 is without merit.
Stafford also asserts that he was guaranteed a sentence of ten years and that the government breached the plea agreement by advocating for a higher sentence.
"A defendant who seeks to prevail on a claim that his plea was involuntary due to counsel's representations concerning the sentence he would receive must show that his plea was motivated by an `actual promise.'" United States v. Fernandez, 317 F. App'x 388, 390 (5th Cir. 2009) (quoting Smith v. McCotter, 786 F.2d 697, 701 (5th Cir. 1986)). "To prevail on the theory of an actual promise, the petitioner must prove: (1) the exact terms of the promise; (2) exactly when, where, and by whom the promise was made; and (3) `the precise identity of an eyewitness to the promise.'" Id. (quoting Smith, 786 F.2d at 701). "Significantly, a guilty plea is not rendered involuntary simply because a defendant misunderstood his defense counsel's inaccurate prediction that a lesser sentence would be imposed[.]" United States v. Lewis, No. 07-428, 2012 WL 368712, at *5 (E.D. La. Feb. 3, 2012) (Feldman, J.). "[I]f the defendant's expectation of a lesser sentence did not result from a promise or guarantee by the court, the prosecutor or defense counsel, the guilty plea stands." Fernandez, 317 F. App'x at 390 (quoting Daniel v. Cockrell, 283 F.3d 697, 703 (5th Cir. 2002)).
Stafford has only provided his unsubstantiated assertion that "he understood he would receive" a ten year sentence.
For the foregoing reasons,
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