United States District Court, M.D. Alabama, Northern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
TERRY F. MOORER, Magistrate Judge.
This matter is before the court on a motion by Willie Gene Davis ("Davis") to vacate, set aside, or correct sentence under 28 U.S.C. § 2255.
On May 13, 2008, a jury found Davis guilty of possessing a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1). At sentencing on November 6, 2008, the district court found Davis qualified as an armed career criminal and sentenced him to 220 months in prison. Davis appealed, arguing that the district court erred in denying his motion to suppress evidence. On March 11, 2010, the Eleventh Circuit Court of Appeals issued an opinion affirming his conviction. United States v. Davis, 598 F.3d 1259 (11th Cir. 2010). Davis's petition for certiorari review with the United States Supreme Court was granted, and on June 16, 2011, the Supreme Court affirmed the judgment of the Eleventh Circuit. Davis v. United States, ___ U.S. ___, 131 S.Ct. 2419 (2011).
On January 10, 2012, Davis, proceeding pro se, filed this motion under 28 U.S.C. § 2255 asserting various claims of ineffective assistance of counsel; he specifically asserts:
1. Trial counsel rendered ineffective assistance by -
(a) agreeing with the Government on the facts set out in the suppression motion, without conferring with Davis, and by agreeing that the suppression motion should be denied;
(b) denying Davis his right to testify at the suppression hearing;
(c) failing to challenge the sufficiency of the evidence to convict Davis;
(d) failing to adequately investigate the potentially favorable trial testimony of, or subpoena, certain witnesses;
(e) failing to object to the prosecution's withholding of a potential defense witness subpoenaed by the Government;
(f) failing to object to trial testimony from Davis's parole officer and the prosecution's reference to that testimony during closing arguments; and
(g) breaching his duty of loyalty to Davis.
2. Sentencing counsel rendered ineffective assistance by -
(a) failing to investigate the fact or argue that Davis had been paroled in Alabama as a nonviolent offender and thus his Alabama convictions could not constitute "violent felonies" under the Armed Career Criminal Act ("ACCA"); and
(b) failing to argue that use of Davis's prior state convictions to enhance his sentence under the ACCA violated the Double Jeopardy Clause.
3. Appellate counsel rendered ineffective assistance by -
(a) failing to communicate with Davis about his appeal, including which claims he wanted to present on appeal; and
(b) failing to challenge the Government's factual representations in its appellate brief about a jacket where the firearm was found.
Doc. No. 1 at 4-12; Doc. No. 2 at 2-19.
After consideration of Davis's § 2255 motion, the submissions supporting and opposing the motion, and the record, the court concludes that an evidentiary hearing is not required and that, under Rule 8(a), Rules Governing Section 2255 Proceedings in the United States District Courts, the § 2255 motion should be denied.
A. General Standard of Review
Because collateral review is not a substitute for direct appeal, the grounds for collateral attack on final judgments under 28 U.S.C. § 2255 are limited. A prisoner is entitled to relief under § 2255 if the court imposed a sentence that (1) violated the Constitution or laws of the United States, (2) exceeded its jurisdiction, (3) exceeded the maximum authorized by law, or (4) is otherwise subject to collateral attack. See 28 U.S.C. § 2255; United States v. Phillips, 225 F.3d 1198, 1199 (11th Cir. 2000); United States v. Walker, 198 F.3d 811, 813 n.5 (11th Cir. 1999). "Relief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional rights and for that narrow compass of other injury that could not have been raised in direct appeal and would, if condoned, result in a complete miscarriage of justice.'" Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004) (citations omitted).
B. Ineffective Assistance of Counsel
A claim of ineffective assistance of counsel must be evaluated against the two-part test announced in Strickland v. Washington, 466 U.S. 668 (1984). First, a petitioner must show that "counsel's representation fell below an objective standard of reasonableness." Id. at 689. Second, the petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. See Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000).
Scrutiny of counsel's performance is "highly deferential, " and the court indulges a "strong presumption" that counsel's performance was reasonable. Chandler, 218 F.3d at 1314 (internal quotation marks omitted). The court will "avoid second-guessing counsel's performance: It does not follow that any counsel who takes an approach [the court] would not have chosen is guilty of rendering ineffective assistance." Id. (internal quotation marks and brackets 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." Id.
As noted, under the prejudice component of Strickland, a petitioner must show that "there is 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. A "reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. The prejudice prong does not focus only on the outcome; rather, to establish prejudice, the petitioner must show that counsel's deficient representation rendered the result of the trial fundamentally unfair or unreliable. See Lockhart v. Fretwell, 506 U.S. 364, 369 (1993) ("[A]n analysis focusing solely on mere outcome determination, without attention to whether the result of the proceeding was fundamentally unfair or unreliable, is defective."). "Unreliability or unfairness does not result if the ineffectiveness of counsel does not deprive the defendant of any substantive or procedural right to which the law entitles him." Id. at 372.
Unless a petitioner satisfies the showings required on both prongs of the Strickland inquiry, relief should be denied. Strickland, 466 U.S. at 687. Once a court decides that one of the requisite showings has not been made, it need not decide whether the other one has been. Id. at 697; Duren v. Hopper, 161 F.3d 655, 660 (11th Cir. 1998).
A criminal defendant's right to effective assistance of counsel continues through direct appeal. See Evitts v. Lucey, 469 U.S. 387, 396 (1985). Ineffective assistance of appellate counsel may be shown if the movant can "establish... that counsel omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker.... Generally, only when ignored issues are clearly stronger than those presented, will the presumption of effective assistance of counsel be overcome." Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994).
The Supreme Court has held a criminal defendant's appellate counsel is not required to raise all nonfrivolous issues on appeal. Jones v. Barnes, 463 U.S. 745, 751-54 (1983). The Court noted, "[e]xperienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues." Id. at 751-52. Therefore, it is difficult for a defendant to show his counsel was ineffective for failing to raise certain issues on appeal, particularly if counsel presented other strong issues. Smith v. Robbins, 528 U.S. 259, 287-88 (2000).
1. Claims Against Trial Counsel
(a) "Agreement with Government" regarding ...