United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATION
KATHERINE P. NELSON, Magistrate Judge.
Petitioner Alfred Maurice Blakely,  a federal prison inmate proceeding in forma pauperis, has filed a timely motion to vacate, set aside, or correct his sentence, and brief in support, pursuant to 28 U.S.C. § 2255 (Doc. 76). The United States has filed a response in opposition (Doc. 78). And Blakely has replied. (Doc. 79.) This action is now before the undersigned United States Magistrate Judge for entry of a report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B) and Rule 8(b) of the Rules Governing Section 2255 Proceedings. For the reasons explained herein, it is RECOMMENDED that Blakely's § 2255 petition be DENIED and that the Court find he is not entitled to a certificate of appealability and therefore is not entitled to appeal in forma pauperis.
I. Underlying Criminal Case
A three-count indictment was returned against Blakely in June 2010. The indictment contained one count of possession with intent to distribute approximately 29 grams of cocaine, in violation of 21 U.S.C. § 841(a)(1) (Count 1); one count of possession with intent to distribute 15 grams of crack cocaine, in violation of § 841(a)(1) (Count 2); and one count of possession of a firearm in furtherance of a drug trafficking crime, in violation of § 924(c)(1). ( See Doc. 1.) In July 2010, Blakely was arrested, arraigned, and detained ( see Docs. 3, 4, 7-10), and Andrew Jones, a member of the Court's Criminal Justice Act (CJA) Panel was appointed to represent Blakely in this Court ( see Doc. 6). Mr. Jones filed a motion to suppress (Doc. 13; see also Doc. 19 (amended motion)), which was argued before- and denied by-the Court on August 10, 2010 ( see Doc. 21).
In October 2010, following a brief jury trial presided over by United States Judge Callie V. S. Granade, Blakely was convicted on all counts. ( See Docs. 41, 43, 66, and 68.) On January 13, 2011, Blakely was sentenced to 120 months (60 months each as to the first two counts, to be served concurrently; and 60 months as to Count 3, to be served consecutively to the terms imposed as to Counts 1 and 2). ( See Doc. 53.) Blakely appealed to the Eleventh Circuit, which affirmed his sentence. (Doc. 73.) See also United States v. Blackely, 439 Fed.App'x 803 (11th Cir. Aug. 29, 2013) (per curiam).
II. Collateral Attack
Through his § 2255 petition, Blakely alleges he was deprived of "the effective assistance of counsel guaranteed by the Sixth Amendment." Strickland v. Washington, 466 U.S. 668, 706 (1984) (Brennan, J., concurring).
A. Ineffectiveness Standard
To establish his claims of ineffective assistance of counsel, Blakely is required to show both that his counsel's conduct fell below "an objective standard of reasonableness"-the "performance prong"- and that a reasonable probability exists that but for counsel's unprofessional conduct, the result of the proceeding would have been different-the "prejudice prong." See generally Strickland v. Washington, 466 U.S. 668 (1984). He "bears the burden of proof" as to both prongs-"both prongs must be proved to prevail." Johnson v. Alabama, 256 F.3d 1156, 1176 (11th Cir. 2001), cert. denied sub nom. Johnson v. Nagle, 535 U.S. 926 (2002); accord Cooper v. Secretary, Dep't of Corr., 646 F.3d 1328, 1351 (11th Cir. 2011).
To succeed on the performance prong, Blakely "must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687. "When analyzing ineffective-assistance claims, reviewing courts must indulge a strong presumption that counsel's conduct fell within the wide range of reasonably professional assistance." Smith v. Singletary, 170 F.3d 1051, 1053 (11th Cir. 1999) (citations omitted); accord Michael v. Crosby, 430 F.3d 1310, 1320 (11th Cir. 2005). That "presumption of reasonableness is even stronger when we are reviewing the performance of an experienced trial counsel." Callahan v. Campbell, 427 F.3d 897, 933 (11th Cir. 2005). As the Supreme Court has more recently explained,
"[s]urmounting Strickland 's high bar is never an easy task." Padilla v. Kentucky, 559 U.S. 356, 371 (2010). An ineffective-assistance claim can function as a way to escape rules of waiver and forfeiture and raise issues not presented at trial, and so the Strickland standard must be applied with scrupulous care, lest "intrusive post-trial inquiry" threaten the integrity of the very adversary process the right to counsel is meant to serve. Strickland, 466 U.S. at 689-90. Even under de novo review, the standard for judging counsel's representation is a most deferential one. Unlike a later reviewing court, the attorney observed the relevant proceedings, knew of materials outside the record, and interacted with the client, with opposing counsel, and with the judge. It is "all too tempting" to "second-guess counsel's assistance after conviction or adverse sentence." Id. at 689. The question is whether an attorney's representation amounted to incompetence under "prevailing professional norms, " not whether it deviated from best practices or most common custom. Id. at 690.
Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 788 (2011) (some internal citations modified or omitted); see also Pair v. Cummins, 373 Fed.App'x 979, 981-82 (11th Cir. Apr. 20, 2010) (per curiam) ("The performance prong[s]... standard is that of a reasonable attorney, not a paragon of the bar' or an Aristotle' or a Clarence Darrow.'" (quoting Dill v. Allen, 488 F.3d 1344, 1354 (11th Cir. 2007); Yarborough v. Gentry, 540 U.S. 1, 11 (2003))); Gonzalez v. United States, Nos. 09-22386-Cv-JORDAN; 07-20759-Cr-JORDAN, 2010 WL 2367356, at *5 (S.D. Fla. Apr. 21, 2010) ("The court's role in reviewing ineffective assistance of counsel claims is not to grade a lawyer's performance; instead, [the court] determine[s] only whether a lawyer's performance was within wide range of professionally competent assistance.'" (quoting Van Poyck v. Florida Dep't of Corr., 290 F.3d 1318, 1322 (11th Cir. 2002))), report and recommendation adopted, 2010 WL 2366531 (S.D. Fla. June 14, 2010).
The test for deficiency, moreover, "is not whether counsel could have done more; perfection is not required. Nor is the test whether the best criminal defense attorneys might have done more." Waters v. Thomas, 46 F.3d 1506, 1518 (11th Cir. 1995) ( en banc ). Rather, the inquiry under Strickland is limited to "whether some reasonable lawyer could have acted, in the circumstances, as defense counsel acted...." Conklin v. Schoefield, 366 F.3d 1191, 1204 (11th Cir. 2004) (quoting Waters, 46 F.3d at 1518); see also Moreno v. United States, Criminal No. 1:06-CR-461-CC-GGB; Civil Action No. 1:10-CV-0164-CC-GGB, 2012 WL 7829200, at *4 (N.D.Ga. Mar. 13, 2012) ("The test [for deficiency] has nothing to do with what the best lawyers would have done. Nor is the test even what most good lawyers would have done. We ask only whether some reasonable lawyer... could have acted, in the circumstances, as defense counsel acted...." (quoting White v. Singletary, 972 F.2d 1218, 1220 (11th Cir. 1992))), report and recommendation adopted, 2013 WL 1339718 (N.D.Ga. Apr. 1, 2013); id. ("[P]etitioner must demonstrate that no competent counsel would have taken the action that his counsel did take.'" (quoting United States v. Freixas, 332 F.3d 1314, 1319-20 (11th Cir. 2003))).
And, in order to avoid "the distorting effects of hindsight, " a habeas court must "evaluate the reasonableness from counsel's perspective at the time of the alleged error in light of all circumstances of the case." Griffin v. United States, 204 Fed App'x 792, 794-95 (11th Cir. Oct. 25, 2006) (per curiam) (citing Strickland, 466 U.S. at 690). Likewise, "[t]actical decisions regarding trial strategy are left to the sound judgment of counsel and are entitled to a strong presumption' of competence." Kearney v. United States, Nos. 2:04-CR-15-1-BO; 2:09-CV-55-BO, 2010 WL 2402887, at *2 (E.D. N.C. June 14, 2010) (quoting Strickland, 466 U.S. at 689, and citing Bell v. Cone, 535 U.S. 685, 698 (2002)). For a petition challenging chosen trial strategies to be successful, therefore, it must not be "devoid of the factual basis that is required to show that counsel's tactics were manifestly unreasonable." Id.
In addition, to succeed on an ineffective assistance claim, Blakely "must affirmatively prove prejudice[.]" Butcher v. United States, 368 F.3d 1290, 1294 (11th Cir. 2004). And "that the errors had some conceivable effect on the outcome of the proceeding" is not sufficient proof of prejudice. Gilreath v. Head, 234 F.3d 547, 551 (11th Cir. 2000) (alteration in original) (quoting Strickland, 466 U.S. at 693); see also Evans v. Secretary, Fla. Dep't of Corr., 699 F.3d 1249, 1270 (11th Cir. 2012) (under Strickland, "a court making the prejudice inquiry must ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors, " and that "[t]he likelihood of a different result must be substantial, not just conceivable" (citations omitted)).
Finally, when applying the Strickland standard, it is clear that courts "are free to dispose of ineffectiveness claims on either of its two grounds." Oats v. Singletary, 141 F.3d 1018, 1023 (11th Cir. 1998) (citation omitted), cert. denied sub nom. Oats v. Moore, 527 U.S. 1008 (1999); see also Butcher, 368 F.3d at 1293 ("[O]nce a court decides that one of the requisite showings has not been made it need not decide whether the other one has been.").
B. IAC Claims
The undersigned will address Blakely's four grounds for ineffective ...