United States District Court, S.D. Alabama, Southern Division
January 14, 2015
TASHA MICHELLE BLACKBURN, Petitioner,
UNITED STATES OF AMERICA, Respondent Criminal No. 08-00256-WS-B
Tasha Michelle Blackburn, Petitioner (1:11-cv-00727-WS-B), Pro se, TALLAHASSEE, FL.
For Tasha Michelle Blackburn, Defendant (1:08-cr-00256-WS-B All Defendants): Neil L. Hanley, LEAD ATTORNEY, Mobile, AL.
For USA, Plaintiff (1:08-cr-00256-WS-B All Defendants): Gloria A. Bedwell, Richard H. Loftin, Steven E. Butler, LEAD ATTORNEYS, Adam Wayne Overstreet, U.S. Attorney's Office, Mobile, AL.
REPORT AND RECOMMENDATION
SONJA F. BIVINS, UNITED STATES MAGISTRATE JUDGE.
This matter is before the Court on Petitioner Tasha Michelle Blackburn's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. (Doc. 195). In her motion, Blackburn raises a number of claims of ineffective assistance of counsel by her trial and appellate counsel. Upon review of Blackburn's petition and supporting memorandums and documents (Docs. 195, 201, 214), and the United States responses in opposition (Docs. 198, 211), the undersigned determined that an evidentiary hearing was required to resolve Blackburn's claim that her former trial counsel failed to communicate to her a favorable plea offer that had been extended by the Government. Counsel was appointed to represent Blackburn for the evidentiary hearing, which was conducted before the undersigned Magistrate Judge on July 8, 2014. Based upon the evidence presented at the hearing and upon consideration of Blackburn's petition, supporting memorandums and documents, the United States responses in opposition, and all other pertinent portions of the record, it is recommended that Blackburn's petition be DENIED.
A federal grand jury returned an indictment against Blackburn and her co-Defendant Barry Jay Sullivan in July 2008. (Doc. 1). Blackburn was charged in count one of the indictment with conspiring to distribute 50 grams or more of methamphetamine, in violation of 21 U.S.C. § 846, and in count two, she was charged with possession of pseudoephedrine with knowledge that it would be used to manufacture a controlled substance, in violation of 21 U.S.C. § 841(c)(2). (Id.). The Court initially appointed Fred Tiemann, an assistant federal defender, to represent Blackburn; however, Tiemann requested permission to withdraw on the ground that a colleague in his office was representing an individual who was expected to provide testimony against Blackburn. (Docs. 16, 46). As a result, Tiemann was permitted to withdraw and Paul Murray was appointed to represent Blackburn on September 28, 2008. (Doc. 49). Less than a month later, on October 16, 2008, Murray filed a motion to withdraw on the ground that Blackburn had retained Thomas Haas to represent her. (Doc. 62). Murray's motion was granted and Haas assumed representation of Blackburn. Following a jury trial, Blackburn was convicted of conspiring to distribute 50 grams or more of methamphetamine, and on August 3, 2009, she was sentenced to 300 months in prison. (Doc. 143). Haas requested and was granted permission to withdraw and Gregory Hughes was appointed to represent Blackburn on appeal. (Docs. 173, 175).
On appeal, Blackburn argued that the trial court erred by denying her motion to suppress evidence seized from her bedroom, and by permitting a police officer, Jeffrey Stone, " to provide his opinions regarding the significance of certain items - a gas torch, digital scales, crystal methamphetamine and a piece of paper with the figure '1700' written on it - that were seized from the bedroom shared by Blackburn and her boyfriend and co-defendant Sullivan. The Eleventh Circuit rejected both of Blackburn's claims, and affirmed her conviction and sentence in an unpublished opinion and judgment that was entered on September 30, 2010. (Doc. 190).
With respect to Blackburn's claim regarding officer Jeffrey Stone, the appellate court held that although Stone's testimony was expert in nature, " the [district] court did not abuse its discretion in denying Blackburn and [her co-defendant's] motions to strike [Stone's] testimony on the ground that it invaded the province of the jury, or amounted to improper speculation."  (Id. at 32). The Eleventh Circuit's mandate issued on November 9, 2010. (Doc. 190). Blackburn did not seek further review by the Supreme Court.
Proceeding pro se, Blackburn timely filed the instant petition on December 8, 2011. (Doc. 195). Blackburn seeks to have her conviction and sentence set aside on the grounds of ineffective assistance rendered by Brad Murray, her former trial counsel, Tom Haas, her trial counsel, and Greg Hughes, her counsel on appeal. Blackburn's ineffective assistance claims are based on the following grounds:
1) her trial counsel was " wholly unprepared for trial (Doc. 195 at 4);
2) her trial counsel " failed to properly preserve objections in the suppression hearing" (Id.);
3) her trial counsel " failed to investigate defense claims raised by his client" (Id.);
4) her trial counsel " failed to locate potential witnesses" (Id.);
5) her trial counsel had no " defense plan in place" (Id.);
6) her trial counsel failed to object that Officer Stone " was offering expert testimony without the required 'expertise'" (Id.);
7) With the exception of the motion to suppress, her trial counsel " failed to file any pretrial motions" (Id.);
8) her trial counsel failed to file " proper objections to the presentence report (Doc. 195 at 4, 10);
9) her trial counsel " failed to investigate defenses raised by his client (Id. at 9);
10) her trial counsel failed " to present character witnesses at penalty phase" (Id.);
11) her trial counsel failed to " properly cross-examine relevant witness testimony" (Id.);
12) her trial counsel " offered no relevant objection to items considered Crawford material" (Id.);
13) her trial counsel " failed to effectively communicate to his client the multiple options available to her" through pleading guilty (Id. at 10);
14) her trial counsel failed to file a motion for bifurcation from her co-defendant (Id. at 11);
15) her former trial counsel failed to communicate to her a proposed plea agreement that was offered by the Government, and that was favorable to her (Id. at 10);
16) her appellate counsel abandoned multiple claims on appeal. (Id. at 4)
In the Government's response to Blackburn's petition, the Government argues that Blackburn's claims of ineffective assistance of trial and appellate counsel are vague and generalized, and that she does not even attempt to prove how she was prejudiced by the asserted transgressions of her trial nor appellate counsel. The Government contends that on the one hand, Blackburn complains that her " [c]ounsel continually encouraged [her]to enter a guilty plea . . . [y]et, on the other hand, she complains that she was not informed of the 'multiple options available to' her." (Doc. 198 at 6).
II. STANDARDS OF REVIEW
Courts and the public can presume that a defendant stands fairly and finally convicted after conviction and exhaustion or waiver of any right to appeal. See United States v Frady, 456 U.S. 152, 164, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). However, 28 U.S.C. § 2255 provides a vehicle by which federal defendants in custody may attack the validity of their sentences. A defendant seeking relief under § 2255 must prove: (1) the sentence violated the Constitution or laws of the United States; (2) the court lacked jurisdiction to impose the sentence; (3) the sentence imposed exceeded the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255. Such collateral relief is an extraordinary remedy which " may not do service for a  [direct] appeal."
Frady, 456 U.S. at 165. Consequently, " [i]f issues are raised and considered on direct appeal, a defendant is thereafter precluded from urging the same issues in a later collateral attack . . . A defendant is, of course, entitled to a hearing of his claims, but not to duplicate hearings. The appellate process does not permit reruns." Moore v. United States, 598 F.2d 439, 441 (5th Cir. 1979).
To prove ineffective assistance of counsel, petitioners must satisfy the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) which requires a petitioner to show (1) " that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment[, ] meaning that counsel's representation fell below an objective standard of reasonableness, " Id. at 687-88, and (2) that counsel's deficient performance prejudiced the petitioner by demonstrating a " reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. " A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. Strickland established a " strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. " Judicial scrutiny of counsel's performance must be highly deferential" and " every effort [must] be made to eliminate the distorting effects of hindsight . . . and to evaluate the [challenged] conduct from counsel's perspective at the time."
Id., see also Payne v. United States, 566 F.3d 1276, 1277 (11th Cir. 2009)(" a court must avoid 'the distorting effects of hindsight' and must 'evaluate the conduct from counsel's perspective at the time'"). The Eleventh Circuit has observed with respect to § 2255 petitioners' exacting burden, " the cases in which habeas petitioners can properly prevail . . . are few and far between." Waters v. Thomas, 46 F.3d 1506, 1511 (11th Cir. 1995)(en banc).
A. Plea Offer
As noted supra, Blackburn has alleged numerous instances in which her attorneys provided ineffective assistance of counsel. Turning first to Blackburn's contention that her former trial counsel, Paul Murray, failed to communicate a favorable plea offer to her, the undersigned notes that an evidentiary hearing was conducted on July 8, 2014 to resolve this claim. Blackburn was appointed counsel and she testified at the hearing. (Docs. 215, 220). Also testifying at the hearing was Blackburn's former trial attorney, Paul Murray. Blackburn testified that after Fred Tiemann, her initial attorney, was permitted to withdraw from her case due to a conflict, Murray advised her that he had been appointed to represent her, and he met with her on two occasions while she was in a local residential drug treatment facility. According to Blackburn, only she and Murray were present during her initial meeting with Murray. At the meeting, Murray showed her a lot of documents and went over the evidence with her. Blackburn testified that the plea agreement may have been in the documents, but she was in the early phases of drug treatment and was a " mess."  She also testified that Murray did not discuss the pros and cons of accepting the plea agreement with her, and that he kept saying that he had just gotten into the case, and that he needed more time. Blackburn further testified that she did not have a chance to read the plea agreement until 2012 after she was sentenced, when her family assisted her in securing a copy of the agreement from Murray's office.
Blackburn testified that during her second meeting with Murray, he showed up at the treatment center unannounced and he kept trying to get her to sign a speedy trial waiver. According to Blackburn, her treatment counselor was present at the meeting and was upset because Murray had showed up unannounced in violation of the treatment center rules. Blackburn testified that Murray was adamant that she needed to sign a speedy trial waiver and that during the meeting, her counselor picked up the telephone, and called another attorney, Tom Haas. According to Blackburn, Haas advised her not to sign the waiver, and also told her that he would call her father to make payment arrangements so that he could represent her. Blackburn testified that if she had been informed of the plea offer back in 2008, she would have accepted the plea offer, would have cooperated, and would have received a sentence that was substantially shorter than the 300 months that she received following her trial.
As noted, Murray, who is experienced in handling criminal matters in federal court and has served on the Criminal Justice Act panel of attorneys in this district for over twenty years, also testified at the hearing. Murray testified and presented corroborating billing records that reflect that shortly after being appointed to represent Blackburn, he traveled to the treatment center to meet with her on October 8, 2008 and October 10, 2008. (Doc. 233-7). According to Murray, he had received a written plea agreement from the Government prior to his first meeting with Blackburn, and during the initial meeting with her, he went over the discovery with her, as well as the plea agreement. (Doc. 233-1). Murray testified without contradiction that while he discussed with Blackburn the pros and cons of accepting the plea agreement and the sentencing guidelines, he did not make a recommendation to her at that time because he was still going through the discovery and familiarizing himself with the facts of the case. According to Murray, he was too new to the case to recommend that Blackburn take a plea agreement. Murray testified that not only was Blackburn adamant that she was not going to plead guilty, but after the meeting, Blackburn's father called him, and said that he understood Murray was trying to force Blackburn to plead guilty, and that she was not going to do so. Murray stated that he explained to Blackburn's father that he was not trying to get her to enter a guilty plea, but was instead trying to get her to think about her options.
Murray testified that during his second meeting with Blackburn, her counselor was present, and she made clear to him that Blackburn needed a lawyer who would not force her to enter a guilty plea, but would instead take her case to trial. Murray stated that in his presence, the counselor telephoned another attorney, Tom Haas, and discussed with Haas representing Blackburn. Murray stated that he explained that he was planning to seek a continuance since he had just recently been appointed to the case and that he needed Blackburn to execute a speedy trial waiver so that they would have more time to become familiar with the case. According to Murray, Haas advised Blackburn not to sign the waiver, and told her that he would contact her father about making payment arrangements. Murray testified that since Blackburn had opted to have Haas represent her, he requested permission to withdraw.
In Missouri v. Frye, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012), and Lafler v. Cooper, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012), the Supreme Court clarified that the Sixth Amendment right to effective assistance of counsel under Strickland extends to the negotiation and consideration of plea offers that lapse or are rejected. See
Frye, 132 S.Ct. at 1404-08; see also Lafler, 132 S.Ct. at 1384. The Court held that counsel has a " duty to communicate formal offers from the prosecution to accept a plea, " and that, in general, where such an offer is not communicated to the defendant, counsel " [does] not render the effective assistance the Constitution requires."
Frye, 132 S.Ct. at 1408. The Court also held that, in order to show prejudice under Strickland's two-part test, a defendant must demonstrate a reasonable probability that: (1) she would have accepted a plea offer but for counsel's ineffective assistance; and (2) the plea would have resulted in a lesser charge or a lower sentence.
Frye, 132 S.Ct. at 1409; see also Lafler, 132 S.Ct. at 1391 (concluding that the defendant had met those two requirements).
Based on the record before the court, including evidence gleaned during the evidentiary hearing, the undersigned finds that Blackburn has failed to establish that Murray failed to communicate the plea offer to her and has further failed to establish that she would have accepted the offer. During the hearing, Murray provided credible testimony that during the short period that he represented Blackburn, he provided her with a copy of the Government's written plea offer, and discussed the offer with her, including the pros and cons of accepting the offer. He also testified that he did not make a recommendation to Blackburn because he was new to the case, and was still attempting to familiarize himself with the facts and the evidence when Blackburn and her family opted to retain counsel for her because of their belief that he was attempting to coerce her to enter into a guilty plea. While Murray provided straightforward testimony, along with corroborating billing records, Blackburn's testimony was inconsistent and not plausible. On direct examination, Blackburn testified that Murray did not show the plea agreement to her, but on cross-examination, Blackburn acknowledged that the plea agreement could have been in some of the paperwork that Murray showed her at their initial meeting, and that she was very preoccupied with completing the drug treatment program; thus, she could not recall everything that Murray discussed with her. Additionally, Blackburn never denied Murray's assertion that although she had been provided court appointed counsel, she and her family retained new counsel because they believed that Murray was attempting to force her to enter a guilty plea.
Moreover, aside from Blackburn's self-serving assertions, she offered no evidence that she would have accepted the plea offer. In fact, these self-serving assertions are clearly belied by her habeas petition wherein she expressly asserts that her trial counsel " continually encouraged the Petitioner to enter a guilty plea." (Doc. 195 at 13). Moreover, the evidence reflects that throughout the proceedings, Blackburn took the position that she was a drug user, and was not a part of the drug conspiracy as charged. In fact, at her sentencing, Judge Steele observed that throughout the proceedings, Blackburn refused to cooperate and take responsibility for her actions, and indeed, persisted in downplaying her role in the drug conspiracy. (Doc. 184-4 at 34). Accordingly, based on the record before the Court, the undersigned finds that Blackburn's claim that Murray provided ineffective assistance of counsel with regard to the plea offer is due to be denied.
B. Other Ineffective Assistance of Counsel Claims
Blackburn's other ineffective assistance of counsel claims are also due to be denied. The other ineffective assistance of counsel claims raised by Blackburn nearly mirror those that were raised by her co-defendant, Barry Jay Sullivan, in his habeas petition, and rejected by the Court as lacking in merit. See United States v. Sullivan, (S.D. Ala. Feb. 26, 2014), adopted by Sullivan v. United States, (S.D. Ala. May 12, 2014). As noted supra, in order for Blackburn to establish ineffective assistance of counsel, she " must show that h[er] attorney's performance was deficient and that the deficiency was prejudicial." Cross v. United States, 893 F.2d 1287, 1290 (11th Cir. 1990). However, " [c]onclusory allegations of ineffective assistance are insufficient." Wilson v. United States, 962 F.2d 996, 998 (11th Cir. 1992), quoting United States v. Lawson, 947 F.2d 849, 853 (7th Cir. 1991). With respect to her remaining claims, Blackburn has neither shown that her counsel's performance was deficient nor has she shown that she was in any manner prejudiced by the alleged deficiency. Aside from her conclusory assertions, Blackburn has not set forth any factual basis for her contention that counsel was ineffective. For example, although she contends that her trial counsel failed to " preserve objections in the suppression hearing, " she does not identify the objections she alleges were abandoned. (Doc. 195 at 4). Also, while Blackburn contends that her trial counsel failed to locate " potential witnesses, " she does not identify the " potential witnesses, " nor does she include a summary of the testimony they would have likely provided. (Id.). Further, while Blackburn contends that her counsel failed to investigate " defense claims raised by his client, " (id. at 4), she does not detail the alleged defenses nor provide any information that suggests that they were at all plausible.
Blackburn further argues that her trial counsel failed to raise proper objection to the presentence report and failed to seek a bifurcation of her case from that of her co-defendant. (Id. at 4, 11). However, Blackburn does not specify the manner in which her presentence report was incorrect nor does she set forth any facts that would warrant bifurcation. Blackburn also contends that her trial counsel " offered no relevant objection to various items considered Crawford material during the course of the trial and sentencing, " but she fails to identify what " material" she is referring to or show the grounds on which it may be declared objectionable. (Id. at 9).
Moreover, while Blackburn contends that her trial counsel failed to raise the issue of whether Officer Stone possessed the required expertise, the record reflects that her trial counsel did in fact object to Officer Stone's testimony during trial. (Doc. 180 at 37, 38, 41, 42, 43, 48, 49, 50-54, 56-59, 66). Also, on appeal, the Eleventh Circuit addressed Officer Stone's testimony, and held that although Officer Stone's testimony was expert in nature, " the [district] court did not abuse its discretion in denying Blackburn's and Sullivan's motions to strike [Stone's] testimony on the ground that it invaded the province of the jury, or amounted to improper speculation." (Doc. 190 at 32). " Under the 'law of the case' doctrine, the 'findings of fact and conclusions of law by an appellate court are generally binding in all subsequent proceedings in the same case in the trial court or on a later appeal.'" Heathcoat v. Potts, 905 F.2d 367, 370 (11th Cir. 1990)( quoting Westbrook v. Zant, 743 F.2d 764, 768 (11th Cir. 1984)( quoting Dorsey v. Continental Casualty Co., 730 F.2d 675, 678 (11th Cir. 1984)). " The doctrine operates to preclude courts from revisiting issues that were decided explicitly or by necessary implication in a prior appeal." Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1289, 1291 (11th Cir. 2005). In light of the Eleventh Circuit's finding, it is clear that even if Blackburn's counsel had failed to object to Officer Stone's testimony, an allegation not borne out by the record, such conduct would not have constituted ineffective assistance of counsel as the law is clear that " failure to raise nonmeritorious issues does not constitute ineffective assistance of counsel." Bolender v. Singletary, 16 F.3d 1547, 1573 (11th Cir. 1994).
Finally, Blackburn contends that her counsel was ineffective because he did not adhere to her request that he file a petition for " writ of habeas corpus" to the United States Supreme Court and did not explain why he refused to do so." (Doc. 195 at 5). The Government asserts that because " certiorari review is discretionary, and there is no legal right to it . . . there is no right to effective assistance of counsel on discretionary review." (Doc. 198 at 9). The Government is correct that the right to effective assistance of counsel is dependent on the right to counsel itself.
Evitts v. Lucey, 469 U.S. 387, 397 n.7, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985)( citing Wainwright v. Torna, 455 U.S. 586, 587-88, 102 S.Ct. 1300, 71 L.Ed.2d 475 (1982). In an unpublished opinion, the Eleventh Circuit held that, " [a defendant's] appellate attorney cannot be deemed to have acted ineffectively for failing to file a petition for a writ of certiorari because there is no right under the Sixth Amendment to counsel to pursue a discretionary application for review in the Supreme Court."
Richards v. United States, 406 F.App'x 447, 447 (11th Cir. 2010). Given that certiorari is discretionary, and Blackburn had no right to counsel at that stage, her ineffective assistance of counsel claim related to her certiorari claim is without merit. However, even if Blackburn had a right to counsel at that stage, she failed to allege or demonstrate that the writ would have issued but for her counsel's conduct. Accordingly, this claim likewise fails.
IV. CERTIFICATE OF APPEALABILITY
Pursuant to Rule 11(a) of the Rules Governing § 2255 Proceedings, the undersigned recommends that no certificate of appealability should be issued in this case. 28 U.S.C. foll. § 2255, Rule 11(a) (" The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant."). The habeas corpus statute makes clear that an applicant is entitled to appeal a district court's denial of his habeas corpus petition only where a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1). A certificate of appealability may issue only where " the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). Where a habeas petition is being denied on procedural grounds without reaching the merits of an underlying constitutional claim, " a COA should issue [only] when the prisoner shows . . . that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).
No Certificate of Appealability is warranted in this case. For the reasons discussed above, no reasonable jurist could conclude that this Court is in error in dismissing Blackburn's petition or that she should be allowed to proceed further. See Slack, 529 U.S. at 484 (" Where a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further."). It is thus recommended that the Court deny any request for a Certificate of Appealability.
For the foregoing reasons, it is recommended that Blackburn's Motion to Vacate, Set Aside, or Correct Sentence (Doc. 195) be DENIED, that this action be dismissed, and that judgment be entered in favor of Respondent, the United States of America, and against Petitioner, Tasha Michelle Blackburn. The undersigned Magistrate Judge further opines that Blackburn is not entitled to issuance of a Certificate of Appealability, and as a result, she should not be permitted to appeal in forma pauperis.
Notice of Right to File Objections
A copy of this report and recommendation shall be served on all parties in the manner provided by law. Any party who objects to this recommendation or anything in it must, within fourteen (14) days of the date of service of this document, file specific written objections with the Clerk of this Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); S.D. ALA. L.R. 72.4. In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the Magistrate Judge's report and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the Magistrate Judge is not specific.