United States District Court, S.D. Alabama, Southern Division
BRETT W. BRANCH, (#XXXXX-XXX), Petitioner,
UNITED STATES OF AMERICA, Respondent. Criminal No. 08-00327-CG
CALLIE V.S. GRANADE, District Judge.
Pending before the Court is Brett W. Branch's Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 and supporting memorandum (Docs. 907, 913), the Government's response in opposition thereto (Doc. 914), and Branch's reply (Doc 916). Having carefully reviewed the record, the Court finds that Branch's Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (Doc. 907) is due to be DENIED, that this action is due to be DISMISSED, and that Branch is not entitled to a certificate of appealability, and consequently, is not entitled to appeal in forma pauperis. 
On December 30, 2008, Branch and eleven co-defendants were charged in a 198-count superseding indictment (Doc. 4). After nearly a month-long trial, the jury found Branch guilty of 46 separate counts: count 1: conspiracy to illegally dispense and distribute anabolic steroids, counts 2-37: illegally distributing anabolic steroids, counts 88-95: illegally distributing anabolic steroids to a person under the age of 21, and count 96: money laundering. (Docs. 625, 634). Branch's sentencing was scheduled for July 7, 2010. (Doc. 634). At the joint request of the parties, the Court rescheduled Branch's sentencing for November 3, 2010. (Doc. 726; see also Notice of Hearing between Docs. 834 and 835).
Prior to the sentencing hearing, the United States Probation office prepared a Presentence Investigation Report (hereinafter "PSR") using the 2009 edition of the United States Sentencing Guidelines. (Doc. 804). In the PSR, Branch's base offense level was determined to be 21, based on the total quantity of anabolic steroids attributable to Branch. (Doc. 804 at 35-36, ¶ 122). Branch was assessed a four-level enhancement for his role as an organizer/leader in the offense, which involved five or more people, and a two-level enhancement for obstruction of justice pursuant to U.S.S.G. § 3C1.1 because Branch testified falsely at trial. ( Id., at 36, ¶¶ 125, 126). Branch's total offense level was calculated at 27 with a criminal history category of I, which resulted in a guideline range of 70 to 87 months. ( Id., at 36-37, 43, ¶¶ 131, 134, 161).
Prior to sentencing, Branch objected to the four-level enhancement for his role as an organizer/leader and to the two-level enhancement assessed for obstruction of justice based on Branch's contention that his testimony "was substantially true." (Doc. 829). Upon consideration of Branch's objections, Probation responded that based on the testimony presented at trial, Branch was more culpable than most of the other five parties because Branch "directed the actions", "actively recruited others", and "received a large share of the fruits of the crime". (Doc. 836 at 1, ¶ 1). Probation further responded that pursuant to Note 4 of the U.S.S.G. § 3C1.1, a two-level enhancement for obstruction of justice was justified if the Court finds that Branch's trial testimony was false. ( Id., at 1, ¶ 2). At sentencing, the Court adopted the PSR. (Doc. 848 at 1). In doing so, the Court found that Branch was properly assessed both enhancements and sentenced Branch to 87 months imprisonment, which consisted of 60 months as to each of counts 1 through 37 and 87 months as to each of counts 88 through 96, all terms to run concurrently. (Doc. 847). Branch was also assessed a $100 special assessment fee on each of the counts for a sum on $4600. (Id.). Branch did not appeal his conviction or sentence.
On October 18, 2011, , Branch filed the instant petition seeking habeas relief citing four claims of ineffective assistance of counsel based on his counsel's 1) failure to file a motion to sever and to seek a separate trial or plea, (which Branch contends also led to his false statement enhancement), 2) failure to object to four-level leadership enhancement, 3) failure to challenge the number of units of steroids attributed to him, and 4) failure to "make it clear to the Court or to the jury [Branch's] involvement in this alleged conspiracy." (Doc. 907 at 4-5; Doc. 913 at 10). Branch argues that but for his counsel's ineffectiveness, "the two point enhancement for obstruction of justice and the four points for leader/organizer would not have stood after challenge." (Doc. 913 at 10).
The Government responded that Branch's claims are "due to be denied as either improperly pled, factually false, procedurally defaulted, or for lack of prejudice." (Doc. 914 at 1). Specifically, the Government contends that Branch's challenges to his sentencing factors, including the obstruction of justice enhancement, the leadership enhancement, and the number of units of steroids attributed to him, and his challenge to the sufficiency of the evidence to sustain the jury's conspiracy conviction are all procedurally barred because Branch failed to raise these claims on direct appeal. ( Id., at 7-8). The Government further contends that Branch failed to prove either prong of the Strickland test in his ineffective assistance of counsel claims. ( Id., at 10-14). Finally, the Government contends that Branch's claims concerning his counsel's failure to challenge his role as a leader/organizer in the conspiracy and his membership in the conspiracy are factually false, as Branch's counsel zealously advocated for Branch at trial and filed objections to the PSR challenging Branch's designation as a leader/organizer. ( Id., at 11-12, 14).
In Branch's reply, he outlines, in detail, his calculations concerning the number of units of steroids that should have been attributed to him and asserts that his counsel was ineffective when he failed to double check the Government's calculations as outlined in the chart presented at trial. (Doc. 916). He further reiterates that the obstruction of justice enhancement is unsubstantiated because he "told the truth as he knew it to be." ( Id., at 2). Finally, Branch contends that although he failed to file a direct appeal his claims are properly before this Court on collateral review.
a. Standard for Ineffective Assistance of Counsel Claims
In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme Court established a two-prong test for adjudicating ineffective assistance of counsel claims. "A defendant claiming ineffective assistance of counsel in violation of the Sixth Amendment must demonstrate that: (1) counsel's performance was deficient, and (2) the deficient performance prejudiced the outcome of the proceedings." Windom v. Secretary, Dep't of Corrs., 578 F.3d 1227, 1248 (11th Cir. 2009) (citing Strickland, 466 U.S. at 687). Because the failure to demonstrate either deficient performance or prejudice is dispositive of the claim, courts applying the Strickland test "are free to dispose of ineffectiveness claims on either of [Strickland's] two grounds." Oats v. Singletary, 141 F.3d 1018, 1023 (11th Cir. 1998). "[U]nder the exacting rules and presumptions set forth in Strickland, the cases in which habeas petitioners can properly prevail on the ground of ineffective assistance of counsel are few and far between.'" Windom, 578 F.3d at 1248 (citations omitted).
In order to satisfy the "performance" prong of the Strickland test, a petitioner is required to show that his attorney's representation "fell below an objective standard of reasonableness, " which is measured by "reasonableness under prevailing professional norms." Id., 466 U.S. at 688. That is, a petitioner must show that "counsel made errors so serious that counsel was not functioning as the counsel' guaranteed the defendant by the Sixth Amendment." Id., 466 U.S. at 687. In considering such a claim, the court "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).
In addition, a petitioner must also satisfy the "prejudice" prong of the Strickland test. To that end, Petitioner must show that a reasonable probability exists that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Id., 466 U.S. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id . Petitioner "must affirmatively prove prejudice because [a]ttorney errors come in an infinite variety and are as likely to be utterly harmless in a particular case as they are to be prejudicial.'" Butcher v. United States, 368 F.3d 1290, 1293 (11th Cir. 2004) (citations omitted). "[T]hat the errors had some conceivable ...