United States District Court, S.D. Alabama, Northern Division
KATHERINE P. NELSON, Magistrate Judge.
Daniel Louis McReynolds, originally proceeding pro se, has petitioned this Court for federal habeas corpus relief pursuant to 28 U.S.C. § 2255 in his Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Doc. 220). In the course of reviewing the pleadings, it was determined that an evidentiary hearing was necessary, and hearing was conducted by the undersigned United States Magistrate Judge on February 26, 2015. Present at the hearing were McReynolds; William Scully, Jr., Esq., a member of this Court's CJA panel and appointed counsel for McReynolds; and Special Assistant U.S. Attorney Dominic Rossetti, counsel for the Respondent United States of America.
This action is now before the undersigned 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 McReynolds's petition be DENIED and that the Court find that he is not entitled to a certificate of appealability and is therefore not entitled to appeal in forma pauperis.
I. Procedural Background.
In February 2012, McReynolds was charged in a 17-count indictment, along with several codefendants, with a variety of distribution related drug charges involving marijuana and cocaine. (See Doc. 14). The court appointed Arthur T. Powell, III, as counsel to represent McReynolds in the matter (doc. 8), and, with the assistance of his counsel, McReynolds plead guilty to count 11 of the indictment, possession with intent to distribute crack cocaine in violation of 21 U.S.C. § 841(a)(1) (doc. 142), and was subject to the penalty provisions of 21 U.S.C. § 841(b)(1)(C), including a 20-year maximum sentence. (Doc. 174 at 1). The signed factual resume incorporated by reference into the written plea agreement stated:
On December 16, 2009, the Selma Police Department used a confidential informant to purchase approximately 26.51 grams of crack cocaine from the defendant in Selma, Alabama. The defendant entered the informant's vehicle to conduct the transaction. The informant paid the defendant $1, 200 for the crack cocaine.
The defendant has been selling crack cocaine, cocaine and marijuana in Selma since at least 1995. The defendant agrees that over the course of the charged conspiracy in this case the defendant conspired to distribute in excess of 8.4 kilograms of crack cocaine and the defendant expressly agrees to be held accountable for this amount of crack cocaine for purposes of relevant conduct in this case. The defendant also agrees that he was an organizer and leader of criminal activity involving 5 or more participants and was otherwise extensive in accordance with U.S.S.G. § 3B1.1(a).
(Doc. 142 at 11). Chief District Judge William Steele conducted a guilty plea hearing on September 26, 2012, where McReynolds testified under oath that he "fully understood the terms and conditions of the plea agreement and the factual resume, and that [he] agree[d] with it." (Doc. 220-1 at 7). Further McReynolds acknowledged that he understood that by pleading guilty he was admitting to the elements of the offense as charged by the government and was waiving his right to require the government to prove each element beyond a reasonable doubt at trial. (Doc. 220-1 at 12-13). Judge Steele then accepted McReynolds' guilty plea to count 11 and found him guilty as charged. ( Id. at 13).
Prior to sentencing, the U.S. Probation Office prepared a Presentence Investigation Report (doc. 174). Applying the drug quantity table, the PSR noted McReynolds' base offense level would be set at 38 based on his admission that he was involved with the distribution of more than 8.4 kilograms of crack cocaine. (Doc. 174 at 12). The base level was enhanced two points for the use of a weapon, two more points for the use of violence or directing the use of violence, another two points for intimidating a witness or obstructing justice in connection with the investigation, and it was increased by four points for McReynolds' participation as an organizer or leader of criminal activity. (Doc. 174 at 12-13). McReynolds then received a reduction of three points for timely acceptance of responsibility, giving him a total offense level for sentencing purposes of 43 and a criminal history score of I. ( Id. at 13-14). The PSR computed a guideline for life imprisonment for McReynolds; whereas, the statutory maximum sentence was 20-years imprisonment. (Doc. 174 at 17). Therefore, based on the United States Sentencing Guidelines § 5G1.1(a), "the statutorily authorized maximum sentence [of 20-years imprisonment was used as] the guideline sentence." (Id.). McReynolds originally objected to the enhancements included in the PSR for: the use of a firearm, threat to use violence or directing the use of violence, and witness intimidation or obstruction of justice in connection with the investigation or prosecution of the offense (doc. 175 at 1), but McReynolds ultimately withdrew his objections to these enhancements at the sentencing hearing. McReynolds' attorney explained that the objections were withdrawn, "considering the fact that the statutory maximum is 20 years, we don't feel that the content of the PSI is as critical as it might be in another situation." (Doc. 220-3 at 4). The Court subsequently adopted the PSR as published by the probation office. ( Id. at 3). And, on January 31, 2013, Judge Steele sentenced McReynolds to the statutory guideline of 240 months. ( Id. at 6). McReynolds did not file a notice of non-appeal, notice of appeal, nor did he directly appeal his conviction or sentence. (Doc. 210 at 22-29).
McReynolds timely filed the current habeas petition on November 22, 2013, and an amended petition on August 14, 2014, alleging: (1) ineffective assistance of counsel for failing to file a notice of appeal; (2) ineffective assistance of counsel for not procuring a Rule 11(c)(1)(c) plea agreement as requested; (3) ineffective assistance of counsel for failing to present mitigating factors at sentencing; (4) improper enhancement of sentence; (5) improper use of information from codefendants' sentencing in Petitioner's sentencing; and (6) ineffective assistance of counsel for failing to object to the court's usage of the codefendants' sentencing information. (See Docs. 210, 227).
II. Legal Standards.
a. Habeas Standard.
Habeas relief is an extraordinary remedy which "may not do service for a[ ] [direct] appeal." United States v. Frady, 456 U.S. 152, 165, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982); see also Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004) ("Courts have long and consistently affirmed that a collateral challenge, such as a § 2255 motion, may not be a surrogate for a direct appeal."). A defendant who has waived or exhausted his right to appeal is presumed to stand "fully and finally convicted." Frady, 456 U.S. at 164. The scope of collateral attack has remained extremely limited. "At least where there has been no intervening change in controlling law, a claim or issue that was decided against a defendant on direct appeal may not be the basis for relief in a § 2255 proceeding." Rozier v. United States, 701 F.3d 681, 684 (11th Cir. 2012) (citations omitted).
It is black-letter law that "section 2255 generally cannot be used to challenge an issue that the defendant could have raised on direct appeal but failed to." Spencer v. United States, 727 F.3d 1076, 1091 (11th Cir. 2013) (citations omitted). Thus, "[u]nder the procedural default rule, a defendant generally must advance an available challenge to a criminal conviction or sentence on direct appeal or else the defendant is barred from presenting that claim in a § 2255 proceeding." McKay v. United States, 657 F.3d 1190, 1196 (11th Cir. 2011) (citation omitted). A defendant's procedural default can be excused under one of two exceptions: "(1) for cause and prejudice, or (2) for a miscarriage of justice, or actual innocence." Id . "Under the cause and prejudice exception, a § 2255 movant can avoid application of the procedural default bar by showing cause for not raising the claim of error on direct appeal and actual prejudice from the alleged error." Id . (citation and internal marks omitted).
b. Ineffective Assistance of Counsel Claims and Strickland Standard.
McReynolds has asserted six grounds for relief. Four of those grounds are claims of ineffective assistance of counsel. To establish his claims of ineffective assistance of counsel, McReynolds is required to show both that his attorney's representation 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, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). He "bears the burden of proof" as to both prongs "and 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, 122 S.Ct. 1295, 152 L.Ed.2d 208 (2002); accord Cooper v. Sec'y, Dep't of Corr., 646 F.3d 1328, 1351 (11th Cir. 2011).
To succeed on the performance prong, McReynolds "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 explained,
"[s]urmounting Strickland's high bar is never an easy task." Padilla v. Kentucky, 559 U.S. 356, 371, 130 S.Ct. 1473, 176 L.Ed.2d 284 (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, ___ U.S. ___, 131 S.Ct. 770, 788, 178 L.Ed.2d 624 (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, 124 S.Ct. 1, 157 L.Ed.2d 1 (2003))); Gonzalez v. United States, Nos. 09-22386-Cv-JORDAN; 07-20759-Cr-JORDAN, 2010 U.S. Dist. LEXIS 58456, 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. Fla. Dep't of Corr., 290 F.3d 1318, 1322 (11th Cir. 2002))), report and recommendation adopted, 2010 U.S. Dist. LEXIS 58563, 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. Schofield, 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 U.S. Dist. LEXIS 187470, 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 U.S. Dist. LEXIS 46938, 2013 WL 1339718 (N.D.Ga. Apr. 1, 2013); Id . ("[Petitioner 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 U.S. Dist. LEXIS 58893, 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, 122 S.Ct. 1843, 152 L.Ed.2d 914 (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, McReynolds "must affirmatively prove prejudice" to succeed on an ineffective assistance of counsel claim. Butcher v. United States, 368 F.3d 1290, 1294, 95 Fed.App'x 1290 (11th Cir. 2004). "[T]hat the errors had some conceivable effect on the outcome of the proceeding" is insufficient to show 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. Sec'y, 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, 119 S.Ct. 2347, 144 L.Ed.2d 243 (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.").
McReynolds maintains that counsel rendered ineffective assistance in failing to file a notice of appeal. The law is well-settled, of course, that "an attorney who fails to file an appeal on behalf of a client who specifically requests it acts in a professionally unreasonable manner per se" and that "[t]o satisfy the prejudice prong of the Strickland test, a defendant who shows that his attorney has ignored his wishes and failed to appeal his case need only demonstrate that, but for the attorney's deficient performance, he would have appealed." Gomez-Diaz v. United States, 433 F.3d 788, 792 (11th Cir. 2005) (citations omitted). The same principles apply even when the petitioner, as here, has signed a partial appeal waiver. "If the evidence establishes... that Petitioner's attorney acted contrary to his client's wishes, ... prejudice is presumed, and Petitioner is entitled to an out-of-time appeal, regardless of whether he can identify any arguably meritorious grounds for appeal that would fit one of the exceptions contained in his appeal waiver." Gomez-Diaz, 433 F.3d. at 793.
Even if no request to appeal is made, counsel is obligated to consult with his client if either "a rational defendant would want to appeal" or the client has "reasonably demonstrated to counsel that he [i]s interested in appealing." Flores-Ortega, 528 U.S. at 479. To satisfy the consultation obligation when it arises, counsel must "advis[e] the defendant about the advantages and disadvantages of taking an appeal and mak[e] a reasonable effort to discover the defendant's wishes." Id. at 478. If counsel has a duty to consult but fails to satisfy it, his deficient performance is established, and the defendant establishes resulting prejudice by showing that, but for counsel's failure to consult, he would have appealed. Gomez-Diaz, 433 F.3d at 792.
Relevant factors in determining if a rational defendant would want to appeal include: (1) "whether the conviction follows a guilty plea"; (2) "whether the defendant received the sentence he bargained for"; (3) "whether the plea [agreement] expressly... waived some or all appeal rights"; and (4) whether there are "nonfrivolous grounds for appeal." ...