United States District Court, N.D. Alabama, Northeastern Division
OWEN BOWDRE, UNITED STATES DISTRICT CHIEF JUDGE
case is before the court on Myron Tibbs' motions to
vacate, set aside or correct his sentence pursuant to 28
U.S.C. § 2255 in two cases: 5:16-cv-8003-KOB and
5:16-cv-8004-KOB. (Civ. Doc. 1 in 16-8003 and Civ. Doc. 4 in
16-8004). A jury found Mr. Tibbs guilty of
conspiracy to possess with the intent to distribute less than
100 kilograms of marijuana in criminal case
5:11-cv-399-KOB-JHE, and he pled guilty to felon in
possession of a firearm in criminal case 5:12-cv-329-KOB-JHE.
In his motions to vacate, he alleges a total of twenty- eight
numbered issues involving claims of ineffective assistance of
trial, sentencing, and appellate counsel.
court has interpreted Mr. Tibbs's claims liberally
because he is not represented by counsel in these actions.
See Mederos v. United States, 218 F.3d 1252, 1254
(11th Cir. 2000) (“Pro se filings, including those
submitted by [the petitioner] in the present case, are
entitled to liberal construction.”). After reviewing
Mr. Tibbs's motions to vacate, the Government's
responses, and Mr. Tibbs' replies in both cases, and for
the following reasons, the court finds that his motions to
vacate are due to be GRANTED on the grounds of ineffective
assistance of sentencing and appellate counsel for failing to
object to or appeal the district court's use of the
incorrect statutory penalty section and corresponding
incorrect guideline range in sentencing Mr. Tibbs; the
motions will be DENIED on all other grounds.
Government filed a twenty-six count Superseding Indictment on
December 29, 2011against Mr. Tibbs and fourteen other
defendants, charging crimes related to a drug distribution
ring, money laundering, and firearm offenses. Specifically,
the Superseding Indictment charged Mr. Tibbs with conspiracy
to possess with intent to distribute 5 kilograms or more of
cocaine hydrochloride and 280 grams or more of
“crack” cocaine (Count One), conspiracy to
possess with intent to distribute 1, 000 kilograms or more of
marijuana (Count Two), and felon in possession of a firearm
(Count Eighteen). (Crim. Doc. 53 in 11-399).
to his trial, Mr. Tibbs' trial attorney, Jerry Barlcay,
along with several co- defendants, moved to suppress
recordings of calls, and any evidence derived from those
calls, that the Government intercepted via wiretaps on
co-defendant Kingy Holden's telephone. After a hearing on
the motions to suppress, the district court denied those
motions on July 5, 2012. (Crim. Doc. 184 in 11-399).
18, 2012, the Government filed a motion to dismiss the felon
in possession charge in Count Eighteen. (Crim. Doc. 197 in
11-399). That same day, without a response from Mr. Tibbs,
the court granted that motion and dismissed Count Eighteen
against Mr. Tibbs without prejudice. (Crim. Doc. 199 in
drug conspiracy trial began on July 23, 2012, and lasted more
than one week. After the Government rested on August 1, 2012,
Mr. Tibbs' trial counsel Barclay moved for judgment of
acquittal under Fed.R.Civ.P. 29(a), which the district court
denied. The jury found Mr. Tibbs not guilty on Count One, the
conspiracy to possess with intent to distribute cocaine, but
guilty on Count Two, the conspiracy to possess with intent to
distribute marijuana weighing less than one hundred
kilograms-the smallest quantity for which the jury could find
Mr. Tibbs guilty. (Crim. Doc. 213 in 11-399).
the trial began, the Government re-indicted Mr. Tibbs on July
31, 2012 on the felon in possession charge in a new case,
which was based on the same facts as alleged in Count
Eighteen in the drug conspiracy case. (Crim. Doc. 1 in
12-cr-329). After Mr. Tibbs' counsel Barclay entered an
appearance in this new case and again moved to suppress
certain evidence obtained as a result of the wiretaps and
subsequent search warrant, the court granted Barclay's
motion to withdraw and appointed the Federal Public
Defender's Office to represent Mr. Tibbs. In addition to
the pending motion to suppress, Assistant Federal Public
Defenders Melanie Keiper and Rick Burgess moved to dismiss
the felon in possession Indictment based on a violation of
the Speedy Trial Act. After a separate hearing on both
motions, the court denied them. (Crim. Docs. 20 & 25 in
Tibbs entered a plea of guilty in the felon in possession
case pursuant to a plea agreement on December 17, 2012,
maintaining his right to appeal the denial of the motion to
suppress and motion to dismiss the Indictment in that case.
(Crim. Doc. 28 in 12-329).
Probation Office disclosed its initial Presentence
Investigation Report (PSR) for Mr. Tibbs on February 3, 2013.
Keiper and Burgess, serving as sentencing counsel for Mr.
Tibbs on both 11-399 and 12-329, filed objections to the PSR
on February 22, 2013, and the Government filed responses to
those objections. (Crim. Docs. 323 & 325 in 11-399). One
of Mr. Tibbs' objections involved paragraph 142 of the
PSR regarding his “Offense Level Computation”; he
argues that the jury found Mr. Tibbs guilty of possessing
with the intent to distribute less than 100 kilograms of
marijuana; that no evidence supported a finding of “80
to 100 kilograms” of marijuana attributable to Mr.
Tibbs; and that his base offense level should be 8, instead
of 24. (Crim. Doc. 323 at 3 in 11-399). In its response, the
Government submitted that it “cannot prove Mr.
Tibbs' attributable is more than 4.5 pounds of marijuana,
” and stated the base offense level should be 10,
instead of 24. (Crim. Doc. 325 in 11-399).
the Probation Office resolved some of the objections
and submitted its “Addendum to the Presentence
Report” and Revised PSR on April 1, 2013. The Revised
PSR indicated a change in Mr. Tibbs' “Base Offense
Level” in paragraph 142 from 24 to 10 for the drug
conspiracy charge in case 11-399 because of Mr. Tibbs'
objection and the Government's response regarding the
lesser amount of marijuana attributable to him. However, the
Revised PSR failed to change the statutory penalty section
from 21 U.S.C. § 841 (b)(1)(C)) to 21 U.S.C. § 841
(b)(1)(D) in paragraph 142 to reflect the correct statutory
penalty section for the lesser amount of marijuana in case
determining that Mr. Tibbs had a “Combined Adjusted
Offense Level” of 24 for both cases, the Revised PSR
indicated in paragraph 159 that Mr. Tibbs was a career
offender based on a prior “Trafficking Cocaine”
charge and a “Discharging a Firearm Into an Occupied
Dwelling” charge. However, paragraph 159 failed to
apply the proper statutory penalty section of 21 U.S.C.
§ 841 (b)(1)(D) in assessing the “Chapter Four
Enhancement.” As a result, the Revised PSR incorrectly
assessed a “Total Offense Level” of 34 based on
the enhancements and a much higher statutory maximum sentence
using the wrong statutory penalty section; instead a
“Total Offense Level” of 24 would have been the
proper level had the Probation Office applied the correct
statutory penalty section.
“Part D. Sentencing Options, ” the Revised PSR
incorrectly stated in paragraph 195 that the statutory
penalty provision for the marijuana drug conspiracy count in
11-399 was 21 U.S.C. § 841(b)(1)(C), with a maximum term
of imprisonment of 30 years, instead of a maximum of 10 years
under the correct statutory penalty section of 21 U.S.C.
§ (b)(1)(D). Based on the incorrect “Total Offense
Level” of 34 and a correct criminal category history of
VI, the Revised PSR indicated that the guideline imprisonment
range for the drug conspiracy count in 11-399 was 262 months
to 327 months, and 120 months for the felon in possession
charge in 12-329.
and Burgess filed “Supplemental Objections to the
Presentence Investigation Report” on April 11, 2013,
objecting only to the facts contained in the PSR that
contradicted Mr. Tibbs' assertion that he is not guilty
of the charges in the drug conspiracy case. (Crim. Doc. 338
in 11-399). The Supplemental Objections mentioned nothing
about the incorrect statutory penalty section for the
marijuana drug conspiracy charge or the incorrect
“Total Offense Level” of 34 that resulted from
applying the wrong statutory maximum of 30 years, instead of
10 year maximum called for by the correct statutory penalty
Keiper and Burgess also submitted a “Sentencing
Memorandum” on September 9, 2013, prior to the
sentencing hearing set for September 16, 2013. In that
memorandum, Keiper and Burgess argued that Mr. Tibbs should
receive the credit for acceptance of responsibility for
pleading guilty to the felon in possession charge and that
the court should not consider the Trafficking Cocaine charge
for enhancement purposes because Mr. Tibbs “was
promised those convictions would be vacated if he was later
prosecuted federally.” (Civ. Doc. 32 in 12-329). Mr.
Tibbs' counsel argued in the memorandum that, if the
court gave Mr. Tibbs the reduction for acceptance of
responsibility and did not consider the Trafficking Cocaine
charge for purposes of the enhancement for career offender
purposes, his criminal history would be II; his base offense
level would be 20; his total offense level would be 17
applying the 3 point reduction for acceptance of
responsibility; and his guideline range would be 27 to 33
months. However, the memorandum did not mention that the
Revised PSR contained the errors mentioned above.
sentencing hearing on September 16, 2017, the district court
resolved the outstanding objections made by Mr. Tibbs but not
resolved by the Revised PSR. The court overruled Mr.
Tibbs' objection to paragraph 159 that the Trafficking
Cocaine charge should not be included as a career offender
offense and found that Mr. Tibbs was a career offender within
the meaning of USSG § 4B1.1(b)(2). However, the court
gave Mr. Tibbs the 3 point reduction in the offense level for
acceptance of responsibility after the Government indicated
it would not object, and the court amended paragraph 160 to
reflect the deduction, making the total offense level 31
instead of 34. (Civ. Doc. 407 in 11-399).
sentencing hearing, the court indicated that many adjustments
were made to the PSR, and it “want[ed] to make sure
that [it didn't] overlook any today.” The court
specifically asked if Mr. Tibbs' had any other objections
to the PSR other than those on which the court had already
ruled. (Civ. Doc. 407 at 14, 24 in 11-399). Mr. Tibbs'
sentencing counsel did not object to the errors pertaining to
the incorrect statutory penalty section and subsequent
incorrect guideline range.
pronouncing its sentence at the hearing, the court indicated
that, although it was not bound to apply the guidelines, it
had “consulted them and taken them into account on the
issue of the appropriate range of sentence to be imposed in
this case.” The court then found Mr. Tibbs'
guideline offense level is 31, the criminal history category
is VI, and the advisory guideline imprisonment range is from
188 to 235 months in case number 11-399 and 120 months in
12-329. (Civ. Doc. 407 at 24-25).
court expressed concern about the impact of Mr. Tibbs'
prior convictions being “felt twice” in the
guideline calculations-once in “jumping to” a 34
total offense level and then a second time in jumping from a
criminal history category III to a VI. The court emphasized
that this situation “resulted in a substantial increase
in the overall guideline range to be imposed in this
case.” (Civ. Doc. 407 at 39).
court acknowledged its authority to impose a sentence outside
the guideline range and sentenced Mr. Tibbs to 120 months
imprisonment for Count Two in the drug conspiracy case and
120 months imprisonment for Count One in the felon in
possession case, to be served concurrently. (Civ. Doc. 407 at
44 in 11-399 & Crim. Doc. 387 in 11-399 and Doc. 35 in
12-329). The court found that sentence reasonable “in
light of the guidelines and the factors in 18 U.S.C. [§]
3553(a)” and concluded that the “sentence imposed
would have been the same regardless of how the guideline
issues had been resolved.” Toward the very end of the
sentencing hearing after it had pronounced the sentence, the
court again asked the parties if they had any objections
“as to the findings of fact, the calculations, the
sentence, or the manner in which the sentence was pronounced
or imposed other than those previously stated?” No
party had any other objections. (Civ. Doc. 407 at 47 in
court appointed the Federal Public Defender's Office to
continue representing Mr. Tibbs on a direct appeal, and
Assistant Federal Public Defenders Allison Case and James
Gibson appealed Mr. Tibbs' case to the Eleventh Circuit
addressing many issues, but no sentencing issues. The
Eleventh Circuit affirmed the district court's judgment
in both cases on February 11, 2015 in an unpublished opinion.
United States v. Holden, et al., 603 F. App'x
744 (11th Cir. 2015); see also (Crim. Doc. 412 in
11-399 and Doc. 50 in 12-329). The Supreme Court denied
certiorari on November 16, 2015. (Crim. Doc. 415 in 11-399).
Tibbs' filed the current habeas motions asking this court
to vacate, set aside, or correct his sentence in both of his
criminal cases on January 21, 2016 (civ. doc. 1 in 16-8003,
attacking his sentence in 5:12-cr-329-KOB-JHE) and on
February 4, 2016 (doc 4 in 16-8004, attacking his
conviction and sentence in 5:11-cr-399-KOB-JHE). The court
ordered the Government to show cause in writing why it should
not grant both habeas motions (civ. doc. 2 in 16-8003 &
civ. doc. 5 in 16-8004), and the Government filed its
responses on March 18, 2016 (civ. doc. 7 in 16-8003 &
civ. doc. 8 in 16-8004). Mr. Tibbs filed his reply to the
Government's response on April 11, 2016. (Civ. Doc. 8 in
16-8003 & Civ. Doc. 9 in 16-8004). Mr. Tibbs is currently
incarcerated at TCI Talladega.
both of his habeas cases, Mr. Tibbs alleges a total of
twenty-eight numbered issues, with some involving several
sub-issues. Most of his issues involve ineffective assistance
of trial counsel or allege ineffective assistance of
appellate counsel as cause for excusing procedural default.
Some of the issues overlap in both cases.
court will first address the grounds on which it will vacate
Mr. Tibbs' sentence-ineffective assistance of sentencing
and appellate counsel for failure to object to or appeal the
district court's use of the incorrect statutory penalty
section and corresponding incorrect guideline range in
sentencing Mr. Tibbs. Although the court will vacate Mr.
Tibbs' sentences on several grounds, the court must
address all other grounds raised in both motions to vacate on
which the court will deny relief. See Ferro v. United
States, 181 F. App'x 824, 825-826 (11th Cir. 2006)
(a district court must address all claims in a § 2255
habeas petition); see also Clisby v. Jones, 960 F.2d
925, 936 (11th Cir. 1992) (a district court must
“resolve all claims for relief raised in a petition for
writ of habeas corpus . . . regardless whether habeas relief
is granted or denied.”).
the court will address the remaining grounds raised in both
motions to vacate in several different categories:
ineffective assistance of trial counsel; grounds raised by
Mr. Tibbs' appellate counsel on direct appeal and already
litigated by the Eleventh Circuit; those grounds not raised
on direct appeal but that are procedurally defaulted; and the
ground over which the court has no jurisdiction.
A. Ineffective Assistance of Sentencing and Appellate Counsel
for Failing to Object to or Appeal the District Court's
Use of the Incorrect Statutory Penalty Section and
Corresponding Incorrect Guideline Range in Sentencing Mr.
Tibbs (Grounds 5, 16(a)(4), & 16(a)(5) in Civ. Doc. 4 in
16-8004 & Grounds 7, 11, & 12 in Civ. Doc. 1 in
Tibbs argues that his sentencing and appellate counsel
provided ineffective assistance by failing to object to or
appeal the erroneous Sentencing Guideline calculation in the
Amended Presentence Report. The court agrees with Mr. Tibbs
on this issue and finds that the court should vacate his
sentence in 11-399 and 12-329 and re-sentence him according
to the correct calculation.
Sixth Amendment gives criminal defendants the right to
effective assistance of counsel. See Strickland v.
Washington, 466 U.S. 668, 684 (1984). To prevail on a
claim of ineffective assistance of counsel, Mr. Tibbs must
demonstrate that (1) his counsel's performance fell below
an objective standard of reasonableness; and (2) he
suffered prejudice because of that deficient performance.
See Id. at 684-91.
performance exists when counsel acts “outside the wide
range of professionally competent assistance.”
Strickland, 466 U.S. at 690. The test is not what
the best-or even a good-lawyer would have done, but
“whether some reasonable lawyer at the trial
could have acted, in the circumstances, as defense counsel
acted at trial.” Waters v. Thomas, 46 F.3d
1506, 1512 (11th Cir. 1995) (en banc) (emphasis added).
petitioner's counsel generally-not always-is presumed to
have acted reasonably. Strickland, 466 U.S. at 690;
Williams v. Head, 185 F.3d 1223, 1228 (11th Cir.
1999) (“[W]here the record is incomplete or unclear
about [counsel]'s actions, we will presume that he did
what he should have done, and that he exercised reasonable
professional judgment.”). To overcome that presumption,
a petitioner “must identify the acts or omissions of
counsel that are alleged not to have been the result of
reasonable professional judgment.” Strickland,
466 U.S. at 690.
or unsupported allegations cannot support an ineffective
assistance of counsel claim. See Tejada v. Dugger,
941 F.2d 1551, 1559 (11th Cir. 1991) (finding
“unsupported allegations, conclusory in nature and
lacking factual substantiation” to be an insufficient
basis for relief); see also Chandler v. United
States, 218 F.3d 1305, 1314 n.15 (“An ambiguous or
silent record is not sufficient to disprove the strong and
continuing [Strickland] presumption.”).
exists if “a reasonable probability [exists] that, but
for counsel's unprofessional errors, the result of the
proceeding would have been different.”
Strickland, 466 U.S at 694. Merely showing that
counsel's error had “some conceivable effect on the
outcome of the proceeding” cannot establish prejudice.
Id. at 693.
Tibbs' sentencing counsel's failure to object to the
incorrect statutory penalty section and guideline range in
the Revised PSR constituted deficient performance under the
first prong of Strickland. As discussed previously
under the “Presentencing” and
“Sentencing” sections, Mr. Tibbs' sentencing
counsel objected to the initial PSR, specifically objecting
to paragraph 142 of the PSR regarding Mr. Tibbs'
“Offense Level Computation.” Sentencing counsel
successfully argued that Mr. Tibbs' base offense level
should be much lower than 24 based on the amount of marijuana
the jury attributed to Mr. Tibbs. As a result, the Probation
Officer submitted a Revised PSR giving Mr. Tibbs the much
lower base offense level of 10 for his drug conspiracy charge
sentencing counsel's knowledge that the base offense
level should be much lower based on the new amount of
marijuana attributable to Mr. Tibbs, counsel failed to
thoroughly review the Revised PSR and object to its use of
the incorrect statutory penalty for the amount of marijuana
attributable to Mr. Tibbs. No reasonable attorney, having
successfully objected to the base offense level, would have
failed to ensure that the Revised PSR used the correct
statutory penalty section and resulting
substantially lower guideline range. Sentencing
counsel, who properly objected to the wrong penalty section,
should have been aware of the correct statutory penalty
section that would apply to Mr. Tibbs, and the failure to
raise this clear legal issue was deficient. See Smith v.
Singletary, 170 F.3d 1051, 1054 (11th Cir. 1999)
(“Ignorance of well- defined legal principals is nearly
inexcusable.”); see also Deonarinesingh v. United
States, 542 F. App'x 857, 863 (11th Cir. 2013)
(“[C]ounsel's ignorance of a well-defined legal
principle could be inexcusable and demonstrate ineffective
performance.”). Sentencing counsel's failure to
object to the incorrect statutory penalty section and
erroneous guideline calculation was deficient under
only was sentencing counsel's performance on this issue
deficient, but it also prejudiced Mr. Tibbs. The Government
does not dispute that the Revised PSR is wrong or that the
court sentenced Mr. Tibbs using an incorrect statutory
penalty section and an incorrect guideline range. (Civ. Doc.
7 in 16-8003). The Government argues that Mr. Tibbs was not
prejudiced because the court did not sentence him above the
statutory maximum of 120 months. However, the Government
relies on the wrong legal standard for determining prejudice
for a claim of ineffective assistance of counsel. The court
need only find that a reasonable probability exists that the