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Tibbs v. United States

United States District Court, N.D. Alabama, Northeastern Division

July 21, 2017

MYRON DEWAYNE TIBBS Petitioner,
v.
UNITED STATES OF AMERICA,

          MEMORANDUM OPINION

          KARON OWEN BOWDRE, UNITED STATES DISTRICT CHIEF JUDGE

         This 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.[1] (Civ. Doc. 1 in 16-8003 and Civ. Doc. 4 in 16-8004).[2] 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.

         The 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.

         I. BACKGROUND

         The 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).

         Prior 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).

         On July 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 11-399).

         The 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).

         After 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 12-329).

         Mr. 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).

         Presetencing

         The 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).

         Subsequently, 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 11-399.[3]

         After 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.

         Under “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.[4]

         Keiper 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 section.

         Counsel 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

         At the 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).

         At the 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.

         Before 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).

         The 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).

         The 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 11-399).

         Appeal

         The 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).

         Habeas Cases

         Mr. 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[5] (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.

         II. DISCUSSION

         Between 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.

         The 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.”).

         Therefore, 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 16-8003).

         Mr. 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.

         The 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.

         Deficient 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).

         A 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.

         Conclusory 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.”).

         Prejudice 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.

         1. Sentencing Counsel

         a. Deficient Performance

         Mr. 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 in 11-399.

         Despite 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 Strickland.

         b. Prejudice

         Not 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 ...


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