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Gibson v. United States

United States District Court, S.D. Alabama, Southern Division

January 29, 2018




         This matter is before the Court on the petitioner's request for certificate of appealability (“COA”). (Doc. 78). Because the Court has already denied the petitioner a COA, (Doc. 63 at 45-47; Docs. 70-71), the Court construes this filing as a motion to reconsider that ruling.

         The report and recommendation (“R&R”) issued by the Magistrate Judge sets forth the legal test for issuance of a COA. (Doc. 63 at 45-46). The R&R, in addressing the petitioner's claims, also sets forth why the petitioner fails to satisfy that test. The Court herein amplifies the Magistrate Judge's reasoning as follows.

         The petitioner pleaded guilty to a single count of bank robbery. (Docs. 1, 22). The plea was blind, meaning that the government did not agree to recommend the low end of the sentencing guideline range or to stand silent at sentencing but that the defendant remained free to challenge all aspects of the future pre-sentence report ("PSR") and to appeal on any available grounds. The petitioner admits that he "always had the intention of pleading guilty, " and he does not challenge his plea on any ground. (Doc. 69 at 3). Instead, he challenges only his 96-month sentence.

         I. Ineffective Assistance - Trial Counsel.

         The petitioner seeks a COA as to all eight grounds raised in his petition. (Doc. 78 at 1-2). Each ground is addressed in the R&R, and the Court offers only the following additional observations.

         "To establish ineffective assistance of counsel a defendant must show both deficient performance by counsel and prejudice." Premo v. Moore, 562 U.S. 115, 121 (2011) (internal quotes omitted). "A court considering a claim of ineffective assistance must apply a strong presumption that counsel's representation was within the wide range of reasonable professional assistance." Id. (internal quotes omitted). "The question is whether an attorney's representation amounted to incompetence under prevailing professional norms, not whether it deviated from best practices or common custom." Harrington v. Richter, 562 U.S. 86, 105 (2011) (internal quotes omitted). The standard is "highly deferential, " id. (internal quotes omitted), to the extent that "a petitioner must establish that no competent counsel would have taken the action that his counsel did take." Chandler v. United States, 218 F.3d 1305, 1315 (11th Cir. 2000) (en banc).

         "To establish prejudice, the defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Knowles v. Mirzayance, 556 U.S. 111, 127 (2009) (internal quotes omitted). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. (internal quotes omitted).

         A. Failure to Investigate the Petitioner's Background.[1]

         The petitioner complains that he told counsel he had donated services to Habitat for Humanity and had built accessibility ramps for the disabled, and that he identified witnesses to such efforts, yet counsel failed to contact them or to advise the Court or the probation office of this information. (Doc. 53 at 14; Doc. 54 at 15; Doc. 69 at 3). Counsel's performance was not deficient, since a competent attorney reasonably could have viewed this information as unhelpful to the sentencing decision. Nor did counsel's performance prejudice the petitioner, because the petitioner himself submitted a letter, which the Court considered in imposing sentence, (Doc. 46 at 15, 17), in which he stated that, "when I reached adulthood I used my skill in carpentry to build wheelchair ramps and donated my time with Habitat for Humanity." (Doc. 83).

         B. Failure to Convey or Pursue a Plea Offer.

         The petitioner alleges that counsel failed to convey to him a plea offer made by the government and that he failed to pursue a plea agreement under which the government would recommend a low-end sentence. (Doc. 53 at 15; Doc. 54 at 16-19). As stated in the R&R, (Doc. 63 at 28), the former assertion is based exclusively on the government's statement at sentencing that "there is no plea agreement, " a benign proposition that does not remotely suggest a plea offer was ever made. (Doc. 46 at 14). Counsel could not perform deficiently by failing to convey a plea offer that was never made, and the petitioner could not be prejudiced by the failure to convey a non-existent offer.

         The petitioner was arrested on November 13, 2013. In mid-December 2013, counsel advised the petitioner to enter a blind plea, which the petitioner did in January 2014. (Doc. 54 at 40). The petitioner asserts that counsel failed to "pursue" a plea agreement and that there is a reasonable probability that, had he done so, the government would have agreed to recommend a low-end guideline sentence. (Id. at 19). As this Court has noted, a blind plea is not inherently inferior to a plea deal; under the former, the defendant receives no government recommendation for a low-end sentence, but he remains free to argue for a lower guideline range and to appeal on any available grounds. "Evaluating such a tradeoff represents a quintessentially strategic decision, immune from second-guessing in the guise of an ineffective assistance challenge." Bracy v. United States, 2010 WL 749330 at *7 (S.D. Ala. 2010). Only once has the Eleventh Circuit been known to find deficient performance in the context of a blind plea, and in that case the defendant, who thought his exposure was ten years, received a 99-year mandatory minimum sentence due to his criminal history (which counsel failed to investigate before recommending a blind plea). Esslinger v. Davis, 44 F.3d 1515, 1529-30 (11th Cir. 1995).

         Nor was the petitioner prejudiced by counsel's performance. First, he identifies no evidence that the government was interested in reaching a plea deal at all, much less one in which it would recommend a low-end sentence; simply positing that "the majority of criminal cases in the federal system" result in such a deal, (Doc. 54 at 18), does not do the trick.[2] Second, he has not alleged that he would have accepted such a deal had it been offered; while he might have liked to receive a low-end guideline recommendation, he has not stated that he would have traded away the right to challenge the guideline calculation and the right to appeal on any available ground. Without such an allegation, he cannot show prejudice. E.g., Rosin v. United States, 786 F.3d 873, 878 (11th Cir. 2015) (defendant's claim that trial counsel failed to seek a plea deal on his behalf failed because he "did not allege that he would have accepted a guilty plea ... but for the alleged errors" of counsel).[3]

         C. Underestimating Sentencing Exposure.

         According to the petitioner, counsel advised him at arraignment (their first meeting) that he was looking at no more than five years but most likely three to four years. (Doc. 54 at 40). The petitioner admits counsel provided him only an "estimate" of his sentencing range, not a promise or guarantee. (Doc. 53 at 15; Doc. 54 at 19). The petitioner identifies no evidence that the figures suggested by counsel at arraignment do not reflect typical sentencing ranges in bank robbery cases in this district.

         Counsel's performance was not deficient for at least the following reasons: (1) he gave only an estimate, not a guarantee; and (2) the estimate was reasonable (indeed, it comported with both the probation office's estimate of the guideline range handed down a few days after arraignment and with the Eleventh Circuit's calculation of the guideline range on appeal). (Doc. 16 at 6; Doc. 48 at 4-5).

         Nor did the petitioner suffer actionable prejudice as a result of counsel's estimate. The petitioner suggests he would have insisted on plea negotiations had he realized he could receive an eight-year sentence but, as discussed in Part B, he has shown no reasonable probability that the government would have agreed to recommend a low-end sentence or that he would have surrendered his ability to challenge the guideline calculations or to appeal on any available ground, as a plea agreement would have required.[4]

         D. Failure to Share the Amended Pre-Sentence Report.

         The draft PSR included a two-point adjustment under Section 3C1.2. (Doc. 23 at 6). Counsel filed an objection to this adjustment on the grounds of impermissible double-counting. (Doc. 24 at 2). The probation officer agreed with his objection, (Doc. 26 at 1), and the final PSR removed this adjustment; however, the final PSR added a different adjustment under Section 3C1.1. (Doc. 25 at 6). The petitioner admits that counsel reviewed with him the draft PSR but denies he was made aware of the change in the final version from Section 3C1.2 to 3C1.1. This failure, he says, deprived him of the opportunity to object to the adjustment.

         Counsel's performance was not deficient because he had reviewed the draft PSR with the petitioner, and the adjustment appearing in the final version was based on information the two had already discussed. Section 3C1.2 deals with reckless endangerment during flight from a law enforcement officer, while Section 3C1.1 deals with obstruction of justice, including by "escaping or attempting to escape from custody before trial." U.S.S.G. § 3C1.1 application note 4(E). Both adjustments were based on the petitioner's conduct following his arrest, when he faked a medical condition in order to be taken to a hospital, where he fought an officer for control of his weapon while yelling he would kill the officer. (Doc. 25 at 4; Doc. 48 at 4-5). The petitioner says he must be afforded an opportunity to challenge false information in the PSR, (Doc. 54 at 19-20); that opportunity was afforded him with regard to the hospital incident when he and counsel discussed the draft PSR, which contained the same information. (Doc. 23 at 4).[5]

         Nor was the petitioner prejudiced by the failure of counsel to discuss with him the adjustment under Section 3C1.1. The petitioner says he was prejudiced because he had no opportunity to object to the adjustment, but it is for counsel -not the petitioner - to register objections. Counsel did in fact object to the adjustment, on the grounds of remoteness and double-counting. (Doc. 46 at 6-7, 9-10). The petitioner insists that, had he known of the adjustment, he could have argued against it on the grounds that "there were no federal charges filed" at the time of the conduct on which the adjustment was based. (Doc. 53 at 15). Again, it is not for the petitioner to make legal arguments; in any event, his proposed argument would have failed because it is legally wrong. The petitioner had not been indicted when he attempted to escape, but he was under arrest and had been interviewed about the bank robbery by the FBI at its offices shortly before he engineered a trip from the Daphne Police Department to the hospital. (Doc. 25 at 4).[6] That is sufficient to support the adjustment. United States v. Frasier, 381 F.3d 1097, 1100 (11th Cir. 2004) (rejecting the defendant's argument "that section 3C1.1 is inapplicable in this case because no federal charges were pending at the time of his escape attempt"; "[b]ecause an FBI agent had informed appellant prior to his attempted escape that the federal government was going to prosecute him, we conclude that the district court was justified in imposing the obstruction-of-justice enhancement.").[7]

         E. Failure to Request Psychiatric Examination.

         The bank robbery occurred on November 12, 2013. The next day, the petitioner was booked into the Baldwin County jail and placed on suicide watch for about three weeks. (Doc. 54 at 40). In March 2014, the petitioner advised counsel and the probation office that he had been on suicide watch and that he was being treated with psychotropic medications (BuSpar and Paxil). (Id.; Doc. 25 at 15-16). The petitioner claims that counsel, having received this information, should have moved for a psychiatric evaluation; had one been obtained, he continues, it would have revealed post-traumatic stress disorder ("PTSD"), [8] and that diagnosis would have led the Court to grant a downward departure under Section 5K2.13 or at least to impose a lesser sentence than 96 months. (Doc. 53 at 16; Doc. 54 at 20-21).

         Counsel was not deficient in failing to seek a psychiatric evaluation of the petitioner. What the petitioner reported to counsel and the probation office was that, prior to his arrest, he had never been diagnosed with any mental or emotional health problem, and he reported no family history of such problems. He reported that he was placed on suicide watch and on BuSpar and Paxil because, after he was incarcerated, he began having panic attacks, depression and anxiety. He also reported that for many years he had used both spice and prescription pills, his daily use of these substances suddenly and involuntarily ending upon his arrest. (Doc. 25 at 16). A competent attorney presented this information could reasonably believe that his client had no mental issues (beyond substance abuse) when he committed bank robbery and that his later problems were due to his capture, substance abuse withdrawal, the prospect of lengthy incarceration, etc.

         Nor was the petitioner prejudiced by counsel's performance. The petitioner's PTSD, had it been established prior to sentencing, would not have rendered him eligible for a downward departure, because the petitioner has identified no evidence that this condition "contributed substantially to the commission of the offense." U.S.S.G. § 5K2.13. Moreover, relief under this provision is unavailable when, as here, "the offense involved actual violence or a serious threat of violence" or "the defendant's criminal history indicates a need to incarcerate the defendant to protect the public." Id. The petitioner's alternative suggestion that the Court would have reduced his sentence below 96 months had it known he had PTSD fails for the same reasons: the petitioner has identified no causal connection between his PTSD and his commission of bank robbery, and in any event the violence inherent in his crime and evident in his past would have prompted the Court to impose a 96-month sentence regardless of any PTSD.

         F. Failure to Object to Section 3C1.1 Adjustment.[9]

         As noted in Part I.D, counsel did in fact object to this adjustment. (Doc. 46 at 6 -7, 9-10). As also noted in Part I.D, the petitioner's proposed "no federal charges" argument is legally meritless. The petitioner additionally posits that the adjustment "requires a significant amount of planning, as opposed to being the result of a spur of the moment decision or stemming from merely panic, confusion or mistake." (Doc. 54 at 22; accord id. at 26-27). As his own authority makes clear, such analysis is used only to evaluate conduct that Section 3C1.1 does not expressly list as constituting obstructive conduct.[10] Because escape and attempted escape are so listed, there is no room for additional analysis as to whether they qualify for the adjustment. Even if there were, the petitioner's orchestration of his escape attempt by faking a medical condition in order to be transported from the police department ...

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