United States District Court, S.D. Alabama, Southern Division
WILLIAM H. STEELE UNITED STATES DISTRICT JUDGE.
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.
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.
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.
Ineffective Assistance - Trial Counsel.
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
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).
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).
Failure to Investigate the Petitioner's
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).
Failure to Convey or Pursue a Plea Offer.
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.
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).
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. 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"
Underestimating Sentencing Exposure.
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.
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).
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.
Failure to Share the Amended Pre-Sentence Report.
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.
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).
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
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
Failure to Request Psychiatric Examination.
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"),  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).
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.
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.
Failure to Object to Section 3C1.1
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. 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 ...