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Millender v. United States

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

March 9, 2018

KAMARIAN D. MILLENDER, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          RECOMMENDATION OF THE MAGISTRATE JUDGE

          CHARLES S. COODY UNITED STATES MAGISTRATE JUDGE.

         Before the court is Kamarian D. Millender's (“Millender”) motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence by a person in federal custody. See Civ. Docs. # 2, 8 & 21.[1] For the reasons that follow, the court concludes that Millender's § 2255 motion be denied without an evidentiary hearing and that this action be dismissed with prejudice. Rule 8(a), Rules Governing Section 2255 Proceedings in the United States District Courts.

         I. INTRODUCTION

         Millender was arrested on February 25, 2014, after police found evidence of identity theft in his vehicle during a search prompted by an alert from a drug-detection dog. Crim. Doc. # 50 at 4-5. On July 8, 2014, Millender pleaded guilty under a plea agreement to one count of aggravated identity theft charged in a felony information. See 18 U.S.C. § 1028A; Civ. Docs. # 15-1 - 15-3. In the written plea agreement, Millender admitted that he had acquired stolen identities through his work as a lab technician at a medical facility and that through the filing of false income tax returns fraudulently requesting tax refunds he had “victimized approximately 73 individuals and sought to defraud the IRS out of approximately $536, 028, ” though only about $18, 915 in refunds actually issued. Crim. Doc. # 9 at 5-6.

         Three months after pleading guilty, and a few days before his sentencing, Millender wrote to the district court seeking to withdraw his guilty plea based on the alleged ineffective assistance of his retained trial counsel, Dustin Fowler. Crim. Doc. # 16. The district court allowed Fowler to withdraw as counsel, appointed new counsel, and then held a hearing on the withdrawal-of-guilty-plea motion on November 13, 2014. Crim. Docs. # 16-22; Civ. Doc. # 15-4. Following the hearing, the district court entered an order rejecting Millender's claim of Fowler's ineffective assistance and denying Millender's motion to withdraw his guilty plea. Crim. Doc. # 29; see also Crim. Docs. 30 & 31.

         After a sentencing hearing on December 12, 2014, the district court sentenced Millender to the mandatory term of 24 months' imprisonment and to pay $18, 915 in restitution. Crim. Docs. # 34-36.

         Millender appealed, arguing that his guilty plea was not knowing and voluntary and that the district court erred in rejecting his claim that he received ineffective assistance of counsel and in denying his motion to withdraw his guilty plea. On December 2, 2015, the Eleventh Circuit issued an opinion finding that Millender failed to demonstrate that his guilty plea was not knowing and voluntary or that he was denied effective assistance of counsel, and that the district court did not err in denying his withdrawal-of-guilty-plea motion. United States v. Millender, 635 F. App'x 611 (2015). Millender did not seek certiorari review in the United States Supreme Court.

         On January 13, 2016, Millender filed a letter-motion with this court attacking the validity of his conviction and asserting claims of ineffective assistance of counsel against the lawyers who represented him in the trial court proceedings and on direct appeal. Civ. Doc. # 2. Regarding his lawyers, Millender alleged that Fowler, his original trial counsel, was ineffective for failing to (1) conduct an adequate investigation into potential defenses and (2) challenge the search of his vehicle as violating his Fourth Amendment rights. Civ. Doc. # 2 at 3-7. Millender also alleged that the lawyer appointed to represent him during proceedings on his withdrawal-of-guilty-plea motion, Laronda R. Martin, was ineffective for failing to (1) investigate the circumstances of the search of his vehicle and his arrest; (2) call the officers involved in the search of his vehicle and his arrest to testify at the plea-withdrawal hearing; and (3) thoroughly cross-examine his former counsel Fowler at the plea-withdrawal hearing. Civ. Doc. # 2 at 1-4. Finally, Millender alleged that the lawyer who represented him on direct appeal, J. Carlton Taylor, was ineffective for (1) failing to move to supplement the appellate record with exculpatory evidence contained in the transcript of his state court suppression motion; (2) submitting an appellate brief that contained typographical errors; and (3) failing to provide him with a copy of his appellate brief before it was filed with the Eleventh Circuit.[2] Civ. Doc. # 2 at 1.

         In an order entered on January 25, 2016 (Civ. Doc. # 3), this court informed Millender that the claims in his letter-motion were properly presented in a motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. And in accordance with Castro v. United States, 540 U.S. 375 (2003), the court notified Millender of its intention to treat his letter-motion as a § 2255 motion and directed him to advise the court whether he wished to proceed on his motion under § 2255, to amend his motion to assert additional claims under § 2255, or to withdraw his motion. Civ. Doc. # 3 at 1-2. The Clerk of Court was directed to provide Millender with the form used for filing § 2255 motions. Id. at 2-3.

         Millender indicated to the court that he wished to proceed under § 2255 (Civ. Doc. # 5), and on February 18, 2016, using the form for filing § 2255 motions, he filed an amended § 2255 motion asserting claims that (1) he was denied effective assistance of counsel in the proceedings in the district court and on appeal;[3] (2) his conviction was obtained by evidence gained under an unconstitutional search and seizure in violation of his Fourth Amendment rights;[4] (3) his guilty plea was unlawfully induced and was not given voluntarily with an understanding of the charges or consequences of his plea;[5] and (4) his conviction was obtained by the unconstitutional failure of the prosecution to disclose favorable evidence to the defense.[6]

         On April 14, 2016, the government filed a response arguing that all of Millender's claims lack merit and that his allegations of ineffective assistance of counsel by his original trial counsel, Fowler, are not reviewable in this § 2255 proceeding because they were considered by the Eleventh Circuit in his direct appeal, where that court rejected Millender's arguments that his guilty plea was not knowing and voluntary and that Fowler had rendered ineffective assistance. Civ. Doc. # 15.

         Over eleven months later, on March 22, 2017, Millender amended his § 2255 motion to add a new claim that Fowler rendered ineffective assistance by failing to challenge the legality of his arrest on grounds that the law enforcement officers who arrested him were acting outside their territorial jurisdiction at the time of his arrest. Civ. Doc. # 21.

         The government filed a response arguing that Millender's new claim is time-barred by the one-year limitation period in 28 U.S.C. § 2255(f) and that, in any event, his arrest was lawful under state law and under the Fourth Amendment. Civ. Doc. # 23.

         II. DISCUSSION

         A. General Standard of Review

         Because collateral review is not a substitute for direct appeal, the grounds for collateral attack on final judgments under 28 U.S.C. § 2255 are limited. A prisoner may have relief under § 2255 if the court imposed a sentence that (1) violated the Constitution or laws of the United States, (2) exceeded its jurisdiction, (3) exceeded the maximum authorized by law, or (4) is otherwise subject to collateral attack. See 28 U.S.C. § 2255; United States v. Phillips, 225 F.3d 1198, 1199 (11th Cir. 2000); United States v. Walker, 198 F.3d 811, 813 n.5 (11th Cir. 1999). “Relief under 28 U.S.C. § 2255 ‘is reserved for transgressions of constitutional rights and for that narrow compass of other injury that could not have been raised in direct appeal and would, if condoned, result in a complete miscarriage of justice.'” Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004) (citations omitted).

         B. Claims of Ineffective Assistance of Counsel

         A claim of ineffective assistance of counsel is evaluated against the two-part test announced in Strickland v. Washington, 466 U.S. 668 (1984). First, a petitioner must show that “counsel's representation fell below an objective standard of reasonableness.” Id. at 689. Second, the petitioner must show that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. See Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000).

         Scrutiny of counsel's performance is “highly deferential, ” and the court indulges a “strong presumption” that counsel's performance was reasonable. Chandler, 218 F.3d at 1314 (internal quotation marks omitted). The court will “avoid second-guessing counsel's performance: It does not follow that any counsel who takes an approach [the court] would not have chosen is guilty of rendering ineffective assistance.” Id. (internal quotation marks and brackets omitted). “Given the strong presumption in favor of competence, the petitioner's burden of persuasion-though the presumption is not insurmountable-is a heavy one.” Id.

         As noted, under the prejudice component of Strickland, a petitioner must show that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. A “reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. The prejudice prong does not focus only on the outcome; rather, to establish prejudice, the petitioner must show that counsel's deficient representation rendered the result of the trial fundamentally unfair or unreliable. See Lockhart v. Fretwell, 506 U.S. 364, 369 (1993) (“[A]n analysis focusing solely on mere outcome determination, without attention to whether the result of the proceeding was fundamentally unfair or unreliable, is defective.”). “Unreliability or unfairness does not result if the ineffectiveness of counsel does not deprive the defendant of any substantive or procedural right to which the law entitles him.” Id. at 372.

         Unless a petitioner satisfies the showings required on both prongs of the Strickland inquiry, relief should be denied. Strickland, 466 U.S. at 687. Once a court decides that one of the requisite showings has not been made, it need not decide whether the other one has been. Id. at 697; Duren v. Hopper, 161 F.3d 655, 660 (11th Cir. 1998).

         The Strickland standard for evaluating claims of ineffective assistance of counsel was held applicable to guilty pleas in Hill v. Lockhart, 474 U.S. 52, 58 (1985). A petitioner alleging ineffective assistance in this context must establish that counsel's performance was deficient (i.e., professionally unreasonable) and that counsel's deficient performance “affected the outcome of the plea process.” Hill, 474 U.S. at 59. To establish prejudice, then, a petitioner “must show that there is a reasonable probability that, but for counsel's errors, he would . . . have pleaded [not] guilty and would . . . have insisted on going to trial.” Id. A mere allegation by a defendant that he would have insisted on going to trial but for counsel's errors is insufficient to establish prejudice; rather, the court will look to the factual circumstances surrounding the plea to determine whether the defendant would have proceeded to trial. See Miller v. Champion, 262 F.3d 1066, 1072 (10th Cir. 2001); United States v. Arvantis, 902 F.2d 489, 494 (7th Cir. 1990).

         A criminal defendant's right to effective assistance of counsel continues through direct appeal. See Evitts v. Lucey, 469 U.S. 387, 396 (1985). Ineffective assistance of appellate counsel may be shown if the movant can “establish . . . that counsel omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker[.] Generally, only when ignored issues are clearly stronger than those presented, will the presumption of effective assistance of counsel be overcome.” Mayo v. Henderson, 13 F.3d 528, 533 (2nd Cir. 1994).

         1. Allegations Against Fowler

         In his § 2255 motion, Millender contends that his original trial counsel, Dustin Fowler, rendered ineffective ineffective assistance by failing to (1) conduct an adequate investigation into potential defenses and (2) challenge the search of his vehicle as violating his Fourth Amendment rights. Civ. Doc. # 2 at 3-7; Civ. Doc. # 8 at 5 (“Ground Two”); Civ. Doc. # 8-2 at 1-2; Civ. Doc. # 8-6 at 7-8. The government argues that Millender's allegations of ineffective assistance by Fowler are not reviewable in this § 2255 proceeding because the same allegations were considered and rejected by the Eleventh Circuit in Millender's direct appeal. Civ. Doc. # 15.

         “The district court is not required to reconsider claims of error that were raised and disposed of on direct appeal.” United States v. Nyhuis, 211 F.3d 1340, 1343 (11th Cir. 2000); see also United States v. Rowan, 663 F.2d 1034, 1035 (11th Cir. 1981). If a claim has been raised on direct appeal and decided adversely to a petitioner, it cannot be relitigated in a collateral attack under § 2255. See Nyhuis, 211 F.3d at 1343. Furthermore, “[a] rejected claim does not merit rehearing on a different, but previously available, legal theory.” Id.

         On direct appeal, Millender argued that his guilty plea was not knowing and voluntary and that the district court erred in rejecting his claim that Fowler rendered ineffective ineffective assistance of counsel and in denying his motion to withdraw his guilty plea. See United States v. Millender, 635 F. App'x 611 (2015). Millender's main contention was that his guilty plea was not knowing and voluntary because Fowler “failed to fully and completely investigate the illegality of the search” of his vehicle under the Fourth Amendment. Id. at 616. According to Millender, had Fowler conducted a full investigation, Millender would not have pleaded guilty but instead would have elected to proceed with a motion to suppress on Fourth Amendment grounds, which, if successful, would have ended the case. Id. at 616-17.

         The Eleventh Circuit held that Millender did not show that Fowler performed deficiently, for purposes of Strickland, because (1) evidence showed that Fowler was aware of the facts and circumstances surrounding the search of Millender's vehicle and his arrest; (2) Millender failed to identify how Fowler was incorrect in his assessment of the search and arrest or the applicable law; (3) it was undisputed that if the defense filed a motion to suppress, it could have triggered severe consequences in the form of an indictment on additional charges by the government, which in turn would have increased Millender's possible sentence;[7] and (4) Millender told Fowler he did not want to risk pursuing suppression if it would increase his sentence.[8] Id. The Eleventh Circuit further held that Millender did not show that, but for Fowler's alleged deficiencies, he would not have pleaded guilty, because (1) Millender failed to show that further investigation by Fowler would have uncovered facts that would have altered Millender's decision to plead guilty and (2) Millender did not show that he would have been likely to prevail on a suppression motion. Id. at 617. Finally, the Eleventh Circuit held that, in view of all the evidence, the district court did not err in concluding that Millender received close assistance of counsel and his guilty plea was knowing and voluntary. Id.

         Thus, the government is correct when arguing that the same allegations of Fowler's ineffective assistance set forth by Millender in his § 2255 motion were raised in Millender's direct appeal and decided adversely to him by the appellate court. Therefore, these claims cannot be relitigated in Millender's § 2255 proceeding. See Nyhuis, 211 F.3d at 1343.

         Regarding the supposed viability of any Fourth Amendment challenge to the search of Millender's vehicle, this court found in relevant part as follows in its order denying Millender's motion to withdraw his guilty plea:

Second and independently, Millender incorrectly assesses the viability of his suppression claim. Millender argues that the search that led to his arrest was coercive and, thus, illegal. After having heard much of the same evidence that Millender would have presented at a suppression hearing, the court finds that, had the suppression motion been brought before this court, the motion would likely not have been successful.
Millender presented a narrative during the hearing describing the search, which occurred after his car ran out of gas late at night, while he was driving alone on an empty street, and in which he contends that his consent may have been obtained by duress or police coercion. Yet the court finds that, even under this fact pattern, the evidence obtained from that search would likely not have been suppressed. Though in most circumstances, police officers must obtain a warrant supported by probable cause to justify a search without consent under the Fourth Amendment, United States v. Magluta, 418 F.3d 1166, 1182 (11th Cir. 2005), there are exceptions to this rule. One of those exceptions, the “automobile exception, ” allows “officers [to] search any container in an operational car without a warrant as long as they have probable cause to believe that the container holds evidence of a crime.” Id.; see also California v. Acevedo, 500 U.S. 565, 579-80 (1991)). “Probable cause for a search exists when under the totality of the circumstances there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Magluta, 418 F.3d at 1182. (internal ...

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