United States District Court, M.D. Alabama, Southern Division
KAMARIAN D. MILLENDER, Petitioner,
UNITED STATES OF AMERICA, Respondent.
RECOMMENDATION OF THE MAGISTRATE JUDGE
CHARLES S. COODY UNITED STATES MAGISTRATE JUDGE.
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 &
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.
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.
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 &
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.
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.
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. Civ. Doc. # 2 at 1.
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.
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; (2) his conviction was obtained
by evidence gained under an unconstitutional search and
seizure in violation of his Fourth Amendment
rights; (3) his guilty plea was unlawfully induced
and was not given voluntarily with an understanding of the
charges or consequences of his plea; and (4) his conviction was
obtained by the unconstitutional failure of the prosecution
to disclose favorable evidence to the defense.
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.
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.
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.
General Standard of Review
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).
Claims of Ineffective Assistance of Counsel
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
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.
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.
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.
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).
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).
Allegations Against Fowler
§ 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.
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.”
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.
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; and (4) Millender told Fowler he did not
want to risk pursuing suppression if it would increase his
sentence. 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.
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.
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
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.