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Denton v. United States

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

June 11, 2018

RICKY WALTER DENTON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          SHARON LOVELACE BLACKBURN UNITED STATES DISTRICT JUDGE.

         This case is presently pending before the court on petitioner Ricky Walter Denton's Renewed and Amended Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2255. (Doc. 30.)[1]

         For the reasons set forth herein, the court finds that Denton's claim of ineffective assistance of appellate counsel is without arguable merit and his remaining claims are procedurally barred. Therefore, the court will summarily dismiss his ineffective assistance claim and will order Denton to show cause, in writing, why his remaining claims should not be dismissed summarily. See 28 U.S.C. § 2255(b);[2] Pava v. United States, No. 8:07-CR-289-T-24 AEP, 2011 WL 1337510, *1 (M.D. Fla. Apr. 7, 2011)(“The Court will not cause notice [of petitioner's § 2255 Motion to Vacate] to be served upon the United States Attorney and shall proceed to address the matter, because a review of this motion and the record in this case conclusively shows that Petitioner is not entitled to relief.”).

         A. INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL

         The Supreme Court has held “that an ineffective-assistance-of-counsel claim may be brought in a collateral proceeding under § 2255, whether or not the petitioner could have raised the claim on direct appeal.” Massaro v. United States, 538 U.S. 500, 504 (2003). Therefore, unlike his remaining claims, Denton's claim of ineffective assistance of appellate counsel is not procedurally barred. However, the court's review of this claim shows conclusively that it is without arguable merit and due to be summarily dismissed.

         Denton argues that his appellate counsel was ineffective for failing to argue effectively his claim of error based on this court's denial of his request for access to legal materials in preparation for his trial. (Doc. 30-1 at 61.) Specifically, he contends, “During [oral] argument the panel [of the Eleventh Circuit] asked [Denton's appellate counsel, ] ‘[H]ow did the denial of law books prejudice Mr. Denton[?]'” and his counsel did not respond. (Id.) He claims that counsel should have argued that “the denial of access to law books denied [him] his right to represent himself fairly.” (Id.)

         With regard to a claim of ineffective assistance of appellate counsel, the Eleventh Circuit has held:

Strickland [v. Washington, 466 U.S. 668 (1984), ] governs a claim of ineffective assistance of appellate counsel. Dell v. United States, 710 F.3d 1267, 1273 (11th Cir. 2013). Under Strickland, a petitioner must show (1) his attorney's performance was deficient, and (2) the deficient performance prejudiced the petitioner's defense. 466 U.S. at 687. When considering deficient performance, a court must presume counsel's performance was “within the wide range of reasonable professional assistance.” Id. at 689. Appellate counsel has no duty to raise every non-frivolous issue and may reasonably weed out weaker (albeit meritorious) arguments. See Philmore v. McNeil, 575 F.3d 1251, 1264 (11th Cir. 2009). “Generally, only when ignored issues are clearly stronger than those presented, will the presumption of effective assistance of counsel be overcome.” Smith v. Robbins, 528 U.S. 259, 288 (2000)(quoting Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986)); see also Burger v. Kemp, 483 U.S. 776, 784 (1987)(finding no ineffective assistance of counsel when the failure to raise a particular issue had “a sound strategic basis”). A petitioner satisfies the prejudice prong upon showing 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.

         Overstreet v. Warden, 811 F.3d 1283, 1287 (11th Cir. 2016)(emphasis added; parallel Supreme Court Reporter citations omitted). “A reasonable probability is a probability sufficient to undermine confidence in the outcome. This inquiry requires [the court] to consider the merits of the omitted claim, and [it] will find counsel's performance prejudicial if the neglected claim would have a reasonable probability of success on appeal.” Brooks v. Comm'r, Alabama Dep't of Corr., 719 F.3d 1292, 1300 (11th Cir. 2013)(internal quotations and citations omitted). Although the Strickland test has two distinct parts, “there is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one. In particular, a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.” Strickland, 466 U.S. at 697. “If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed.” Id.

         The court finds that Denton has not alleged, and cannot show, prejudice resulting from appellate counsel's alleged failure to argue effectively that the denial of law books prejudiced Denton's defense. The law is well established that “a criminal defendant who seeks to proceed pro se has no right to access a law library to aid him in his own defense at trial where he has already been provided the option of legal counsel.” Smith v. Hutchins, 426 Fed.Appx. 785, 789 (11th Cir. 2011)(citing Edwards v. United States, 795 F.2d 958, 961 nn.1 and 3 (11th Cir.1986))(footnote omitted);[3] see Edwards, 795 F.2d at 961 n.3 (citing Bounds v. Smith, 430 U.S. 817, 828 (1977) and Hooks v. Wainwright, 775 F.2d 1433, 1435 (11th Cir. 1985)), cited in Daker v. Warren, 660 Fed.Appx. 737, 740 (11th Cir. 2016), cert. denied, 138 S.Ct. 94 and 138 S.Ct. 98 (2017); United States v. Stringer, 546 Fed.Appx. 896, 897 (11th Cir. 2013); United States v. Denton, 535 Fed.Appx. 832, 835 (11th Cir. 2013). Indeed, in Denton's direct appeal, the Eleventh Circuit held:

Under the Sixth Amendment, as interpreted in Faretta, criminal defendants have a right to waive the assistance of counsel and represent themselves when they voluntarily elect to do so with knowledge of the disadvantages of self-representation. Faretta, 422 U.S. at 807, 835, 95 S.Ct. at 2527, 2541. Nothing in Faretta or the Sixth Amendment, however, expressly establishes that a defendant who has knowingly elected to proceed pro se has a right of access to a law library or legal materials. See Kane v. Garcia Espitia, 546 U.S. 9, 10, 126 S.Ct. 407, 408, 163 L.Ed.2d 10 (2005) (noting, in the context of habeas review under 28 U.S.C. § 2254, that “Faretta says nothing about any specific legal aid that the State owes a pro se criminal defendant” and so does not “clearly establish” a pro se defendant's right to access a law library). Faretta itself recognized that “[w]hen an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel.” 422 U.S. at 835, 95 S.Ct. at 2541.
We have held that a pro se criminal defendant has no constitutional right of access to a law library or legal materials where counsel has been offered. Edwards v. United States, 795 F.2d 958, 961 nn.1 & 3 (11th Cir. 1986)(rejecting a collateral challenge to a criminal conviction based on the denial of library access while the petitioner proceeded pro se at trial, and concluding that “[w]hen counsel is offered, the alternative of a library is not mandatory”). Although Denton takes issue with the soundness and adequacy of our decision in Edwards, we are bound by that decision under the prior panel precedent rule unless and until it is overruled by the Supreme Court or this Court sitting en banc. Cohen v. Office Depot, Inc., 204 F.3d 1069, 1076 (11th Cir. 2000); see also Smith v. GTE Corp., 236 F.3d 1292, 1302-03 (11th Cir. 2001)(rejecting a “wrong result” or “overlooked reason” exception to the prior panel precedent rule); Wascura v. Carver, 169 F.3d 683, 687 (11th Cir. 1999)(responding to the argument that the reasoning of a prior panel decision was “unclear and inadequate to support its holding” by stating that “[w]e have no occasion to pass on that criticism, because we are bound by the [prior panel] decision regardless of whether we agree with it”).

Denton, 535 Fed.Appx. at 835 (emphasis added).

         In this case, given the Eleventh Circuit's decision on appeal, Denton cannot show that, but for the alleged deficient performance of his appellate counsel at oral argument - her failure to argue that denying Denton access to a law library prejudiced his right to represent himself, “there is a reasonable probability that . . . the result of [his appeal] would have been different.” Strickland, 466 U.S. at 694. Even if appellate counsel had argued to the Circuit Court that denial of access to a law library had prejudiced Denton's ability to represent himself at trial, this “prejudice” was the result of Denton's choice to eschew appointed trial counsel and represent himself - it was not ...


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