United States District Court, N.D. Alabama, Northwestern Division
LOVELACE BLACKBURN UNITED STATES DISTRICT JUDGE.
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.
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); 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
INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL
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.
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.)
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
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.
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); 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.
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).
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 ...