United States District Court, S.D. Alabama, Southern Division
WILLIAM E. JACKSON Movant,
UNITED STATES OF AMERICA, Respondent.
REPORT AND RECOMMENDATIONS
KATHERINE P. NELSON UNITED STATES MAGISTRATE JUDGE
E. Jackson (“Jackson”), a federal prisoner
proceeding pro se, has filed a Motion to Vacate, Set
Aside, or Correct Sentence under 28 U.S.C. § 2255 and
supporting memorandum (Doc. 72). The motion has been referred
for appropriate action to the undersigned Magistrate Judge
who, under S.D. Ala. GenLR 72(a)(2)(R), is authorized to
require responses, issue orders to show cause and any other
orders necessary to develop a complete record, and to prepare
a report and recommendation to the District Judge as to
appropriate disposition of these proceedings brought under 28
U.S.C. § 2255, in accordance with 28 U.S.C. §
636(b)(1)(B)-(C), Rule 10 of the Rules Governing Section 2255
Proceedings for the United States District Courts.
See S.D. Ala. GenLR 72(b); (4/27/2016 electronic
conducting preliminary review in accordance with Rule 4(b) of
the Rules Governing Section 2255 Proceedings, the undersigned
entered an order setting deadlines for the United States to
file a response to the motion, and for Jackson to file a
reply to the United States' response. (Doc. 73). As the
United States has timely filed its response (Doc. 74) and
Jackson has timely filed his reply (Doc. 77), the § 2255
motion is now under submission.
reviewed the parties' submissions in accordance with Rule
8 of the Rules Governing Section 2255 Proceedings, the
undersigned finds that an evidentiary hearing is not
warranted and that Jackson's § 2255 motion (Doc. 72)
is due to be DISMISSED with prejudice. The
undersigned further finds that Jackson is not entitled to a
certificate of appealability or to proceed in forma
pauperis on appeal.
March 27, 2014, Jackson was charged, via a one count
indictment, with being a prohibited person in possession of a
firearm, in violation of 18 U.S.C. § 922(g)(1). At
arraignment, Assistant Federal Defender Fred Tiemann was
appointed to represent Jackson. (Docs. 8, 10). Within a few
weeks, Mr. Tiemann was permitted to withdraw from
Jackson's representation, and Criminal Justice Act Panel
Attorney P. Bradley Murray (“trial counsel”) was
appointed to represent Jackson.
16, 2014, pursuant to a written plea agreement, Jackson pled
guilty to violating 18 U.S.C. § 922(g)(1). (Docs. 33,
34). On October 10, 2014, Jackson moved to withdraw his plea.
(Doc. 48). On October 15, 2014, the Court denied the motion
in a detailed order, finding that entry of the plea was
counseled, knowing, and voluntary. (Doc. 51).
to sentencing, the United States Probation Office prepared a
draft Presentence Investigation Report (“PSI”).
(Doc. 42). On October 1, 2014, trial counsel filed several
objections to the draft PSI. (Doc. 43). Specifically, trial
counsel objected as follows:
16. 24: Defendant Jackson objects to the failure to provide
the appropriate 2 or 3 point reduction for acceptance of
responsibility. Jackson recognizes that he violated certain
conditions of his pretrial release, but asserts that there is
adequate support for the reduction even so. Jackson's
plea and related statement of conduct support the acceptance
of responsibility reduction and his total offense level
should ultimately be reduced by 2 or 3 points.
17. Defendant Jackson objects to his base offense level of 20
because he does not have a sufficient, qualifying felony
offense to support a [base offense level] 20 starting point
upon fair application of §2K2.1(b)(6)(B). The correct
[base offense level] ¶ 14.
18. Defendant Jackson objections to the 4 point addition
because there is insufficient support to show that the
firearm was connected with another qualifying felony offense.
There is no evidence that the firearm facilitated the
possession of marijuana offense. The 4 point enhancement
should not apply as a specific offense characteristic.
Jackson's final guideline calculation should be 12, or,
at a maximum 14 if the Court concludes he has lost acceptance
of responsibility. The guideline calculation of 14 would be
consistent with the calculation the United States Probation
Office provided Jackson in the attached Sentencing Guideline
Worksheet. Jackson objects in a general sense to a sentencing
calculation that is nearly 3 times the calculation presented
to him in the attached [Sentencing Guidelines Worksheet].
Fundamental fairness requires that the Court depart downward
to the guideline range of 12 or 14 with a criminal history
category of VI and a corresponding guideline range of 30-37
months or 37-46 months. Defendant Jackson submits that the
Court can sentence him within one of these ranges and achieve
the §3553(a) goals of sentencing and recognize his
reliance on the [Sentencing Guidelines Worksheet] report
projections in the decision to resolve the case with a guilty
(Doc. 43 at 1-2).
December 15, 2014, the Court held a sentencing hearing and
the objections were discussed on the record. The Court
overruled Jackson's objections pertaining to the base
offense level calculation and loss of acceptance of
responsibility. The United States explained that it would not
offer evidence related to the four level firearm enhancement
and the Court noted that it would adjust the PSI to eliminate
that enhancement. After resolving the objections, the Court
sentenced Jackson to 70 months in the custody of the Bureau
of Prisons, with a three year term of supervised release to
follow. (Doc. 57).
December 29, 2014, through trial counsel, Jackson filed a
notice of appeal of his conviction and sentence. (Doc. 53).
Trial counsel was permitted to withdraw soon thereafter and
William Gregory Hughes (“appellate counsel”) was
appointed to represent Jackson in his appeal. On August 11,
2015, the Court of Appeals for the Eleventh Circuit affirmed
Jackson's conviction and sentence. The mandate issued on
November 6, 2015.
his § 2255 motion, Jackson alleges that trial
counsel was ineffective and that his due process
rights were violated as a result. In order to establish a
claim of ineffective assistance of counsel, a petitioner is
required to show (1) that his attorney's representation
fell below “an objective standard of
reasonableness” and (2) that a reasonable probability
exists that but for counsel's unprofessional conduct, the
result of the proceeding would have been different.
Strickland v. Washington, 466 U.S. 668, 687 (1984);
see also Jones v. United States, 478
Fed.Appx. 536, 539-40 (11th Cir. 2011) (“To make a
successful claim of ineffective assistance of counsel, a
defendant must show that: (1) his counsel's performance
was deficient; and (2) the deficient performance prejudiced
his defense.”). “The burden of persuasion is on a
section 2255 petitioner to prove, by a preponderance
of the competent evidence, both that counsel's
performance was unreasonable, and that she was prejudiced by
that performance.” Demar v. United States, 228
Fed.Appx. 940, 950 (11th Cir. 2007) (quotation marks,
brackets and citations omitted); see also Johnson v.
Alabama, 256 F.3d 1156, 1176 (11th Cir.2001) (“The
petitioner bears the burden of proof on the
‘performance' prong as well as the
‘prejudice' prong of a Strickland claim,
and both prongs must be proved to prevail.”), cert.
denied sub nom. Johnson v. Nagle, 535 U.S. 926
Strickland v. Washington 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). The Eleventh Circuit has held that
“‘counsel owes a lesser duty to a client who
pleads guilty than to one who decides to go to trial, as in
the former case counsel need only provide his client with an
understanding of the law in relation to the facts, so that
the accused may make an informed and conscious choice between
accepting the prosecution's offer and going to
trial.'” Carter v. United States, 288 F.
App'x. 648, 649 (11th Cir. 2008), quoting
Wofford v. Wainwright, 748 F.2d 1505, 1508 (11th
Cir.1984). The Court of Appeals for the Eleventh Circuit has
The performance prong of the ineffective assistance standard
entails a deferential review of counsel's conduct. In
assessing the reasonableness of counsel's performance,
courts must indulge a strong presumption that counsel's
conduct falls within the wide range of reasonable
professional assistance. Thus, the Sixth Amendment does not
require criminal defense attorneys to take a nothing to lose
approach and raise every available nonfrivolous defense.
With respect to prejudice, courts ask whether there is a
reasonable probability that, but for counsel's
unprofessional errors, the result of the ...