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Jackson v. United States

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

July 23, 2018

WILLIAM E. JACKSON Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          REPORT AND RECOMMENDATIONS

          KATHERINE P. NELSON UNITED STATES MAGISTRATE JUDGE

         William 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).[1] 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 reference).

         After 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.

         Having 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.

         I. Background

         On 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.[2]

         On July 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).

         Prior 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 plea.

(Doc. 43 at 1-2).

         On 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).

         On 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.

         II. Discussion

         Through his § 2255 motion, Jackson alleges that trial counsel[3] 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.”).[4] “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 (2002).[5]

         The 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 observed:

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.[6] 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 ...

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