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Berry v. United States

United States District Court, M.D. Alabama, Northern Division

September 21, 2018

DOUGLAS MATTHEW BERRY, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          RECOMMENDATION OF THE MAGISTRATE JUDGE

          Susan Russ Walker United States Magistrate Judge.

         Before the court is Douglas Matthew Berry's (“Berry”) pro se motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence by a person in federal custody. Doc. No. 1.[1]

         I. BACKGROUND

         On March 30, 2015, Berry pleaded guilty under a plea agreement to conspiracy to distribute and possess with intent to distribute methamphetamine, in violation of 21 U.S.C. §§ 846 & 841(a)(1). At sentencing on July 30, 2015, the Government moved for a downward departure under U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e), based on Berry's substantial assistance.[2] The district court granted the downward departure and sentenced Berry to 36 months in prison. Berry took no appeal.

         On April 25, 2016, Berry filed this § 2255 motion asserting as his sole claim that his trial counsel rendered ineffective assistance by failing to ensure that a two-level firearm enhancement under U.S.S.G § 2D1.1(b)(1) was removed from his presentence investigation report (“PSI”). Doc. No. 1 at 4. For the reasons that follow, the Magistrate Judge recommends that Berry's § 2255 motion be denied without an evidentiary hearing and that this case be dismissed with prejudice.

         II. DISCUSSION

         A. General Standard of Review

         Because 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 is entitled to 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).

         B. Ineffective Assistance of Counsel

         1. Strickland Standard

          A claim 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 Cir. 2000).

         Scrutiny 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). “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.

         As 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).

         Unless 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 ...


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