United States District Court, M.D. Alabama, Northern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
Russ Walker United States Magistrate Judge.
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.
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. The district court granted
the downward departure and sentenced Berry to 36 months in
prison. Berry took no appeal.
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.
General Standard of Review
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).
Ineffective Assistance of Counsel
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
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.
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).
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 ...