United States District Court, M.D. Alabama, Eastern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
CHARLES S. COODY UNITED STATES MAGISTRATE JUDGE.
the court is Leslie Moman's pro se motion to
vacate, set aside, or correct her sentence under 28 U.S.C.
§ 2255. Doc. # 1. For the reasons that follow, the court
concludes that Moman's § 2255 motion should be
denied without an evidentiary hearing and this case dismissed
2014, Moman was indicted on charges of conspiracy to
distribute methamphetamine, aiding and abetting the
distribution of methamphetamine, and using a communication
facility to further a drug distribution conspiracy. Doc. #
6-1. Six other codefendants were charged in the seven-count
and her lawyer negotiated a plea agreement with the
government in which Moman agreed (1) to plead guilty to Count
5 of the indictment, aiding and abetting the distribution of
methamphetamine,  and (2) to waive her rights to appeal and
collaterally attack her sentence with limited exceptions.
Doc. # 6-2 at 1-6. At a change of plea hearing on October 27,
2014, Moman pleaded guilty to Count 5. Doc. # 6-3. Following
a sentencing hearing on November 23, 2015, the district court
sentenced Moman to 108 months in prison. Docs. # 6-5 &
6-6. Moman did not appeal.
September 2, 2106, Moman filed this § 2255 motion
arguing she is entitled to a mitigating role reduction in her
offense level in light of retroactive changes to § 3B1.2
of the United States Sentencing Guidelines. Doc. # 1.
response to Moman's § 2255 motion, the government
argues that Moman's claim is procedurally defaulted
because she failed to raise it in the district court or on
direct appeal. Doc. # 6 at 6-7. Ordinarily, where a claim is
not advanced in the trial court or on appeal, it is deemed
procedurally barred in a § 2255 proceeding. See
McKay v. United States, 657 F.3d 1190, 1196 (11th Cir.
2011); Reece v. United States, 119 F.3d 1462, 1467
n.9 (11th Cir. 1997); Mills v. United States, 36
F.3d 1052, 1055-56 (11th Cir. 1994). A petitioner can avoid
this procedural bar by showing both cause for failing to
raise the claim on direct appeal and actual prejudice arising
from that failure. See United States v. Frady, 456
U.S. 152, 167-68 (1982); Mills, 36 F.3d at 1055.
reply to the government's response to her § 2255
motion, Moman asserts the ineffective assistance of her
counsel, for failing to seek a § 3B1.2 mitigating role
reduction at sentencing, as cause excusing the procedural
default of her substantive claim. Doc. # 10 at 3-5.
Ineffective assistance of counsel may satisfy the cause
exception to a procedural bar, but only if the claim of
ineffective assistance is meritorious. See Greene v.
United States, 880 F.2d 1299, 1305 (11th Cir. 1989). To
determine if the claim is meritorious, a court must decide
whether the arguments the petitioner alleges counsel failed
to raise were significant enough to have affected the outcome
of the proceedings. See Miller v. Dugger, 858 F.2d
1536, 1538 (11th Cir. 1988). Thus, this court faces the
question whether Moman's counsel rendered ineffective
assistance by failing to seek a § 3B1.2 mitigating role
reduction at Moman's sentencing.
Strickland Standard on Ineffective Assistance of
of ineffective assistance of counsel is evaluated against the
two-part test announced by the Supreme Court in
Strickland v. Washington, 466 U.S. 668 (1984).
First, a petitioner must show that his counsel's
performance was deficient, i.e., that “counsel's
representation fell below an objective standard of
reasonableness.” Id. at 688. Second, the
petitioner must show he suffered prejudice as a result of the
deficient performance, i.e., 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). The court will avoid
second-guessing counsel's performance. Id. The
prejudice prong, moreover, 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 has been.
Id. at 697.
Mitigating Role Reduction Under U.S.S.G. §
Sentencing Guidelines provide for a decrease in a
defendant's offense level when the defendant plays a
minimal or minor role in any criminal ...