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Moman v. United States

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

October 3, 2018

LESLIE MOMAN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          RECOMMENDATION OF THE MAGISTRATE JUDGE

          CHARLES S. COODY UNITED STATES MAGISTRATE JUDGE.

         Before 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.[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 with prejudice.

         I. BACKGROUND

         In July 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 indictment.[2] Id.

         Moman 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, [3] 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.

         On 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.

         In its 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.

         In her 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.

         II. DISCUSSION

         A. Strickland Standard on Ineffective Assistance of Counsel

         A claim 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 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). 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.

         B. Mitigating Role Reduction Under U.S.S.G. § 3B1.2

         The Sentencing Guidelines provide for a decrease in a defendant's offense level when the defendant plays a minimal or minor role in any criminal ...


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