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Washington v. United States

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

May 17, 2019




         This matter is before the Court on Petitioner's, Bryant Washington's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 and to appoint counsel. (Doc. 66). For the reasons enumerated below, the Court finds that the petitioner's motion is due to be DENIED.


         The petitioner, Bryant Washington (“Washington”), was charged in a two-count indictment in 2005. (Doc. 1). Count One charged Washington with conspiring with other persons to possess with the intent to distribute more than 500 grams of cocaine and/or more than 50 grams of crack cocaine in violation of 21 U.S.C. § 846. (Id.) Count Two charged Washington with possession with the intent to distribute approximately 300 grams of cocaine in violation of 21 U.S.C. § 841(a)(1). (Doc. 1; Doc. 66). On July 28, 2005, Washington pled guilty to Count Two pursuant to a written plea agreement. (Doc. 35-37). The factual resume attached to the guilty plea indicated that the amount of drugs possessed by Washington was 300 grams. (Doc. 35; Doc. 66-1).

         After his guilty plea, the Presentence Investigation Report indicated that Washington was accountable for 500 grams of cocaine. (Doc. 47 at 5). Thereafter, on October 31, 2005, at Washington's sentencing hearing, the Government put forth evidence that the actual amount of drugs involved in Washington's crime was 500 grams. (Doc. 69). As such, Washington's offense level was 26. (Doc. 47 at 7). After a three-level downward adjustment for acceptance of responsibility, Washington's offense level was calculated at 23, with a resulting guideline range of 57 to 71 months imprisonment. (Id. at 7, 14). Washington was sentenced to 57 months imprisonment. (Doc. 54). Washington did not appeal his conviction or sentence.

         On December 29, 2006, Washington filed the instant petition which raises two grounds for relief: (1) that the change, at sentencing, in the amount of cocaine involved in his crime was a violation of the plea agreement by the Government, and (2) that his counsel was ineffective for failing to notify him that his offense level could be raised and for failing to provide the Court with a defense to the adjustment or consulting with his client as to how to correct the adjustment. (Doc. 66 at 1). Washington additionally request counsel be appointed to litigate his § 2255 petition. The Government timely filed a response on March 5, 2006, arguing that Washington's petition should be denied. (Doc. 70, generally). The matter is now ripe for adjudication.[1]

         II. §2255 STANDARD

         Habeas relief is an extraordinary remedy which “may not do service for an appeal.” United States v. Frady, 456 U.S. 152, 165 (1982). A defendant who has waived or exhausted his right to appeal is presumed to stand “fairly and finally convicted.” Id. at 164. Unless a claim alleges a lack of jurisdiction or a constitutional error, the scope of collateral attack is extremely limited. United States v. Addonizio, 442 U.S. 178, 185 (1979).


         Washington requests that he be appointed counsel to pursue his § 2255 claims because “the matter before this court is a complex one and the defendant is not able to correctly address the legal matter before the court”. (Doc. 66 at 1). However, there is no constitutional right to counsel on collateral review. Lawrence v. Florida, 549 U.S. 327, 336-37, 127 S.Ct. 1079, 166 L.Ed.2d 924 (2007); United States v. Webb, 565 F.3d 789, 794 (11th Cir. 2009). “A plaintiff in a civil case has no constitutional right to counsel.” Bass v. Perrin, 170 F.3d 1312, 1320 (11th Cir. 1999). “A court may, however, pursuant to 28 U.S.C. § 1915(e)(1), appoint counsel for an indigent plaintiff. The district court has broad discretion in making this decision and should appoint counsel only in exceptional circumstances.” Id. (internal citations omitted). “Such exceptional circumstances exist ‘where the facts and legal issues are so novel or complex as to require the assistance of a trained practitioner.'” Redmon v. Lake County Sheriff's Office, 414 Fed.Appx. 221, 226, 2011 WL 476601, 5 (11th Cir. 2011) (quoting Fowler v. Jones, 899 F.2d 1088, 1096 (11th Cir. 1990)). “[T]he mere fact that a lawyer's assistance would be helpful does not amount to an ‘exceptional circumstance' where … the core facts of the case are pretty much undisputed and the legal claims are straightforward.” Fischer v. Ellegood, 238 Fed.Appx. 428, 435, (11th Cir. 2007) (citing Bass supra).

         A review of Washington's two-page motion does not reveal any novel or complex circumstances that would make his claim rise to the level of “exceptional” such that counsel should be appointed. Further, Washington's pleading clearly articulates his claims such that this Court may address them without the appointment of counsel. Accordingly, Washington's request for counsel is denied.


         Washington asserts that his sentence violated the terms of his plea agreement because he was held accountable for 500 grams instead of 300 grams of cocaine, the amount which was referenced in his indictment and in the factual resume attached to his plea agreement. (Doc. 66 at 1).

         The law is well settled that under the guidelines through relevant conduct a defendant can be held accountable at sentencing for illegal conduct not in furtherance of the offense of conviction if that conduct was “part of the same course of conduct or common scheme or plan” as the offense of conviction. United States v. Gomez, 164 F.3d 1354, 1356 (11th Cir. 1999); citing U.S.S.G. § 1B1.3(a)(2). In Washington's case the amount of drugs for which he was found accountable was for the same transaction for which he was indicted. Further, at sentencing, the Government put forth evidence that the quantity of cocaine involved in Washington's crime was 500 grams rather than the 300 grams known at the time of Washington's indictment. (Doc. 69 at 5-7). Washington's counsel objected to the conclusion that Washington should be held accountable for 500 grams of cocaine, but the Court expressly rejected that argument and found that the quantity of drugs involved could be considered under the sentencing guidelines. (Id. at 12). Furthermore, Washington was clearly notified both in writing per the plea agreement and verbally at his guilty plea ...

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