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Arrington v. United States

United States District Court, N.D. Alabama, Northeastern Division

May 17, 2019

CINDY ARRINGTON Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OF OPINION

          L. Scott Coogler United States District Judge

         This Court has for consideration Petitioner Cindy Arrington's (“Arrington's”) motion to vacate, set aside, or correct her sentence filed pursuant to 28 U.S.C. § 2255. (Doc. 1.) The United States has responded in opposition to the motion. (Doc. 5.) For the following reasons, the motion is due to be denied, and no evidentiary hearing is warranted.

         I. Background

         On September 28, 2016, a federal Grand Jury of the Northern District of Alabama indicted Arrington on two charges: one count of conspiring with others to possess and distribute methamphetamine in violation of 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(C) (Count Two), and one count of aiding and abetting the possession of methamphetamine with the intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) (Count Three). Arrington was arrested and made her initial appearance in Court on November 1, 2016. As she was indigent, the Court appointed counsel for Arrington.

         Arrington's counsel assisted her in negotiating a plea agreement with the U.S. Attorney's Office. As part of the plea agreement, the Government agreed to dismiss Count Two of the indictment and make certain recommendations relative to sentencing. Arrington also signed an appeal waiver as part of the plea agreement. By signing the waiver, Arrington agreed to give up the right to challenge her conviction, her sentence, or the way in which her sentence was determined in a § 2255 motion, subject to some exceptions, including claims of ineffective assistance of counsel.

         On December 13, 2016, this Court held a change of plea hearing. At the plea hearing, Arrington admitted to using methamphetamine in the days leading up to the proceeding, in violation of her bond conditions, but she assured the Court that she was not under the influence of any substance at the time of the hearing. This Court reviewed Arrington's rights, made various inquiries of her, and discussed her plea agreement and the appeal waiver that it contained. This Court accepted her guilty plea to Count Three of the indictment and adjudicated her guilty.

         The Court indicated its inclination to remand Arrington to custody pending sentencing in response to her methamphetamine use, which was in violation of her bond conditions. Arrington, through counsel, requested permission to attend an out-of-state drug treatment facility in lieu of incarceration. In sum, Arrington's attorney requested that he be permitted to transport Arrington (at his own expense) to the facility. This Court granted this request and ordered that Arrington report to the facility for in-patient care. The Court further warned Arrington not to leave the facility without permission from court officials and to contact the probation office should she be released from the facility.

         In the days following the plea hearing, a probation officer filed a petition to revoke Arrington's bond based on allegations that, within hours of her arrival at the out-of-state treatment and recovery center on December 13, 2016, Arrington left the facility without participating in drug treatment, and that Arrington further did not report to the Probation Office as ordered by this Court.

         On December 27, 2016, Arrington was arrested. Following a hearing on January 10, 2017, this Court revoked Arrington's bond and remanded her to custody pending sentencing.

         The Presentence Investigation Report (“PSR”) generated in advance of Arrington's sentencing summarized the facts of her bond violation:

The defendant submitted an initial drug screen on November 1, 2016, which tested positive for amphetamine, methamphetamine, and marijuana. . . . On December 13, 2016, the defendant was ordered by Judge Coogler to enter an in-patient drug-treatment program at Pine and Cady Hill in Columbus, Mississippi. However, within several hours of her arrival, the defendant contacted United States Probation Officer Yolanda Pearson, and she expressed a desire to leave the facility. Officer Pearson instructed the defendant to surrender to the United States Marshal Service immediately if she left the program. The defendant did not self-surrender as instructed, and she was ultimately arrested by the United States Marshal Service on December 22, 2016.

(Doc. 60 at 5.) In calculating Arrington's offense level, the PSR cited Arrington's failure to self-surrender as directed after leaving the treatment facility as evidence that Arrington had not clearly accepted responsibility. (Id. at 7-8.) Further noting that the Court was in a unique position to evaluate a defendant's acceptance of responsibility, the PSR omitted a reduction for acceptance of responsibility in its proposed Guideline calculations. (Id. at 7-8, 9.)

         On May 7, 2017, Arrington's counsel filed a Defense Sentencing Memorandum in which he presented mitigating circumstances and argument surrounding Arrington's bond violation in support of a challenge to the proposed offense level computation in the PSR. He made similar arguments at Arrington's sentencing hearing on May 9, 2017. At her hearing, this Court set out its reasoning and overruled Arrington's counsel's objection to the PSR. The Court then made findings regarding the applicable sentencing guidelines and sentenced Arrington to 110 months' imprisonment for Count Three.

         Arrington did not file a direct appeal. Arrington filed the instant § 2255 motion, pro se, on April 13, 2018, raising several claims of ineffective assistance of counsel and the argument that her sentence was disproportionately high. The motion is timely and non-successive. See 28 U.S.C. §§ 2255(f)(1), 2255(h), 2244(b)(3)(A).

         II. Discussion

         A. Standard

         In litigation stemming from a § 2255 motion, “‘[a] hearing is not required on patently frivolous claims or those which are based upon unsupported generalizations. Nor is a hearing required where the [movant's] allegations are affirmatively contradicted by the record.'” Holmes v. United States, 876 F.2d 1545, 1553 (11th Cir. 1989) (quoting Guerra v. United States, 588 F.2d 519, 520-21 (5th Cir. 1979)). However, a petitioner is entitled to an evidentiary hearing if, “‘accept[ing] all of the . . . [movant's] alleged facts as true, '” the movant has “‘allege[d] facts which, if proven, would entitle him to relief.'” Diaz v. United States, 930 F.2d 832, 834 (11th Cir. 1991) (internal citations omitted).

         B. Ineffective Assistance of Counsel Claims

         Claims of ineffective assistance of counsel may be raised for the first time in a § 2255 motion and are therefore not subject to procedural bar for failing to raise them on direct appeal. Massaro v. United States, 538 U.S. 500, 504 (2003). An ineffective assistance of counsel claim has two components: first, the petitioner must show that the counsel's performance was deficient; second, the petitioner must show that the counsel's deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). To satisfy the first component, the defendant must show that “counsel's representation fell below an objective standard of reasonableness.” Id. at 688. The second component is satisfied only ...


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