United States District Court, N.D. Alabama, Northeastern Division
MEMORANDUM OF OPINION
Scott Coogler United States District Judge
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
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
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.
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.
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
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.
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
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.)
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.
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).
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
Ineffective Assistance of Counsel 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 ...