Coble v. United States

          ORDER

          KRISTI K. DuBOSE, CHIEF UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on pro se Petitioner Jeffrey Dean Coble (Coble)'s motion to vacate under 28 U.S.C. § 2255 (Doc. 54), Respondent United States of America (the Government)'s Response (Doc. 57), Coble's Reply (Docs. 65, 66), and Coble's Supplement/Amendment (Docs. 79, 80); Coble's motion for arrest of judgment (Doc. 77); Coble's motion for expedited evidentiary hearing (Doc. 81); Coble's motion to appoint counsel (Doc. 86); and Coble's motion for evidentiary hearing (Doc. 87).

         I. Background

         On February 22, 2016, Coble plead guilty to one count of distribution of child pornography, and on June 30, 2016, was sentenced to 240 months' imprisonment. (Docs. 23, 24, 41). Coble did not appeal. Indeed, per Coble, "Movant has not had a Direct Appeal or any other post-conviction action challenging his CONVICTION." (Doc. 54 at 5, 11). On July 3, 2017, Coble moved to vacate per Section 2255. (Doc. 54).^[1] Thereafter, Coble filed an amended petition and moved for appointment of counsel as well as an evidentiary hearing.

         In his petition, Coble asserts ten Section 2255 claims with regard to his indictment, ineffective assistance of counsel, prosecutorial misconduct, a violation of the Speedy Trial Act, and judicial misconduct. Specifically Coble alleges: #1) his indictment was legally insufficient (did not fully state that a crime was committed); #2, #3, #4) he was denied effective assistance of counsel (counsel failed to investigate the indictment's sufficiency and the pre-custody Miranda warning he received, and mislead him with a false statement “about the penalty phase[]”); #5, #6) prosecutorial misconduct in that the prosecutor mislead the Grand Jury to return a faulty indictment and used it to “strengthen and bolster [the] case[;]”; #7) the indictment was returned 10 days late, violating the Speedy Trial Act; and #8, #9, #10) Judicial Misconduct because the Court had an “in chambers meeting to practice law from the bench while maintaining goal of harpooning plea negotiations”, demanded a guidelines cross-reference which greatly increased sentence, and the violated the ends of justice doctrine.

         II. Relevant Law ^[2]

         Coble is a federal prisoner proceeding pro se. “[C]ourts should construe a habeas petition filed pro se more liberally....” See, e.g., Gunn v. Newsome, 881 F.2d 949, 961 (11th Cir. 1989). Nevertheless, habeas relief -- collateral relief -- is an extraordinary remedy which “may not do service for a [ ] [direct] appeal.” United States v. Frady, 456 U.S. 152, 165 (1982). A petitioner who has waived or exhausted his right to appeal is presumed to stand “fairly and finally convicted.” Id. at 164. “[U]nless the claim alleges a lack of jurisdiction or constitutional error, the scope of collateral attack has remained far more limited ... [A]n error of law does not provide a basis for collateral attack unless the claimed error constituted a fundamental defect which inherently results in a complete miscarriage of justice.” United States v. Addonizio, 442 U.S. 178, 185 (1979) (internal citation and quotation omitted). See also Burke v. United States, 152 F.3d 1329, 1331 (11th Cir. 1998) (“Nonconstitutional claims can be raised on collateral review only when the alleged error constitutes a ‘fundamental defect which inherently results in the miscarriage of justice or an omission inconsistent with the rudimentary demands of fair procedure[ ]'”) (internal citations omitted). “A habeas petitioner must present a claim in clear and simple language such that the district court may not misunderstand it.” Dupree v. Warden, 715 F.3d 1295, 1299 (11th Cir. 2013). However, the Court “liberally construe[s] petitions filed pro se.” Id.

         Notably, a petitioner must show that one of the following occurred: 1) “the sentence was imposed in violation of the Constitution or laws of the United States, ” 2) “the court was without jurisdiction to impose such sentence, ” or 3) “the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack[.]” 28 U.S.C. § 2255(a). Section 2255 further requires that a federal prisoner file a § 2255 motion to vacate his sentence within one year of, inter alia, the date his judgment of conviction becomes final. 28 U.S.C. § 2255(f)(1). Ordinarily, a conviction becomes final once the opportunity for direct appeal has been exhausted. Akins v. United States, 204 F.3d 1086, 1089 n.1 (11th Cir. 2000).

         Nevertheless, a Section 2255 petition does not take the place of a direct appeal. Indeed, "[a] careful reading of § 2255, and relevant case law, suggests that a request for habeas relief should usually follow a request for relief via direct appeal. See 28 U.S.C. § 2255(f); Akins, 204 F.3d at 1089 n.1; Washington v. United States, 243 F.3d 1299, 1300 (11th Cir. 2001)." Tarabein v. United States, 2019 WL 2871151, *3 and note 3 (S.D. Ala. Jun. 17, 2019), adopted by 2019 WL 2870100 (S.D. Ala. Jul. 3, 2019). In keeping with this procedural default rule, a petitioner “generally must advance an available challenge to a criminal conviction or sentence on direct appeal or else the defendant is barred from presenting that claim in a § 2255 proceeding.” McKay v. United States, 657 F.3d 1190, 1196 (11th Cir. 2011) (quoting Lynn v. United States, 365 F.3d 1225, 1234 (11th Cir. 2004)). Coble failed to seek relief of any of his claims on direct appeal, suggesting some of his 2255 claims are procedurally defaulted. Bousley v. United States, 523 U.S. 614, 612 (1998); United States v. Bushert, 997 F.2d 1343, 1351 (11th Cir. 1993). See, e.g., Mills v. United States, 36 F.3d 1052, 1055 (11th Cir. 1994) (if available challenges to a federal conviction or sentence are not advanced on direct appeal, those claims are procedurally defaulted in a Section 2255 proceeding); United States v. Davis, 2010 WL 5239243, *3-4 (S.D. Ala. Dec.14, 2010) (concluding that a petitioner procedurally defaulted on his claim that his guilty plea was involuntary because he failed to challenge it on direct review); Scott v. United States, 2008 WL 7258799, *19 (S.D. Ala. Nov. 3, 2008) (same). However, as explained by the Eleventh Circuit in McKay v. United States, 657 F.3d at 1196 (footnote omitted) there are exceptions to procedural default:

…. The exceptions are: (1) for cause and prejudice, or (2) for a miscarriage of justice, or actual innocence. See Lynn, 365 F.3d at 1234. Under the cause and prejudice exception, a § 2255 movant can avoid application of the procedural default bar by “show[ing] cause for not raising the claim of error on direct appeal and actual prejudice from the alleged error.” Id. Under the actual innocence exception-as interpreted by current Supreme Court doctrine-a movant's procedural default is excused if he can show that he is actually innocent either of the crime of conviction or, in the capital sentencing context, of the sentence itself…[ ] See Dretke v. Haley, 541 U.S. 386, 388, 124 S.Ct. 1847, 158 L.Ed.2d 659 (2004)…..^[3]

         Moreover, “failure to raise an ineffective-assistance-of-counsel claim on direct appeal does not bar the claim from being brought in a later, appropriate proceeding under § 2255.” Massaro, 538 U.S. at 509. Indeed, “in most cases a motion brought under § 2255 is preferable to direct appeal for deciding claims of ineffective assistance.” Id. at 504. See also, Milligan v. United States, 213 Fed.Appx. 964, 966 (11th Cir.2007) (This Court does not consider claims of ineffective assistance of counsel on direct appeal unless those claims were first raised in the district court with an opportunity to develop a factual record relevant to the merits of the claim) (citing United States v. Perez-Tosta, 36 F.3d 1552, 1563 (11th Cir.1994)).

         The filing of a Section 2255 petition does not automatically entitle a petitioner to an evidentiary hearing. Rather, as set forth in Reed v. United States, 2019 WL 5457783, 81 (11th Cir. Oct. 24, 2019):

The district court is not required to grant an evidentiary hearing in a § 2255 case where the files and records of the case conclusively show that the movant is entitled to no relief. Rosin, 786 F.3d at 877. However, the district court should grant an evidentiary hearing and rule on the merits of a movant's claim if he alleges reasonably specific, non-conclusory facts that, if true, would entitle him to relief. Winthrop-Redin, 767 F.3d [1210, 1216 (11th Cir. 2014)]. Accordingly, the district court must accept as true the movant's specific factual allegations in determining whether he is entitled to an evidentiary hearing. Griffith v. United States, 871 F.3d 1321, 1330 n.9 (11th Cir. 2017). Nevertheless, an evidentiary hearing is unnecessary where the movant's allegations are affirmatively contradicted by the record, based on unsupported generalization, or patently frivolous. Winthrop-Redin, 767 F.3d at 1216. Dismissal is also appropriate where a movant has presented conclusory allegations unsupported by specific factual assertions. Id.

         III. Discussion ^[4]

         A. Ineffective Assistance of Counsel

         In contending ineffective assistance of counsel, Coble asserts that: (#2) his counsel failed to investigate the indictment's sufficiency; (#3) his counsel failed to investigate the pre-custody Miranda warning he received; (#4) his counsel made a false and misleading statement “about the penalty phase.”

To prevail on a claim of ineffective assistance of counsel, a habeas petitioner must demonstrate both that (1) counsel's performance was deficient because it fell below an objective standard of reasonableness, and (2) prejudice resulted because there is a reasonable probability that, but for the deficient performance, cause the result of the proceeding would have been different. Hinson v. Alabama, 571 U.S. 263, 271-272 (2014)(citing Padilla v. Kentucky, 559 U.S. 356, 366, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010); Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).

The proper measure of attorney performance is simply reasonableness under prevailing professional norms considering all the circumstances. Hinson at 272. A court must “judge the reasonableness of counsel's conduct on the facts of the particular case, viewed as of the time of counsel's conduct.” Roe v. Flores- Ortega, 528 U.S. 470, 477, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000) (quoting Strickland, 466 U.S. at 690). This judicial scrutiny is highly deferential, and the Court adheres to a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689-90. To be objectively unreasonable, the performance must be such that no competent counsel would have taken the action. Rose v. McNeal, 634 F.3d 1224, 1241 (11th Cir.2011); Hall v. Thomas, 611 F.3d 1259, 1290 (11th Cir.2010). Additionally, an attorney is not ineffective for failing to raise or preserve a meritless issue. United States v. Winfield, 960 F.2d 970, 974 (11th Cir.1992); Ladd v. Jones, 864 F.2d 108, 109-10 (11th Cir.1989).

To establish prejudice under Strickland, petitioner must show more than that the error had “some conceivable effect on the outcome of the proceeding.” Marquard v. Sec'y for the Dep't of Corr.,429 F.3d 1278, 1305 (11th Cir.2005) (quotation marks omitted). Rather, the petitioner must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Hinton, 134 S.Ct. at 1089. “A reasonable probability is a probability sufficient to ...