Opinion
Case Nos. 1:05-CV-14 WLS 28 U.S.C. § 2255, 1:03-CR-7 WLS.
September 16, 2005
REPORT AND RECOMMENDATION
Petitioner Scott was indicted in this court on April 2, 2003, and charged with Four Counts of drug offenses in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. (R-1). He entered into a Plea Agreement with the Government on December 29, 2003 (R-61), wherein he acknowledged his guilt of distributing more than 5 grams of crack cocaine as charged in Count III of the Indictment in violation of 21 U.S.C. § 841(a)(1), 21 U.S.C. § 841(b)(1)(B)(iii), and 18 U.S.C. § 2. Petitioner Scott also acknowledged that his plea of guilty would subject him to a sentence of not less than five years and not more than forty years imprisonment. He waived "any right to a direct appeal or other review of defendant's sentence by the District Court or Court of Appeals after conviction except in the case of an upward departure from the guidelines pursuant to U.S.S.G. § 5K2.0 and 4A1.3, and any claim of ineffective assistance of counsel." (R-61, at page 3). At ¶ (7) of the Plea Agreement, Petitioner Scott stipulated that on February 5, 2003, he had provided co-defendant Hall a net weight of 28 grams of cocaine base or "crack".
Petitioner Scott was originally sentenced on March 19, 2004 to a term of imprisonment of 235 months. (R-70). However, as the result of a Rule 35 Motion based upon Petitioner's Scott's assistance and cooperation with the Government, his sentence was reduced on August 16, 2004, to 188 months imprisonment (R-76). Petitioner did not file notice of appeal regarding his sentence during the ten day period prescribed by law following his original sentencing on March 19, 2004, or after the Rule 35 reduction of his sentence on August 16, 2004. Petitioner Scott did, however, timely filed a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 on February 7, 2005 (R-77), together with a Memorandum In Support of Petitioner's § 2255 (R-78).
In his Memorandum in support of his § 2255 Motion, Petitioner Scott raises several claims of ineffective assistance of counsel. He alleges on page 5 of his Memorandum, "In the case at hand, when the Petitioner asked counsel to appeal, he failed to do so." In section 7 of his Memorandum, Petitioner Scott alleges that Attorney Tracy talked or "duped" Petitioner out of his appeal. Under the mandate of Montemoino v. United States, 68 F. 3d 416 (11th Cir. 1995), Petitioner Scott was granted an evidentiary hearing on the question as to whether he, in fact, timely requested that his Attorney file an appeal on his behalf. Petitioner raised other issues of ineffective assistance of counsel relating to alleged Apprendi violations.
In Thompson v. Nagle, 118 F.3d 1442, 1450 (11th Cir. 1997), the Eleventh Circuit Court of Appeals held:
The Sixth and Fourteenth Amendments entitle a criminal defendant to the effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984); Routly v. Singletary, 33 F.3d 1279 (11th Cir. 1994). A defendant claiming ineffective assistance of counsel must show first that counsel's performance was "outside the wide range of professionally competent assistance." Strickland, 466 U.S. at 690, 104 S.Ct. at 2066. Second, a criminal defendant must show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." Id. at 694, 104 S.Ct. at 2068. The burden is on the petitioner to establish both of these elements, Atkins v. Singletary, 965 F.2d 952, 958 (11th Cir. 1992), and the burden is a heavy one. "Counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, 466 U.S. at 690, 104 S.Ct. at 2066; see also Horton v. Zant, 941 F.2d 1449, 1460 (11th Cir. 1991) (Reviewing courts "should presume effectiveness and should avoid second-guessing with the benefit of hindsight.").
Petitioner Scott alleges in his Memorandum in Support of his § 2255 Motion, at page 2, that "attorney Tracy advised Petitioner not to address plain violations of his Sixth Amendment right under the U.S. Constitution not to have his punishment increased by findings of the Court that Petitioner distributed more drugs than he in fact pled guilty to. See Apprendi v. New Jersey, 530 U.S. 466, 490." Petitioner clarifies this claim in his testimony at the hearing held on his § 2255 Motion, when he stated, "I asked Mr. Tracy in December, I mean in March, after my sentencing, that he file an appeal. But he told me that it was no need to file an appeal. The best thing was to cooperate." (June 27, 2005 Hearing Transcript, at 8). "I asked him to file an appeal. . . . Because we went over those grounds earlier. And when I first acknowledged ineffective assistance of counsel was during sentencing. Because I asked him to object to my PSI. . . . I wanted to object to the career criminal, and the addition of drugs. Because in my plea agreement I pleaded to twenty-eight grams. I was sentenced to a hundred and fifteen grams."
Petitioner Scott was clearly referring to the PSI, ¶¶ 10 and 16 determination of the Relevant Conduct calculation of the total drug amounts involved in all of the Counts of the Indictment as provided by U.S.S.G. § 1B1.3. Likewise, he was referring to the Career Criminal determination at ¶ 27 of the PSI as provided by U.S.S.G. § 4B1.1(a). Petitioner acknowledged at the hearing on his Motion that he had previously been convicted of two prior drug felonies. (Hearing Tr. at 15).
Petitioner pled guilty and was sentenced in March 2003, after the United States Supreme Court's Apprendi decision. However, the Apprendi Court stated that it was not addressing the U.S.Sentencing Guidelines. Apprendi, 120 S.Ct at 2366, Note 21. The Eleventh Circuit Court of Appeals has noted that fact repeatedly since the Apprendi decision: "The law in this circuit clearly states that Apprendi does not apply to relevant conduct under the guidelines." U.S. v. Gallego, 247 F.3d 1191, 1201 (11th Cir. 2001), cert. denied, 535 U.S. 1095, 122 S.Ct. 2289 (2002); U.S. v. Diaz, 248 F.3d 1065 (11th Cir. 2001); U.S. v. Harris, 244 F.3d 828, (11th Cir. 2001). The sentencing guidelines were not subject to the Apprendi rule. Therefore, defense counsel election to discuss Petitioner's concerns and the legal authority of the PSI determinations and "talked him out of an appeal", as Petitioner said (R-78, at 6; Hearing Tr. at 18).
In exchange for his Plea Agreement, as set out in Section (4) at page 6 of the Agreement, the Government agreed to afford Petitioner Scott the opportunity for a reduction of his sentence through "substantial assistance" as provided by 18 U.S.C. § 3553(e). Petitioner elected to provide substantial assistance and his sentence was reduced from 235 months to 188 months on August 16, 2004. (R-76). Petitioner makes no contention that he requested his counsel to file a Notice of Appeal subsequent to the August 16th resentencing.
The record reflects that, due to the conditions of his Plea Agreement with the Government, Petitioner Scott had no right to appeal his sentence. He had waived all of the guideline sentencing issues which were involved in his sentence, and of which he mistakenly complained to his attorney. He now couches the same claims under the umbrella of ineffective assistance of counsel. But he cannot show that counsel's performance was deficient and that his "talking him out of an appeal" was not in his best interest. Counsel cannot be considered ineffective for failing to raise claims that lack merit. See Alvord v. Wainright, 725 F.2d 1282, 1291 (11th Cir. 1984).
Petitioner's counsel testified in regard to a defendant's decision to plead guilty or not, "It's their decision, the defendant's decision what he'll do. All I can do is advise. The choice that he makes is his choice, it's not mine." (Hearing Tr. at 24). Counsel testified that the Government offered a written plea agreement, and "We went over it. We didn't find anything that we felt was objectionable. So no, we did not file an abjection. . . . [If Mr. Scott specifically asked me to file objections to the Presentence investigation], "I would have filed them." Id., at 25. Counsel also testified that he recalled "some discussion about (an appeal after sentencing), but that was covered in the plea agreement. . . . There was a discussion about it I think, but at the same time he was trying to put together something that would offer some aid and assistance to the Government on a 35, under Rule 35. And my recollection is that he voluntarily chose not to pursue an appellate avenue." He added that if the Petitioner had flat out told him to file an appeal, "Then an appeal would have been filed." Id., at 26.
It must be noted that counsel's assessment that Petitioner had no basis for objections to the PSI nor any issue upon which to base an appeal was within the range of reasonable conduct of an attorney endeavoring to give his client good legal advice. Further, Counsel's assessment of Petitioner's chances of a substantial sentence reduction under a Rule 35 cooperation process proved also to be reasonable inasmuch as Petitioner's sentence was reduced upon the Government's Motion under Rule 35(b) from 235 months to 188 months. (R-76).
Finally, Petitioner Scott cannot bootstrap an invalid Apprendi claim onto Blakely v. Washington, 124 S.Ct. 2531 (2004) or United States v. Booker-Fanfan, 125 S.Ct. 738 (2005), because the Eleventh Circuit Court of Appeals has resolved that those cases, decided subsequent to Petitioner's plea and sentence, have no retroactive applicability to cases on collateral review, such as Petitioner's § 2255 Motion. In re: Jerry J. Anderson, 396 F.3d 1336 (11th Cir. 2005), our Circuit Court held:
Regardless of whether Booker established a "new rule of constitutional law" within the meaning of §§ 2244(b)(2)(A) and 2255, the Supreme Court has not expressly declared Booker to be retroactive to cases on collateral review. See Booker, 125 S.Ct. at ___(opinion of Breyer, J.) (expressly extending the holding "to all cases on direct review"). Put simply, Booker itself was decided in the context of a direct appeal, and the Supreme Court has not since applied it to a case on collateral review. . . . Indeed, as we noted in In re Dean, 375 F.3d 1287, 1290 (11th Cir. 2004), the Supreme Court has indicated the very opposite:
[T]he Supreme Court has strongly implied that Blakely is not to be applied retroactively. The same day the Supreme Court decided Blakely, the Court also issued its decision in Schriro v. Summerlin, ___ U.S. ___, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004), holding that Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), which extended application of Apprendi to facts increasing a defendant's sentence from life imprisonment to death, is not retroactive to cases on collateral review. Summerlin, 124 S.Ct. at 2526; see also Blakely, 124 S.Ct. at 2548-49 (O'Connor, J., dissenting) (recognizing the Court's holding in Summerlin "that Ring (and a fortiori Apprendi) does not apply retroactively on habeas review"); see also McCoy v. United States, 266 F.3d 1245, 1256-58 (11th Cir. 2001) (holding that Apprendi is not retroactive to cases on collateral review). . . . It follows that because Booker, like Blakely and Ring, is based on an extension of Apprendi, Anderson cannot show that the Supreme Court has made that decision retroactive to cases already final on direct review.See also Varela v. United States, 400 F.3d 864, 868 (11th Cir. 2005) ("As the Supreme Court concluded in Schriro, we conclude that Booker's constitutional rule falls squarely under the category of new rules of criminal procedure that do not apply retroactively to § 2255 cases on collateral review").
WHEREFORE, IT IS RECOMMENDED for the reasons stated above that Petitioner's Motion To Vacate, Set Aside, or Correct his Sentence Pursuant to 28 U.S.C. § 2255 should be denied. Pursuant to 28 U.S.C. § 636 (b)(1), Petitioner may serve and file written objections to this Recommendation with the UNITED STATES DISTRICT JUDGE, WITHIN TEN (10) DAYS after being served with a copy hereof.
SO RECOMMENDED.