Opinion
CASE NO. 98-427-CR-KING/GARBER.
November 1, 2007
REPORT AND RECOMMENDATION
THIS CAUSE is before the Court on Defendant Luis Adel Bordon's ("Bordon") Motion to Vacate, Set Aside, and Correct Sentence pursuant to 28 U.S.C. § 2255 [DE 285], pursuant to an Order of Reference from the Honorable James Lawrence King, United States District Judge. On January 23, 2007, the undersigned held an evidentiary hearing regarding this matter. For the reasons set forth below, it is respectfully recommended that the Court DENY Bordon's § 2255 Motion.
BACKGROUND
In June of 1998, Defendant Bordon and his two sons were convicted in this Court of one count of illegal gambling and one count of conspiracy to conduct financial transactions. See United States v. Bordon, 421 F.3d 1202, 1203-04 (11th Cir. 2005), rehearing en banc denied, 172 Fed. Appx. 993 (11th Cir. 2006) (Table).
The Court originally sentenced Bordon to fifty-seven months imprisonment and, inter alia, fines, supervised release, and forfeiture. See Bordon, 421 F.3d 1204. The Eleventh Circuit reversed that original sentence, holding that Bordon's offense level was 23, not 20 as this Court had calculated, and that this Court did not make sufficient factual findings to support a downward departure which the Court had applied. See United States v. Bordon, 228 F.3d 412 (11th Cir. 2000), cert. denied, 531 U.S. 1152 (2001); [D.E. 137] in Case No. 98-0427-CR-KING/GARBER (Eleventh Circuit's mandate and opinion); see also, e.g., Bordon, 421 F.3d at 1204 (describing first appeal).
In July of 2001, the Court re-sentenced Bordon to ninety-seven months imprisonment as to Count I (and, e.g., fines and supervised release), and to sixty-months imprisonment as to Count II, to be served concurrently. See Bordon, 421 F.3d at 1204-05. The Eleventh Circuit reversed in part, holding that the Court had incorrectly interpreted the Eleventh Circuit's first opinion after the first sentencing ( i.e., the Eleventh Circuit's opinion regarding the original fifty-seven month sentence of imprisonment) to mean that the Court lacked discretion to consider a downward departure, when in fact the Eleventh Circuit had only held that the Court had not cited sufficient factual findings to support a downward departure. See United States v. Bordon, 48 Fed. Appx. 326 (11th Cir. 2002) (Table).
Of course, with regards to Eleventh Circuit decisions for which this Court has cited only (1) a "Table" listing in the Federal Reporter series of publications, (2) the style of the case, and (3) the Eleventh Circuit's conclusion ( e.g., "Reversed in part, Vacated in part . . .," 48 Fed. Appx. 326), several of the Eleventh Circuit's unpublished opinions which correspond to those "Table" decisions are in this Court's file for this action. The Court has not cited all of those unpublished opinions or referred to their docket entry numbers, however, because the parties, based on their briefs and oral argument, apparently agree regarding the procedural background of this action.
In January of 2004, the Court re-sentenced Bordon to ninety-seven months imprisonment as to Count I (and, e.g., fines and supervised release), and to sixty-months imprisonment as to Count II, to be served concurrently with the sentence as to Count I. See United States v. Bordon, 421 F.3d 1202, 1205 (11th Cir. 2005), rehearing en banc denied, 172 Fed. Appx. 993 (11th Cir. 2006) (Table).
Bordon appealed that sentence. Bordon filed his initial brief before the Supreme Court decided United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005). He therefore obviously could not have based any argument on the Booker decision because the Supreme Court had not yet issued that decision. However, in this Court, in his initial appellate brief, he could have raised, but did not raise, in this Court or in his initial appellate brief an argument based on the same logic as Booker — just as the Booker appellant did — and that is particularly true because the Booker Court's logic was in many ways similar to the Supreme Court's rationale and holdings in, at a minimum, both Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). See, e.g., United States v. Levy, 416 F.3d 1273, 1278-79 (11th Cir. 2005) ("Although it may be true that most attorneys could not have predicted the Supreme Court's precise resolution of the sentencing issues in Booker, the general agreement that the federal sentencing guidelines are unconstitutional or that a jury, not a judge, must decide the facts supporting extra-verdict sentencing enhancements was available to counsel long before Blakely and Booker."), cert. denied, 546 U.S. 1011 (2005); McCoy v. United States, 266 F.3d 1245, 1258-59 (11th Cir. 2001) ("McCoy contends that "cause" exists because the basis for his Apprendi claim was not known until after his conviction became final, since drug quantity was considered a mere sentencing factor until Apprendi. It is true that a claim that is so novel that its legal basis is not reasonably available to counsel may constitute cause for a procedural default . . . However, the question is not whether subsequent legal developments have made counsel's task easier, but whether at the time of the default the claim was available at all. . . . Apprendi himself raised the issue some time before his case was argued to the New Jersey appellate court in February of 1997, . . . so the building blocks for arguing it were obviously in existence as early as then. And as the other circuits to address this issue have noted, the foundation for Apprendi was laid years before the Supreme Court announced Apprendi. . . . The fact that every circuit which had addressed the issue had rejected the proposition that became the Apprendi rule simply demonstrates that reasonable defendants and lawyers could well have concluded it would be futile to raise the issue. . . . That is the basis for the dissenting opinion in United States v. Smith, 250 F.3d 1073 (7th Cir. 2001) (Woods, J., dissenting), which the concurring opinion in this case embraces. The problem with that position is that the Supreme Court could not have been clearer that perceived futility does not constitute cause to excuse a procedural default. . . . Unless and until the Supreme Court overrules its decisions that futility cannot be cause, laments about those decisions forcing defense counsel to file kitchen sink briefs in order to avoid procedural bars . . . are beside the point.") (citations and internal quotation marks omitted). On January 12, 2005, after Bordon had filed his initial appellate brief but before the Eleventh Circuit heard oral argument regarding Bordon's latest appeal, the Court issued its Booker opinion, 543 U.S. 220, 125 S. Ct. 738, in which the Court generally "held that the Federal Sentencing Guidelines, as a mandatory guidelines system, violated the Sixth Amendment right to a trial by jury by enhancing a defendant's sentence based on judicially-found facts." United States v. Gibson, 442 F. Supp. 2d 1279, 1281 (S.D. Fla. 2006) (J. King); see Bordon, 421 F.3d at 1206 n. 1.
In this quotation from Gibson, Judge King provided an accurate, concise, general statement of the constitutional error which the Booker Court addressed, and this Court will discuss that constitutional error in more detail infra. As this Court will also discuss infra, the Eleventh Circuit and other courts have interpreted Booker to have also addressed a distinct non-constitutional error. Of course, if any portion of the relevant section of Gibson were inconsistent with the Eleventh Circuit's or the Supreme Court's discussions regarding the relevant issue (the undersigned does not believe any such inconsistency exists), then of course this Court would be bound to follow those Eleventh Circuit or the Supreme Court decisions, despite the fact that Judge King, the presiding District Judge in this action, decided Gibson.
Prior to oral argument, therefore, Bordon filed with the Eleventh Circuit a Notice of Supplemental Authority in which he directed the Eleventh Circuit to the Supreme Court's Booker decision and argued that the Eleventh Circuit should consider Booker to be "outcome determinative" of Bordon's case. Bordon, 421 F.3d at 1206 n. 1. The Eleventh Circuit and the parties "fully discussed" the Booker claim "at oral argument . . .," id., and the Eleventh Circuit "recognized] that [Bordon and his sons] could readily satisfy the plain error analysis" applicable in the Eleventh Circuit because the sentencing Court: (1) had believed that the sentence calculated in accordance with the Federal Sentencing Guidelines (which, at the time, were still binding on federal courts within the Eleventh Circuit, see, e.g., United States v. Shelton, 400 F.3d 1325, 1330 (11th Cir. 2005)) was excessive, see Bordon, 421 F.3d at 1206 n. 1; and (2) Judge King, i.e., the Bordon trial Judge, "in his initial sentencing, actually departed downward on a belief that the sentence was excessive. . . ." Id. The Eleventh Circuit had reversed that downward departure in part because the Eleventh Circuit concluded that a district court could not depart downward from the then-mandatory Federal Sentencing Guidelines merely because the Court believed the guideline sentence was excessive. See id. at 1205.
Although the Eleventh Circuit recognized that Bordon could not have cited Booker or raised a claim explicitly based on the Booker decision in his initial appellate brief because the Supreme Court had not yet decided Booker (although of course Bordon could have raised a Booker-type claim based on the same logic that the Booker defendant relied on before the Supreme Court decided the relevant opinion in that defendant's own case), the Eleventh Circuit refused to consider Bordon's Booker argument based on the "long-standing rule" that issues which an appellant does not raise in his or her initial brief are deemed abandoned. See Booker, 421 F.3d at 1206 n. 1; see also, e.g., United States v. Levy, 391 F.3d 1327 (11th Cir. 2004) ( en banc).
On August 25, 2005, the Eleventh Circuit affirmed. 421 F.3d 1202.
Bordon filed petitions for rehearing and rehearing en banc, which the Eleventh Circuit denied in January of 2006. See United States v. Bordon, 172 Fed. Appx. 993 (11th Cir. 2006) (Table).
On November 9, 2006, Bordon timely filed the § 2255 Motion to which this Report and Recommendation relates.
DISCUSSION
Bordon's claims
Construing Bordon's § 2255 Motion and related documents in a much more liberal manner than Bordon is entitled to, particularly given that he is represented by counsel, Bordon's § 2255 Motion appears to involve two ineffective-assistance-of-counsel claims, one which he raised in his § 2255 Motion and the other which he did not raise until he filed his Reply brief. Although it is doubtful that Bordon is entitled to raise a new claim in his Reply brief, the Court can dispose of that claim very quickly, particularly because it allowed the Government to file a Sur-reply regarding Bordon's new claim in his Reply brief, and therefore the Court will assume without deciding that Bordon timely raised that claim and the Court will consider the merits of it.
Bordon's two ineffective-assistance-of-counsel claims are: (1) that his "prior attorney failed to anticipate Booker's holding, and did not include a Booker type claim in his initial brief . . .," i.e., the initial appellate brief regarding Bordon's third appeal, in which the Eleventh Circuit did not consider his Booker claim because he failed to raise it in his initial brief, § 2255 Motion [DE 285], at 4; and (2) that Bordon's appellate counsel "should have filed a motion with the Eleventh Circuit requesting that the Court relinquish jurisdiction for the purpose of allowing the trial court to review its sentencing of Mr. Bordon in light of the just announced Booker decisions." Defendant's Reply [DE 288], at 2.
Ineffective-assistance-of-counsel claims: standard of review and burden of proof
Bordon's two ineffective-assistance-of-counsel claims are governed by Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984) and its progeny. See, e.g., Marquard v. Sec'y for Dep't of Corrections, 429 F.3d 1278, 1304 (11th Cir. 2005). Bordon has the burden to prove by a preponderance of the evidence both: (1) deficient performance, i.e., "that counsel's representation fell below an objective standard of reasonableness . . .," Strickland, 466 U.S. at 688, 104 S. Ct. at 2064, and (2) resulting prejudice, i.e., "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068; see also, e.g., Marquard, 429 F.3d at 1304; Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000) ( en banc). If Bordon fails to demonstrate either deficient performance or prejudice regarding a claim, he is not entitled to relief based on that claim. See, e.g., Michael v. Crosby, 430 F.3d 1310, 1319 (11th Cir. 2005).
To establish deficient performance, Bordon must point to "particular and identified acts or omissions of counsel" that were "`outside the wide range of professionally competent assistance.'" Chandler, 218 F.3d at 1314 (quoting Burger v. Kemp, 483 U.S. 776, 795, 107 S. Ct. 3114, 3126 (1987)). That burden, although not insurmountable, "is a heavy one." Id.
The Court's "scrutiny of counsel's performance must be highly deferential." Strickland, 466 U.S. at 589, 104 S. Ct. at 2065; see also, e.g., Marquard, 429 F.3d at 1304; Chandler, 218 F.3d at 1314. The Court must indulge a "strong presumption" that counsel's performance was reasonable and that counsel "made all significant decisions in the exercise of reasonable professional judgment." Strickland, 466 U.S. at 689-90, 104 S. Ct. at 2065-66; see also, e.g., Chandler, 218 F.3d at 1314; Williams v. Head, 185 F.3d 1223, 1227-28 (11th Cir. 1999).
"An ambiguous or silent record is not sufficient to disprove the strong and continuing presumption" that counsel's performance was not deficient. Chandler, 218 F.3d at 1314 n. 15. "Therefore, `where the record is incomplete or unclear about [counsel]'s actions, [the Court] will presume that he did what he should have done, and that he exercised reasonable professional judgment.'" Chandler, 218 F.3d at 1314 n. 15 (quoting Williams, 185 F.3d at 1228) (first alteration in original); see also, e.g., Jones v. Campbell, 436 F.3d 1285, 1293 (11th Cir. 2006). Accordingly, even when testimony or evidence at a § 2255 evidentiary hearing is ambiguous, if counsel's actions or other evidence suggests that counsel's performance was reasonable, an ineffective-assistance-of-counsel claim must fail. See, e.g., Chandler, 218 F.3d at 1314 n. 15; Waters v. Thomas, 46 F.3d 1506, 1516 (11th Cir. 1995) ( en banc).
The Court's inquiry is an objective one. See, e.g., Chandler, 218 F.3d at 1315 n. 16. The Court therefore "must avoid second-guessing counsel's performance . . .," Chandler, 218 F.3d at 1314, and "it does not follow that any counsel who take an approach [the Court] would not have chosen is guilty of rendering ineffective assistance." Waters, 46 F.3d at 1522; see also, e.g., Chandler, 218 F.3d at 1314. Instead, in order to prove that counsel's performance was deficient, Bordon "must establish that no competent counsel would have taken the action that his counsel did take." Id. at 1315 (emphasis added); see also, e.g., id. at 1315 n. 16; Gordon v. United States, 496 F.3d 1270, 1281 (11th Cir. 2007); Waters, 46 F.3d at 1512; Provenzano v. Singletary, 148 F.3d 1327, 1332 (11th Cir. 1998); Harich v. Dugger, 844 F.2d 1464, 1470 (11th Cir. 1988) ( en banc). Further, because the test is an objective one, because "[t]here are countless ways to provide effective assistance in any given case . . .," Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; see also, e.g., Chandler, 218 F.3d at 1315 n. 16, and because "[n]o lawyer can be expected to have considered all of th[os]e ways . . .," Chandler, 218 F.3d at 1315 n. 16, the Court "need not attempt to divine the lawyer's mental processes underlying the strategy." Id.
The Eleventh Circuit and district courts within the Eleventh Circuit have consistently and recently continued to apply this "no competent counsel" standard when assessing ineffective-assistance-of-counsel claims. See, e.g., Jones v. Campbell, 436 F.3d 1285, 1293 (11th Cir. 2006); Saldo v. Crosby, No. 04-15351, 2006 WL 93243, at *2 (11th Cir. Jan. 17, 2006); Maharaj v. Sec'y for Dep't of Corrections, 432 F.3d 1292, 1319 (11th Cir. Dec. 15, 2005); Michael v. Crosby, 430 F.3d 1310, 1319-20 (11th Cir. Nov. 21, 2005); Marquard v. Sec'y for Dep't of Corrections, 429 F.3d 1278, 1304 (11th Cir. Nov. 10, 2005); Callahan v. Campbell, 427 F.3d 897, 933 (11th Cir. Oct. 5, 2005); Lewis v. Crosby, No. 8:02CV1844T27TBM, 2006 WL 319258, at *5 (M.D. Fla. Feb. 10, 2006); Irsula v. Sec'y, Dep't of Corrections, No. 8:05CV1092T30TGW, 2006 WL 300613, at *1 (M.D. Fla. Feb. 8, 2006); Evans v. United States, No. CRIM.A. 502CR9HL, 2006 WL 149058, at *5 (M.D. Ga. Jan. 18, 2006); United States v. Turner, Nos. 5:02 CR 32 RH, 5:04 CV 140 RH/WCS, 2006 WL, at *3 (N.D. Fla. Jan. 4, 2006); Dumas v. Crosby, No. 3:04CV15/MCR/EMT, 2005 WL 3274651, at *5 (N.D. Fla. Dec. 2, 2005); Raulerson v. Fla., No. 3:03CV538J-99MMH, 2005 WL 2291733, at *5 (M.D. Fla. Sept. 20, 2005); Wright v. Crosby, No. 8:03-CV-1698-T-17EAJ, 2005 WL 1925747, at *8 (M.D. Fla. Aug. 11, 2005); Hayes v. Crosby, No. 803CV931T17TBM, 2005 WL 1618213, at *3 (M.D. Fla. July 6, 2005).
In reviewing counsel's performance, the Court must "eliminate the distorting effects of hindsight" and instead must "evaluate the conduct from counsel's perspective at the time." Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; see also, e.g., Marquard v. Sec'y for Dep't of Corrections, 429 F.3d 1278, 1304 (11th Cir. 2005); Chandler v. United States, 218 F.3d 1305, 1316 (11th Cir. 2000) ( en banc); Waters v. Thomas, 46 F.3d 1506, 1514 (11th Cir. 1995) ( en banc). Otherwise, it would be "all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable." Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; see also, e.g., Chandler, 218 F.3d at 1316; Waters, 46 F.3d at 1514. It is axiomatic, therefore, that "the fact that a particular defense proved to be unsuccessful" does not "demonstrate ineffectiveness." Chandler, 218 F.3d at 1314.
In applying the Strickland v. Washington standard, therefore, the Court "must not second-guess counsel's strategy." Chandler, 218 F.3d at 1314 n. 14 (11th Cir. 2000); see also, e.g., Waters, 46 F.3d at 1518-19 (11th Cir. 1995) ( en banc). In this context, "strategy" means "trial counsel's course of conduct, that was neither directly prohibited by law nor directly required by law, for obtaining a favorable result for his client." Chandler, 218 F.3d at 1314 n. 14. Therefore, "counsel cannot be adjudged incompetent for performing in a particular way in a case, so long as the approach taken `might be considered sound trial strategy.'" Chandler v. United States, 218 F.3d 1305, 1314 (11th Cir. 2000) (quoting Darden v. Wainwright, 477 U.S. 168, 186-87, 106 S. Ct. 2464, 2474 (1986)).
Additionally, "[c]ounsel is not required to present every nonfrivolous defense"; is not required to make every non-frivolous argument; and is not required to present all evidence, even if that evidence would have been compatible with the defendant's and counsel's strategy. Chandler, 218 F.3d at 1319; see also, e.g., Marquard, 429 F.3d at 1305; Waters, 46 F.3d at 1511; Rogers v. Zant, 13 F.3d 384, 388 (11th Cir. 1994). "Considering the realities of the courtroom, more is not always better. Stacking defenses can hurt a case. Good advocacy requires `winnowing out' some arguments, witnesses, evidence, and so on, to stress others." Chandler, 218 F.3d at 1319; see also, e.g., Marquard, 429 F.3d at 1305; Waters, 46 F.3d at 1512 ("There is much wisdom for trial lawyers in the adage about leaving well enough alone."); Rogers, 13 F.3d at 388 ("To avoid being branded ineffective, defense lawyers need not assert every nonfrivolous defense. We have accepted in earlier cases that stacking different defenses can undercut with the jury the defense team's credibility, which is essential to a likelihood of success."); id. ("And, as the Supreme Court has stressed, we know good advocacy requires the winnowing out of some arguments in favor of stressing others: multiplicity of arguments or defenses hints at the lack of confidence in any one.") (citing Jones v. Barnes, 463 U.S. 745, 751-53, 103 S. Ct. 3308, 3313 (1983)).
To establish prejudice, Bordon "must `affirmatively prove prejudice' by showing that counsel's errors "actually had an adverse effect on the defense.'" Brownlee v. Hayley, 306 F.3d 1043, 1059 (11th Cir. 2002) (quoting Strickland, 466 U.S. at 693, 104 S. Ct. at 2067). "This requires a showing of more than `some conceivable effect on the outcome of the proceeding.'" Id. (quoting Strickland, 466 U.S. at 693, 104 S. Ct. at 2067). Instead, Bordon "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. (quoting Strickland, 466 U.S. at 694, 104 S. Ct. at 2068).
Booker and its progeny
Because Bordon's claims are based on United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (Jan. 12, 2005), the Court will briefly discuss that decision and its progeny.
In Booker and its progeny, the Supreme Court and Eleventh Circuit (and other federal appellate courts and federal district courts, including this Court) have discussed two types of sentencing errors which the Booker facts and the Booker Court's legal discussion implicated: (1) errors based on the United States constitution, and (2) errors based on federal statutes. See, e.g., Odili v. United States Parole Comm'n, 474 F.3d 1255, 1264 (11th Cir. 2007); United States v. Houston, 456 F.3d 1328, 1339 (11th Cir. 2006), cert. denied, 127 S. Ct. 2148 (2007); United States v. Alvarez, 164 Fed. Appx. 893, 894-95 (11th Cir. 2006); United States v. Mathenia, 409 F.3d 1289, 1291 (11th Cir. 2005); United States v. Shelton, 400 F.3d 1325, 1331 (11th Cir. 2005); United States v. Rodriguez, 398 F.3d 1291, 1301 (11th Cir.), cert. denied, 545 U.S. 1127 (2005); see also, e.g., United States v. Gibson, 442 F. Supp. 2d 1279, 1281 (S.D. Fla. 2006) (J. King) ("In Booker, the Supreme Court held that the Federal Sentencing Guidelines, as a mandatory guidelines system, violated the Sixth Amendment right to a trial by jury by enhancing a defendant's sentence based on judicially-found facts.").
Booker constitutional error occurs when "`the Sixth Amendment right to trial by jury is violated where under a mandatory guidelines system a sentence is increased because of an enhancement based on facts found by the judge that were neither admitted by the defendant nor found by the jury." United States v. Smith, 480 F.3d 1277, 1281 (11th Cir. 2007) (quoting Rodriguez, 398 F.3d at 1298), cert. denied, ___ S. Ct. ___, 2007 WL 1750209 (U.S. Oct. 1, 2007) (No. 06-11901)); see also, e.g., Odili v. United States Parole Comm'n, 474 F.3d 1255, 1264 (11th Cir. 2007); United States v. Houston, 456 F.3d 1328, 1339 (11th Cir. 2006), cert. denied, 127 S. Ct. 2148 (2007); Rodriguez, 398 F.3d at 1301 (Booker "constitutional error is the use of extra-verdict enhancements to reach a guidelines result that is binding on the sentencing judge.").
As that quotation from United States v. Smith demonstrates, Booker constitutional error is premised on the Sixth Amendment. See, e.g., Smith, 480 F.3d at 1281. Some criminal defendants have unsuccessfully argued that Booker error also arises under other amendments, particularly the Fifth Amendment. See, e.g., United States v. Correa, No. 07-11281, 2007 WL 2983882, at *1 (11th Cir. Oct. 15, 2007) ("On appeal, Rodriguez-Correa raises five arguments: 1) that his Fifth and Sixth Amendment rights were violated where the district court used his prior convictions that were not alleged in the indictment or proven to a jury beyond a reasonable doubt to enhance his sentence; . . . First, Rodriguez-Correa argues that his Fifth and Sixth Amendment rights were violated where the district court used his prior convictions that were not alleged in the indictment or proven to a jury beyond a reasonable doubt to enhance his sentence. . . . He acknowledges that his argument is foreclosed by this Court's precedent, but raises the claim to preserve it for further appellate review."); United States v. McMillan, No. 07-10985, 2007 WL 2709935, at *1 (11th Cir. Sept. 18, 2007) ("McMillan also contends that the district court's consideration of the drug quantities from dismissed charges to set his base offense level without a finding by a jury applying a beyond-a-reasonable-doubt standard violates the Fifth and Sixth Amendments. McMillan acknowledges that this contention is contrary to this Court's previous rulings.").
Booker statutory error, on the other hand, occurs when "when the judge treats the sentencing guidelines as binding for sentencing purposes, regardless of the sentence imposed." Odili v. United States Parole Comm'n, 474 F.3d 1255, 1264 (11th Cir. 2007); see also, e.g., United States v. Houston, 456 F.3d 1328, 1339 (11th Cir. 2006), cert. denied, 127 S. Ct. 2148 (2007). Booker statutory error may occur even in the absence of a Booker constitutional error. See, e.g., United States v. Alvarez, 164 Fed. Appx. 893, 894-95 (11th Cir. 2006) ("Statutory Booker error occurs when the district court misapplies the guidelines by considering them as binding `even in the absence of a Sixth Amendment enhancement violation.'") (quoting United States v. Shelton, 400 F.3d 1325, 1330-31 (11th Cir. 2005)).
Although at least some of the following propositions may be only indirectly relevant to Bordon's § 2255 Motion, all are useful for placing Booker in its appropriate context and for understanding the limitations of that decision, which Bordon and many other criminal defendants attempt to apply incorrectly to their cases.
Booker does not affect sentences applied by a court which properly treated the Federal Sentencing Guidelines as advisory and not binding, and which then relied on evidence, even evidence which was not presented at trial and which the jury did not hear or see (such as undisputed statements in the pre-sentence investigative report, statements in the Government's plea colloquy to which a defendant does not object, and/or evidence presented at a sentencing hearing), to conclude by a preponderance of the evidence that facts exist which warranted enhancement of the defendant's sentence. See, e.g., United States v. Smith, 480 F.3d 1277, 1281 (11th Cir. 2007), cert. denied, ___ S. Ct. ___, 2007 WL 1750209 (U.S. Oct. 1, 2007) (No. 06-11901); United States v. Chau, 426 F.3d 1318, 1322-23 (11th Cir. 2005); id. at 1323 ("As we have explained, `all nine [justices] agreed that the use of extra-verdict enhancements in an advisory guidelines system is not unconstitutional.'") (quoting United States v. Rodriguez, 398 F.3d 1291, 1301 (11th Cir.), cert. denied, 125 S. Ct. 2935 (2005)) (alteration in original); United States v. Shelton, 400 F.3d 1325, 1330-31 (11th Cir. 2005); Rodriguez, 398 F.3d at 1300 ("No part of the [Sentencing Reform] Act or guidelines concerning extra-verdict enhancements was excised or modified by the Booker decision. The same extra-verdict enhancement provisions apply after Booker as before."); id. at 1301 ("The problem with the reasoning is that, as we have already discussed, both majority opinions in Booker make clear that the decisive factor that makes pre- Booker sentencing problematic is not extra-verdict enhancements but their use in a mandatory guidelines system. Indeed, all nine Justices joined one or both of those opinions, so all nine agreed that the use of extra-verdict enhancements in an advisory guidelines system is not unconstitutional.") (emphasis added); United States v. Polar, 369 F.3d 1248, 1255 (11th Cir. 2005).
Collateral review and Booker
To the extent Bordon raises a substantive Booker claim, as opposed to a constitutional claim that his counsel rendered ineffective assistance by failing to take certain steps to bring Booker to the Eleventh Circuit's or this Court's attention before his appeal was final, he may not raise that claim on collateral review. See, e.g., Griffin v. Wiley, 141 Fed. Appx. 843, 845 (11th Cir. 2005), cert. denied, 546 U.S. 1215 (2006); Varela v. United States, 400 F.3d 864, 867-68 (11th Cir.), cert. denied, 546 U.S. 924 (2005).
Bordon's first claim
Bordon's first ineffective-assistance-of-counsel claim — and as this Court discussed supra, the only one he actually raised in his § 2255 Motion — is that his "prior attorney failed to anticipate Booker's holding, and did not include a Booker type claim in his initial brief . . .," i.e., the initial appellate brief regarding Bordon's third appeal, in which the Eleventh Circuit did not consider his Booker claim because he had failed to raise it in his initial brief. See § 2255 Motion [DE 285], at 4.
Bordon's counsel's performance in failing to "anticipate Booker's holding" and therefore failing to "include a Booker type claim in his initial brief regarding his third appeal, see § 2255 Motion [DE 285], at 4, does not constitute deficient performance which could support Bordon's ineffective-assistance-of-counsel claim, particularly in light of the fact that at that time the Supreme Court's eventual holding in Booker was contrary to then-current Eleventh Circuit law. See, e.g., United States v. Vanorden, 414 F.3d 1321, 1323 n. 1 (11th Cir. 2005) ("This omission is certainly understandable in that neither Blakely nor Booker had been decided, and then-controlling circuit precedent held that the Sixth Amendment right to a trial by jury, as explicated in Apprendi, `ha[d] no application to, or effect on, . . . Sentencing Guidelines calculations, when . . . the ultimate sentence imposed does not exceed the prescribed statutory maximum penalty,'. . . .") (quoting United States v. Sanchez, 269 F.3d 1250, 1288 (11th Cir. 2001) ( en banc)) (alteration in original), cert. denied, 126 S. Ct. 633 (2005); United States v. Ardley, 273 F.3d 991, 993 (11th Cir. 2001) (describing "a wall of binding precedent that shuts out any contention that an attorney's failure to anticipate a change in the law constitutes ineffective assistance of counsel"); Spaziano v. Singletary, 36 F.3d 1028, 1039 (11th Cir. 1994) ("We have held many times that reasonably effective representation cannot and does not include a requirement to make arguments based on predictions of how the law may develop."); United States v. Benveniste, Nos. CRIM.A. 101CR0761JOF Civ.A. 105CV1074JOF, 2006 WL 269969, at *4 (N.D. Ga. Feb. 4, 2006); Diaz v. United States, Nos. 2:05-CV-2-FTM-29 2:02-CR-60-FTM-29, 2005 WL 3467523, at *9 (M.D. Fla. Dec. 19, 2005), certificate of appealability denied, 2006 WL 118285 (M.D. Fla. Jan. 16, 2006); Aird v. United States, 339 F. Supp. 2d 1304, 1312-13 (S.D. Ala. 2004) ("As a matter of law, the Blakely ruling cannot give rise a viable claim of ineffective assistance of counsel based on trial or appellate counsel's failure to object to events that Blakely may have rendered unconstitutional years later.").
In Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), a decision in which the Supreme Court considered a State's sentencing guidelines, the Court foreshadowed its future decision in Booker, but that does not change the fact that until the Supreme Court decided Booker, the Eleventh Circuit and most or all other Circuits had concluded that Blakely did not apply to the Federal Sentencing Guidelines. The two decisions are so closely related, however, that when a federal prisoner raises a Blakely claim but does not explicitly rely on Booker, the Eleventh Circuit nevertheless construes the claim to be based on Booker. See, e.g., United States v. Daniel, 148 Fed. Appx. 833, 835 n. 3 (11th Cir. 2005) ("This court now reviews Blakely arguments under Booker."); United States v. Lee, 427 F.3d 881, 891 (11th Cir. 2005); United States v. Levy, 416 F.3d 1273, 1279 (11th Cir.), cert. denied, 126 S. Ct. 643 (2005).
Because Bordon's former counsel's actions were not constitutionally ineffective, Bordon is not entitled to relief based on his first claim.
Bordon's second claim
Bordon's second claim, which, as the Court discussed supra, he did not raise in his § 2255 Motion but instead first raised in his Reply memorandum, is that his appellate counsel "should have filed a motion with the Eleventh Circuit requesting that the Court relinquish jurisdiction for the purpose of allowing the trial court to review its sentencing of Mr. Bordon in light of the just announced Booker decisions." Defendant's Reply [DE 288], at 2.
As this Court discussed supra, after Bordon filed his initial appellate brief but before the Eleventh Circuit heard oral argument regarding Bordon's latest appeal, the Supreme Court decided United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (Jan. 12, 2005). Prior to oral argument, therefore, Bordon filed with the Eleventh Circuit a Notice of Supplemental Authority in which he directed the Eleventh Circuit to the Supreme Court's decision in Booker and argued that the Eleventh Circuit should consider Booker to be "outcome determinative" of Bordon's case. Bordon, 421 F.3d at 1206 n. 1. The Eleventh Circuit and the parties "fully discussed" the Booker claim "at oral argument . . .," id., and the Eleventh Circuit "recognize[d] that [Bordon and his sons] could readily satisfy the plain error analysis" applicable in the Eleventh Circuit because the District Judge who imposed the sentence: (1) believed that the sentence was calculated in accordance with the Federal Sentencing Guidelines (which, at the time, were still binding on courts within the Eleventh Circuit, see, e.g., United States v. Shelton, 400 F.3d 1325, 1330 (11th Cir. 2005)) was excessive, see Bordon, 421 F.3d at 1206 n. 1; and (2) that court, i.e., the Bordon trial court, "in [its] initial sentencing, actually departed downward on a belief that the sentence was excessive. . . ." Id. The Eleventh Circuit had reversed that downward departure in part because the Eleventh Circuit concluded that a district court could not depart downward from the (then-mandatory) Federal Sentencing Guidelines merely because it believed the Guideline sentence was excessive. See id. at 1205.
Although the Eleventh Circuit recognized that Bordon could not have cited Booker or raised a claim based on Booker in his initial appellate brief because the Supreme Court had not yet decided Booker (although of course Bordon could have raised a Booker-type claim, just as the Booker defendant did before the Supreme Court decided the relevant opinion in that defendant's own case, see, e.g, United States v. Levey 416 F.3d 1273, 1278-79 (11th Cir.), cert. denied, 546 U.S. 1011 (2005), the Eleventh Circuit refused to consider Bordon's Booker argument based on the "longstanding rule" that issues which an appellant does not raise in his or her initial brief are deemed abandoned. See Booker, 421 F.3d at 1206 n. 1; see also, e.g., United States v. Levy, 391 F.3d 1327 (11th Cir. 2004).
The Eleventh Circuit affirmed. See 421 F.3d 1202. Bordon's counsel then filed petitions for rehearing and rehearing en banc, which the Eleventh Circuit denied in January of 2006. See United States v. Bordon, 172 Fed. Appx. 993 (11th Cir. 2006) (Table).
Bordon's counsel's actions do not come even remotely close to the level of deficient performance which would satisfy the first prong of the Strickland test. Even assuming that Bordon's suggested approach ( i.e., that his appellate counsel "should have filed a motion with the Eleventh Circuit requesting that the Court relinquish jurisdiction for the purpose of allowing the trial court to review its sentencing of Mr. Bordon in light of the just announced Booker decisions . . .," Defendant's Reply [DE 288], at 2) — would have constituted sound strategy, or even better strategy than the approach Bordon's counsel took, those facts are insufficient to establish deficient performance. "There are countless ways to provide effective assistance in any given case . . .," Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065 (1984); see also, e.g., Chandler v. United States, 218 F.3d 1305, 1313, 1315 n. 16 (11th Cir. 2000) ( en banc), and because "[n]o lawyer can be expected to have considered all of th[os]e ways . . .," Chandler, 218 F.3d at 1315 n. 16, the Court "need not attempt to divine the lawyer's mental processes underlying the strategy." Id.
Even though Bordon's own counsel, Mr. Weintraub, testified at the evidentiary hearing that he believed he had made a mistake in not pursuing an alternative method of raising the Booker issue, the Court's inquiry is an objective one, see, e.g., Chandler, 218 F.3d at 1315 n. 16; Waters v. Thomas, 46 F.3d 1506, 1522 (11th Cir. 1995) ( en banc), and therefore, as odd as the proposition may seem at first blush, even Mr. Weintraub's own testimony regarding his subjective belief that he erred is insufficient to establish deficient performance pursuant to Strickland; and contrary to that portion of Mr. Weintraub's testimony during the evidentiary hearing in this § 2255 proceeding, the record reflects that Mr. Weintraub's representation of Mr. Bordon was not only objectively reasonable, but was outstanding. In fact, even with respect to the Booker issue and in light of the late point of the proceedings at which the Supreme Court decided Booker, Mr. Weintraub's attempts to obtain relief based on Booker were also outstanding; so outstanding, in fact, that Judge Hill, one of the three Judges on the Eleventh Circuit panel, concurred with the panel's conclusion with what he explicitly stated was a "lack of enthusiasm" and reluctance, see Bordon, 421 F.3d at 1208 (J. Hill, concurring) ("With lack of enthusiasm, I concur."); id. at 1209 ("I reluctantly concur."). And perhaps more importantly do demonstrate the objective reasonableness of Bordon's counsel's actions, Judge Hill, even with the benefit of hindsight that Bordon's former counsel did not have, at least implied that he was unaware of any method in the Eleventh Circuit to correct an erroneous sentence under circumstances such as those which arose in this action, i.e., by virtue of the Supreme Court having decided Booker after the parties filed their briefs but before oral argument. See id. at 1208 ("I should like to think that a court would want to correct an erroneous sentence of incarceration — if an efficient and prudential method could be devised to do so. We must feel that we cannot. Yet, the other circuits in this country seem to be doing so — and surviving!").
As this Court discussed supra, in reviewing counsel's performance, the Court must "eliminate the distorting effects of hindsight" and instead must "evaluate the conduct from counsel's perspective at the time." Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; see also, e.g., Marquard v. Sec'y for Dep't of Corrections, 429 F.3d 1278, 1304 (11th Cir. 2005); Chandler v. United States, 218 F.3d 1305, 1316 (11th Cir. 2000) ( en banc); Waters v. Thomas, 46 F.3d 1506, 1514 (11th Cir. 1995) ( en banc). Otherwise, it would be "all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable." Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; see also, e.g., Chandler, 218 F.3d at 1316; Waters, 46 F.3d at 1514. It is axiomatic, therefore, that "the fact that a particular defense proved to be unsuccessful" does not "demonstrate ineffectiveness." Chandler, 218 F.3d at 1314.
Bordon's counsel's chosen method for attempting to obtain relief based on Booker, particularly when viewed from counsel's perspective — e.g., the fact that the Supreme Court did not issue the Booker opinion until after the parties had filed their briefs and soon before oral argument — and in light of the speed with which he had to make such important decisions, his conduct certainly was within the wide range of decisions competent counsel could make in a similar or identical situation.
In fact, as the Court discussed supra, even Judge Hill, with the benefit of hindsight that Bordon's former counsel did not have, still appeared to be unable to suggest an alternative method by which Bordon could have obtained relief based on Booker, given the procedural posture of Bordon's appeal at the time the Supreme Court issued its Booker decision. Additionally, even Bordon's current counsel did not raise this issue in Bordon's § 2255 Motion, and in that § 2255 Motion he did not suggest the alternative method which he now claims it was constitutionally deficient for Bordon's former counsel not to pursue. Additionally, Bordon's former counsel failed to make that argument in the § 2255 Motion despite the fact that he had very significant "advantages" which would have made it much easier for him to identify the suggested approach than it would have been for Bordon's former counsel to identify that approach during the appeal: when Bordon's current counsel filed that § 2255 Motion, he had the benefits of a significant amount of time to prepare, considerable hindsight, and Judge Hill's concurring opinion, none of which Bordon's former counsel had the benefit of at the time relevant to Bordon's claim. Although this Court would conclude with confidence that Bordon's former counsel's performance was not deficient even if Judge Hill had not written that concurrence and even if Bordon's current counsel had raised the relevant argument in Bordon's § 2255 Motion instead of in Bordon's Reply, those are two additional facts which seem to make it difficult, if not impossible, for Bordon's current counsel to argue "that no competent counsel would have taken the action that [Bordon's former] counsel did take" and/or that no competent counsel would have failed to take the action that Bordon's former counsel failed to take. Chandler v. United States, 218 F.3d 1305, 1314 (11th Cir. 2000) ( en banc) (emphasis added); see also, e.g., id. at 1315 n. 16; Gordon v. United States, 496 F.3d 1270, 1281 (11th Cir. 2007); Jones v. Campbell, 436 F.3d 1285, 1293 (11th Cir. 2006); Maharaj v. Sec'y for Dep't of Corrections, 432 F.3d 1292, 1319 (11th Cir. 2005); Waters v. Thomas, 46 F.3d 1506, 1512 (11th Cir. 1995) ( en banc); Provenzano v. Singletary, 148 F.3d 1327, 1332 (11th Cir. 1998); Harich v. Dugger, 844 F.2d 1464, 1470 (11th Cir. 1988) ( en banc).
It appears that the only way Bordon's current counsel can make that argument is to concede that he rendered deficient performance by failing to raise the argument in Bordon's § 2255 Motion (although it could not have been constitutionally deficient performance because this is a § 2255 Motion, and the Constitution does not guarantee § 2255 movants the right to any counsel, let alone counsel subject to the Strickland v. Washington standard) and instead raising it for the first time in Bordon's Reply, particularly given the fact that the Court likely has the discretion to decline to consider the issue because Bordon's counsel did not raise it in the § 2255 Motion.
Similarly, it appears that the only way Bordon's counsel can make that argument is to argue that Judge Hill's concurrence in the August 25, 2005, Bordon opinion is so infirm that if a lawyer accepted and relied on the opinions which Judge Hill expressed in that concurrence, that lawyer would be taking an approach that no reasonable lawyer would take, which would also seem to suggest that Judge Hill's conclusion in that regard was unreasonable. That conclusion would be particularly ironic in light of the fact that in the § 2255 Motion, Bordon's current counsel relied on Judge Hill's concurrence (which he mistakenly labeled a "dissent) to support Bordon's position, see [D.E. 285], at 3, and it is difficult to imagine he would rely on a concurrence that he thought was so infirm by virtue of its author's failure to identify the appropriate procedure for obtaining review of Bordon's case in light of Booker.
Because Bordon's former counsel's actions were not constitutionally ineffective, Bordon is not entitled to relief based on his second argument.
RECOMMENDATION
For the foregoing reasons, it is respectfully recommended that the Court DENY Luis Adel Bordon's ("Bordon") Motion to Vacate, Set Aside, and Correct Sentence pursuant to 28 U.S.C. § 2255 [DE 285].
The parties have ten (10) days from the date of service of this Report and Recommendation to file written objections, if any, with the Honorable James Lawrence King, United States District Judge. See 28 U.S.C. § 636. Failure to file timely objections may bar the parties from attacking on appeal the factual findings contained in this Report and Recommendation. See LoConte v. Dugger, 847 F.2d 745, 750 (11th Cir. 1988).
RESPECTFULLY SUBMITTED at the United States Courthouse, Miami, Florida.