United States District Court, M.D. Florida, Tampa Division
D. MERRYDAY UNITED STATES DISTRICT JUDGE.
Thamar James moves (Doc. 1) under 28 U.S.C. § 2255 to
vacate his sentence. James challenges the validity of his
conviction for possession with intent to distribute less than
five grams of cocaine base. James serves 262 months of
imprisonment. The United States admits that James timely
moved to vacate. (Doc. 12 at 3) Also, James moves to
supplement the motion. (Docs. 4, 23, and 24)
February 9, 2009, a Tampa police officer attempted to stop a
vehicle for illegal window tint. The officer witnessed the
driver, a man with medium-length dreadlocks and a black
shirt, drop a plastic bag containing a white substance in a
driveway. A test revealed that the plastic bag contained 5.8
grams of cocaine base.
the vehicle stopped, the officer saw the driver crawl from
the driver's seat to the backseat. The officer approached
the vehicle and observed two passengers, each with short hair
and a white shirt. The officer identified James, based on his
dreadlocks and black shirt, as both the driver and the person
who dropped the plastic bag.
of the indictment charged James with possession with intent
to distribute five grams or more of a mixture and substance
containing cocaine base under 21 U.S.C. §§
841(a)(1) and (b)(1)(B)(iii). (Doc. 1 in 09-cr-89) In 2009 a
jury convicted James of the lesser offense of possession with
intent to distribute less than five grams of cocaine base
under 21 U.S.C. § 841(b)(1)(C). Offense Level 34 and
Criminal History Category VI yielded an advisory guidelines
range of 262 to 327 months of imprisonment. The circuit court
affirmed James's sentence of 262 months of
imprisonment. United States v. James, 642 F.3d
1333 (11th Cir. 2011), cert. denied, 565 U.S. 958
ASSISTANCE OF COUNSEL
claims ineffective assistance of counsel, a difficult claim
to sustain. “[T]he cases in which habeas petitioners
can properly prevail on the ground of ineffective assistance
of counsel are few and far between.” Waters v.
Thomas, 46 F.3d 1506, 511 (11th Cir. 1995) (en
banc) (quoting Rogers v. Zant, 13 F.3d 384, 386
(11th Cir. 1994)). As Sims v. Singletary, 155 F.3d
1297, 1305 (11th Cir. 1998), explains, Strickland v.
Washington, 466 U.S. 668 (1984), governs an ineffective
assistance of counsel claim:
The law regarding ineffective assistance of counsel claims is
well settled and well documented. In Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984), the Supreme Court set forth a two-part test for
analyzing ineffective assistance of counsel claims. According
to Strickland, first, the defendant must show that
counsel's performance was deficient. This requires
showing that counsel made errors so serious that counsel was
not functioning as the “counsel” guaranteed the
defendant by the Sixth Amendment. Second, the defendant must
show that the deficient performance prejudiced the defense.
This requires showing that counsel's errors were so
serious as to deprive the defendant of a fair trial, a trial
whose result is reliable. Strickland, 466 U.S. at
687, 104 S.Ct. 2052.
requires proof of both deficient performance and consequent
prejudice. Strickland, 466 U.S. at 697 (“There
is no reason for a court deciding an ineffective assistance
claim . . . to address both components of the inquiry if the
defendant makes an insufficient showing on one.”);
Sims, 155 F.3d at 1305 (“When applying
Strickland, we are free to dispose of
ineffectiveness claims on either of its two grounds.”).
“[C]ounsel 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. “[A] court
deciding an actual ineffectiveness claim must judge the
reasonableness of counsel's challenged conduct on the
facts of the particular case, viewed as of the time of
counsel's conduct.” Strickland, 466 U.S.
at 690. Strickland requires that “in light of
all the circumstances, the identified acts or omissions were
outside the wide range of professionally competent
assistance.” 466 U.S. at 690.
must demonstrate that counsel's alleged error prejudiced
the defense because “[a]n error by counsel, even if
professionally unreasonable, does not warrant setting aside
the judgment of a criminal proceeding if the error had no
effect on the judgment.” Strickland, 466 U.S.
at 691-92. To meet this burden, James must show “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.” Strickland, 466 U.S. at 694.
cautions that “strategic choices made after thorough
investigation of law and facts relevant to plausible options
are virtually unchallengeable; and strategic choices made
after less than complete investigation are reasonable
precisely to the extent that reasonable professional
judgments support the limitations on investigation.”
466 U.S. at 690-91. James cannot meet his burden by showing
only that the avenue chosen by counsel proved unsuccessful.
The test has nothing to do with what the best lawyers would
have done. Nor is the test even what most good lawyers would
have done. We ask only whether some reasonable lawyer at the
trial could have acted, in the circumstances, as defense
counsel acted at trial . . . . We are not interested in
grading lawyers' performances; we are interested in
whether the adversarial process at trial, in fact, worked
White v. Singletary, 972 F.2d 1218, 1220-21 (11th
Cir. 1992); accord Chandler v. United States, 218
F.3d 1305, 1313 (11th Cir. 2000) (“To state the
obvious: the trial lawyers, in every case, could have done
something more or something different. So, omissions are
inevitable . . . . [T]he issue is not what is possible or
‘what is prudent or appropriate, but only what is
constitutionally compelled.'”) (en banc)
(quoting Burger v. Kemp, 483 U.S. 776, 794 (1987));
Jones v. Barnes, 463 U.S. 745, 751 (1983) (holding
that counsel has no duty to raise a non-frivolous claim).
purportedly advised James that the right to testify required
James to first cooperate with the United States. (Doc. 1 at
12) James alleges that, but for counsel's advice, James
would have testified that he owned the illicit drugs for
personal use. James asserts that the exculpatory testimony
would have changed the trial's outcome.
criminal defendant possesses a fundamental constitutional
right to testify at trial. Rock v. Arkansas, 483
U.S. 44, 51-53 (1987). “Defense counsel bears the
primary responsibility for advising the defendant of his
right to testify or not to testify, the strategic
implications of each choice, and that it is ultimately for
the defendant himself to decide.” United States v.
Teague, 953 F.2d 1525, 1533 (11th Cir. 1992).
counsel performed deficiently, the following colloquy ensured
that James understood fully the right to testify:
THE COURT: At this stage in a criminal case, almost always
the defendant has to consider a very important decision, and
that is the decision of whether or not that witness will
testify. That is not my decision to make by any means.
THE DEFENDANT: Yes, Sir.
THE COURT: But I wanted to discuss some things about that
decision with you to make sure that you understand how the