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Brinkley v. United States

United States District Court, M.D. Florida, Tampa Division

November 3, 2017

TYRONE MICHAEL BRINKLEY, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          JAMES D. WHITTEMORE, United States District Judge

         BEFORE THE COURT are Petitioner's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (CV Dkt. 1), Petitioner's memorandum in support (CV Dkt. 1 at 14-21), the Government's Response (CV Dkt. 7), and Petitioner's Reply (CV Dkt. 10). After review, Petitioner's Section 2255 motion is DENIED.

         Procedural Background

         Petitioner waived indictment and was charged by Information with bank burglary (Count One), bank larceny of more than $1, 000 (Count Two), and two counts of bank larceny of less than $ 1, 000 (Counts Three and Four). (CR Dkts. 13, 14). He pleaded guilty without a plea agreement (CR Dkts. 22, 25, 26), and was sentenced to 96 months on Counts One and Two, and 12 months on Counts Three and Four, concurrent. (CR Dkt. 38). On appeal, he challenged his sentence as procedurally and substantively unreasonable and also argued that the district court failed to explain its rationale for upward departure under United States Sentencing Guidelines § 4A 1.3. See United States v. Brinkley, 566 Fed.Appx. 878, 878-79 (11th Cir. 2014). The Eleventh Circuit affirmed. Id.

         In his § 2255 motion, Petitioner raised the following grounds:[1]

         Ground One:

COUNSEL WAS INEFFECTIVE AND REPRESENTED THE PETITIONER BELOW STANDARDS BASED ON A[N] INVOLUNTARY[, ] UNINTELLIGENT!, ] AND UNKNOWING PLEA AGREEMENT.

(CVDkt 1 at 16).

         Ground Two:

Petitioner's plea is ... involuntary, unintelligent, and unknowing[] because[] he asked counsel from the very beginning, would he be grouped, counsel told him he would not. And that Petitioner had avoided the grouping issue altogether. But[, ] when petitioner was sentenced he received grouping enhancements!] and other enhancements that counsel promised him he would not receive in the event he pled guilty.

(CV Dkt 1 at 17).

         Ground Three:

Counsel was ineffective for influencing, misguiding, and misleading the petitioner into believing he was going to a bail hearing... when in fact it was a plea hearing.

(CVDkt. 1 at 18).

         Ground Four:

Petitioner was never indicted for this case. . . . Counsel verbally forced and coerced the petitioner into an informational plea, even though petitioner wanted to exhaust his Fifth Amendment due process rights before a jury[.]

(CVDkt. 1 at 18).

         Ground Five:

Counsel never informed the petitioner that he would receive upward variance when he pled guilty.

(CVDkt. 1 at 18).

         Discussion

         In support of his contention that his guilty pleas were unknowing and involuntary, Petitioner contends that his counsel was ineffective in providing pre-plea advice. A two-part test is used to analyze ineffective assistance of counsel claims. Strickland v. Washington, 466 U.S. 668, 687 (1984). The petitioner must,

[f]irst, . . . 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 ...

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