Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Walker

United States District Court, N.D. Florida, Tallahassee Division

February 23, 2018

UNITED STATES OF AMERICA
v.
PHILLIP WALKER III

          REPORT AND RECOMMENDATION

          GARY R. JONES United States Magistrate Judge

         This matter is before the Court upon Petitioner's "Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a person in Federal Custody" (ECF No. 209); the Government's Response (ECF No. 241); and Petitioner's Reply. (ECF No. 253.) The case was referred to the undersigned for the issuance of all preliminary orders and any recommendations to the district court regarding dispositive matters. See N.D. Fla. Loc. R. 72.2; see also 28 U.S.C. § 636(b) and Fed.R.Civ.P. 72(b). After a review of the record and the arguments presented, the Court concludes that Petitioner has not raised any issue requiring an evidentiary hearing and that the § 2255 Motion should be denied. See Rules 8(a) and (b) Governing Section 2255 Cases.

         I. BACKGROUND

         On October 8, 2014, a grand jury returned a 21-count indictment charging Petitioner and four co-defendants with crimes based on their participation in a conspiracy to file fraudulent income tax returns and Social Security claims using stolen Personal Identification Information (PII). (ECF Nos. 1 & 82.)

         On October 23, 2014, Petitioner appeared before the Court and was arraigned on the charges. (ECF No. 43.) The Court appointed attorney Robert Alexander Morris to represent Petitioner. (ECF No. 40.) Petitioner subsequently retained attorney Charles E. Hobbs II. (ECF No. 45.) On December 3, 2014, Petitioner entered into a plea agreement in which he agreed to plead guilty to Counts One, Three, Eight, Fourteen, Nineteen, and Twenty-One in exchange for the Government's promise to dismiss the remaining counts. (ECF No. 81.)

         Count One charged Petitioner with Conspiracy to Commit Wire Fraud, in violation of Title 18, United States Code, Sections 1343 and 1349; Counts Three and Eight charged Petitioner with Wire Fraud, Aiding and Abetting, in violation of Title 18, United States Code, Sections 1343 and 2; Counts Fourteen and Nineteen charged Petitioner with Theft of Government Funds, Aiding and Abetting, in violation of Title 18, United States Code, Sections 641 and 2; and Count Twenty-One charged Petitioner with Aggravated Identity Theft, Aiding and Abetting, in violation of Title 18, United States Code, Sections 1028A(a)(1) and 2. (ECF No. 1.) On the same day, Petitioner appeared before United States District Judge Mark E. Walker for the purpose of considering his entry of a guilty plea. (ECF No. 80.) Judge Walker accepted the plea agreement and Petitioner's plea of guilty. Id.

         The Final Presentence Investigation Report ("PSR") reflected that Petitioner had a base offense level of 7. (ECF No. 146, PSR ¶ 55.) After adjusting upward twenty-four levels based on Specific Offense Characteristics, and adjusting downward three levels for acceptance of responsibility, Petitioner had a total offense level of 28. Id. at ¶¶ 56-65. Petitioner's criminal history category was I. Id. at ¶ 70. The applicable Guidelines range was 78 to 97 months as to Counts One, Three, Eight, Fourteen, and Nineteen. Id. at ¶ 104. The Guidelines sentence for Count Twenty-One was 24 months' imprisonment. Id.

         On July 22, 2015, Judge Walker sentenced Petitioner to 24 months' imprisonment as to Counts One, Three, Eight, Fourteen, and Nineteen, and 24 months as to Count Twenty-One, to run consecutively, for a total of 48 months; a three-year term of supervised release as to Counts One, Three, Eight, Fourteen, and Nineteen, and a one-year term as to Count Twenty-One, to run concurrently; restitution in the amount of $463, 679.01 jointly and severally with his co-defendants; and a $600 special monetary assessment. (ECF No. 191.)

         Petitioner did not appeal to the Eleventh Circuit Court of Appeals. On July 29, 2016, Petitioner timely filed the instant § 2255 Motion. (ECF Nos. 209 & 210.) In his Motion, Petitioner raises two grounds for relief: 1) Petitioner's counsel rendered ineffective assistance for failing to argue for a minor-role sentence reduction pursuant to U.S.S.G. § 3B1.2; and 2) Petitioner is entitled to a retroactive sentence reduction under Amendment 794 to the Sentencing Guidelines.

         II. DISCUSSION

A. General Legal Standard

         Collateral review is not a substitute for direct appeal, and therefore the grounds for collateral attack on final judgments pursuant to Section 2255 are extremely limited. A prisoner is entitled to relief under Section 2255 if the court imposed a sentence that: (1) violated the Constitution or laws of the United States, (2) exceeded its jurisdiction, (3) exceeded the maximum authorized by law, or (4) is otherwise subject to collateral attack. See 28 U.S.C. § 2255(a); McKay v. United States, 657 F.3d 1190, 1194 n.8 (11th Cir. 2011). "Relief under 28 U.S.C. § 2255 'is reserved for transgressions of constitutional rights and for that narrow compass of other injury that could not have been raised in direct appeal and would, if condoned, result in a complete miscarriage of justice.'" Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004) (citations omitted). The "fundamental miscarriage of justice" exception recognized in Murray v. Carrier, 411 U.S. 478, 496 (1986), provides that it must be shown that the alleged constitutional violation "has probably resulted in the conviction of one who is actually innocent ....”

         The law is well established that a district court need not reconsider issues raised in a Section 2255 motion which have been resolved on direct appeal. Stoufflet v. United States, 757 F.3d 1236, 1239 (11th Cir. 2014); Rozierv. United States, 701 F.3d 681, 684 (11th Cir. 2012); United States v. Nyhuis, 211 F.3d 1340, 1343 (11th Cir. 2000); Mills v. United States, 36 F.3d 1052, 1056 (11th Cir. 1994). Once a matter has been decided adversely to a defendant on direct appeal, it cannot be re-litigated in a collateral attack under Section 2255. Nyhuis, 211 F.3d at 1343 (quotation omitted). Broad discretion is afforded to a court's determination of whether a particular claim has been previously raised. Sanders v. United States, 373 U.S. 1, 16 (1963) ("identical grounds may often be proved by different factual allegations ... or supported by different legal arguments ... or couched in different language . . . or vary in immaterial respects").

         Because a motion to vacate under Section 2255 is not a substitute for direct appeal, issues which could have been raised on direct appeal are generally not actionable in a Section 2255 motion and will be considered procedurally barred. Lynn, 365 F.3d at 1234-35; Bousleyv. United States, 523 U.S. 614, 621 (1998); McKay v. United States, 657 F.3d 1190, 1195 (11th Cir. 2011). An issue is "'available' on direct appeal when its merits can be reviewed without further factual development." Lynn, 365 F.3d at 1232 n.14 (quoting Mills, 36 F.3d at 1055). Absent a showing that the ground of error was unavailable on direct appeal, a court may not consider the ground in a Section 2255 motion unless the defendant establishes (1) cause for not raising the ground on direct appeal, and (2) actual prejudice resulting from the alleged error, that is, alternatively, that he is "actually innocent." Lynn, 365 F.3d at 1234; Bousley, 523 U.S. at 622 (citations omitted). To show cause for procedural default, a defendant must show that "some objective factor external to the defense prevented [him] or his counsel from raising his claims on direct appeal and that this factor cannot be fairly attributable to [defendant's] own conduct." Lynn, 365 F.3d at 1235. A meritorious claim of ineffective assistance of counsel can constitute cause. See Nyhuis, 211 F.3d at 1344.

         Ineffective assistance of counsel claims are generally not cognizable on direct appeal and are properly raised by a § 2255 motion regardless of whether they could have been brought on direct appeal. Massaro v. United States, 538 U.S. 500, 503 (2003); see also United States v. Franklin, 694 F.3d 1, 8 (11th Cir. 2012); United States v. Campo, 840 F.3d 1249, 1257 n.5 (11th Cir. 2016). In order to prevail on a constitutional claim of ineffective assistance of counsel, a defendant must demonstrate both that counsel's performance was below an objective and reasonable professional norm and that he was prejudiced by this inadequacy. Strickland v. Washington, 466 U.S. 668, 686 (1984); Williams v. Taylor, 529 U.S. 362, 390 (2000); Darden v. United States, 708 F.3d 1225, 1228 (11th Cir. 2013). In applying Strickland, a court may dispose of an ineffective assistance claim if a defendant fails to carry his burden on either of the two prongs. Strickland, 466 U.S. at 697; Brown v. United States, 720 F.3d 1316, 1326 (11th Cir. 2013); Holladayv. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000) ("[T]he court need not address the performance prong if the defendant cannot meet the prejudice prong, or vice versa.").

         In determining whether counsel's conduct was deficient, this court must, with much deference, consider "whether counsel's assistance was reasonable considering all the circumstances." Strickland, 466 U.S. at 688; see also Dingle v. Secy for Dept of Com, 480 F.3d 1092, 1099 (11th Cir. 2007). Reviewing courts are to examine counsel's performance in a highly deferential manner and "must indulge a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance." Hammond v. Hall,586 F.3d 1289, 1324 (11th Cir. 2009) (quoting Strickland, 466 U.S. at 689); see also Chandler v. United States, 218 F.3d 1305, 1315-16 (11th Cir. 2000) (discussing presumption of reasonableness of counsel's conduct); Lancaster v. Newsome,880 F.2d 362, 375 (11th Cir. 1989) (emphasizing that petitioner was "not entitled to error-free representation"). Counsel's performance must be evaluated with a high degree of deference and without the distorting effects of hindsight. Strickland, 466 U.S. at 689. To show counsel's performance was unreasonable, a defendant must establish that "no competent counsel would have taken the action that his counsel did take." Gordon v. United States, 518 F.3d 1291, 1301 (11th Cir. 2008) (citations omitted); Chandler, 218 F.3d at 1315. "[T]he fact that a particular defense ultimately proved to ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.