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Broomfield v. United States

United States District Court, M.D. Florida, Fort Myers Division

March 26, 2018

JAMES F. BROOMFIELD, JR., Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION AND ORDER

          JOHN E. STEELE, UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on petitioner's Motion Under 28 U.S.C. Section 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody (Cv. Doc. #1; Cr. Doc. #81)[1] filed on January 25, 2016. The government filed a Response in Opposition to Motion (Cv. Doc. #9) on April 6, 2016. For the reasons set forth below, the motion is denied.

         I.

         On May 1, 2013, a federal grand jury in Fort Myers, Florida returned a one count Indictment (Cr. Doc. #1) charging petitioner with possession of an AR-15 firearm and PMC 223A ammunition after having been convicted of felony offenses, in violation of 18 U.S.C. § 922(g)(1) and § 924(e). The Indictment identified three Florida state court cases which resulted in felony convictions: (1) Case No. 06-CF-014986: a conviction for possession of cocaine with intent, in violation of Fla. Stat. § 893.13; (2) Case No. 04-CG-002539: convictions for sale/delivery of controlled substance within 1, 000 feet of a school and possession of cocaine, both in violation of Fla. Stat. § 893.13, ; and (3) Case No. 04-CF-002540: convictions for sell/manufactured/delivered within 200 feet of public housing and possession of cocaine, both in violation of Fla. Stat. § 893.13. On September 5, 2013, a jury found petitioner guilty of possession of both the AR-15 rifle and the PMC 223A ammunition. (Cr. Doc. #50.)

         The Presentence Report (PSR) (Cr. Doc. #59) found petitioner qualified under the Armed Career Criminal Act (ACCA) by virtue of the prior convictions listed in the Indictment. (Cr. Doc. #59, ¶ 21.) The effect of an ACCA enhancement is to increase the statutory penalty from a maximum ten years imprisonment to a mandatory minimum of fifteen years imprisonment, and to increase the Sentencing Guidelines sentence calculation. The Sentencing Guidelines range was calculated at 188 to 235 months imprisonment (Id. at ¶ 74.)

         On December 16, 2013, the Court sentenced petitioner to 180 months imprisonment, followed by a term of supervised release. (Cr. Doc. #58.) Judgment (Cr. Doc. #60) was filed on December 17, 2013.

         Petitioner filed a direct appeal (Cr. Doc. #62) raising several issues, including: (1) whether the government adequately authenticated a video clip of petitioner in possession of a firearm; and (2) whether the trial court erred in determining that petitioner's three prior predicate convictions occurred on different occasions for purposes of the ACCA. On December 3, 2014, the Eleventh Circuit affirmed petitioner's conviction and sentence, but remanded for the limited purpose of correcting a clerical error in the judgment regarding the date the offense concluded. (Cr. Doc. #77); United States v. Broomfield, 591 Fed.Appx. 847 (11th Cir. 2014). The Corrected Judgment was issued on January 16, 2015. (Cr. Doc. #79.)

         On March 30, 2015, a Petition for a writ of certiorari was denied. Broomfield v. United States, 135 S.Ct. 1726 (2015).

         II.

         Petitioner asserts four claims of ineffective assistance of counsel. Petitioner asserts that his trial attorney provided ineffective assistance because counsel (1) failed to object to the ACCA enhancement on the basis that the underlying state convictions were not proper predicate convictions since possession of cocaine is not a “serious drug offense” under the ACCA (Ground One); (2) did not allow petitioner to testify as to the authenticity of the government's video exhibit, which would have resulted in an acquittal (Ground Two); and (3) failed to negotiate a guilty plea agreement without the ACCA enhancement (Ground Four). Petitioner also claims that his appellate attorney provided ineffective assistance because counsel failed to argue that the ACCA enhancement was unconstitutional under its residual clause, and instead incorrectly argued that a valid statute was unconstitutional (Ground Three).

         A. Evidentiary Hearing Standard

         A district court shall hold an evidentiary hearing on a habeas corpus petition “unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief. . . .” 28 U.S.C. § 2255(b). “[I]f the petitioner alleges facts that, if true, would entitle him to relief, then the district court should order an evidentiary hearing and rule on the merits of his claim.” Aron v. United States, 291 F.3d 708, 714-15 (11th Cir. 2002) (citation omitted). However, a district court is not required to hold an evidentiary hearing where the petitioner's allegations are patently frivolous, based upon unsupported generalizations, or affirmatively contradicted by the record. Id. at 715.

         A hearing is not necessarily required whenever ineffective assistance of counsel claims are asserted. Gordon v. United States, 518 F.3d 1291, 1301 (11th Cir. 2008). To establish entitlement to an evidentiary hearing for such claims, petitioner must “allege facts that would prove both that his counsel performed deficiently and that he was prejudiced by his counsel's deficient performance.” Hernandez v. United States, 778 F.3d 1230, 1232-33 (11th Cir. 2015).

         B. Ineffective Assistance of Counsel Standard

         The legal standard for ineffective assistance of counsel claims in a habeas proceeding is well established. To prevail on a claim of ineffective assistance of counsel, a habeas petitioner must demonstrate both that (1) counsel's performance was deficient because it fell below an objective standard of reasonableness, and (2) prejudice resulted because there is a reasonable probability that, but for the deficient performance, the result of the proceeding would have been different. Hinton v. Alabama, U.S., 134 S.Ct. 1081, 1087-88 (2014) (citing Strickland v. Washington, 466 U.S. 668, 687, 694 (1984) and Padilla v. Kentucky, 559 U.S. 356, 366 (2010)). “Because a petitioner's failure to show either deficient performance or prejudice is fatal to a Strickland claim, a court need not address both Strickland prongs if the petitioner fails to satisfy either of them.” Kokal v. Sec'y, Dep't of Corr., 623 F.3d 1331, 1344 (11th Cir. 2010) (citations omitted).

         The proper measure of attorney performance is simply reasonableness under prevailing professional norms considering all the circumstances. Hinton, 134 S.Ct. at 1088 (citations omitted). “A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.” Strickland, 466 U.S. at 689. See also Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000) (the Court looks to facts at the time of counsel's conduct). This judicial scrutiny is highly deferential, and the Court adheres to a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689-90. To be objectively unreasonable, the performance must be such that no competent counsel would have taken the action. Rose v. McNeil, 634 F.3d 1224, 1241 (11th Cir. 2011); Hall v. Thomas, 611 F.3d 1259, 1290 (11th Cir. 2010). Additionally, an attorney is not ineffective for failing to raise or preserve a meritless issue. United States v. Winfield, 960 F.2d 970, 974 (11th Cir. 1992); Ladd v. Jones, 864 F.2d 108, 109-10 (11th Cir. 1989).

         The same deficient performance and prejudice standards apply to appellate counsel. Smith v. Robbins, 528 U.S. 259, 285-86 (2000); Roe v. Flores-Ortega, 528 U.S. at 476-77. If the Court finds there has been deficient performance, it must examine the merits of the claim omitted on appeal. If the omitted claim would have had a reasonable probability of success on appeal, then the deficient performance resulted in prejudice. Joiner v. United States, 103 F.3d 961, 963 (11th Cir. 1997). Nonmeritorious claims which are not raised on direct appeal do not constitute ineffective assistance of counsel. Diaz v. Sec'y for the Dep't of Corr., 402 F.3d 1136, 1144-45 (11th Cir. 2005).

         III.

         A. Evidentiary Hearing

         As set forth below, the record of the case establishes that petitioner is not entitled to relief on any of the asserted grounds. The Court finds that an evidentiary hearing is not warranted.

         B. Ineffective Assistance of Trial Counsel Claims

         (1) Ground One: Failure to Challenge ACCA Predicate Offenses

         Petitioner argues that trial counsel provided ineffective assistance by failing to argue that “possession of cocaine” did not qualify as a serious drug offense under the ACCA. Had counsel done so, petitioner argues, his sentence would not have been enhanced under the ACCA.[1]

         A defendant convicted of possession of a firearm by a convicted felon under 18 U.S.C. § 922(g) generally faces a maximum statutory penalty of ten years imprisonment. 18 U.S.C. § 924(a)(2). A defendant who has three previous convictions “for a violent felony or a serious drug offense, or both, committed on occasions different from one another” shall be imprisoned for not less than fifteen years. 18 U.S.C. § 924(e)(1). The Indictment cited ...


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