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Hilton v. United States

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

March 29, 2018

ERVIN HILTON, JR., Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          MARCIA MORALES HOWARD UNITED SLATES DISTRICT JUDGE.

         This case is before the Court on Petitioner Ervin Hilton, Jr.'s Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (Civ. Doc. 1, Motion to Vacate)[1] and Memorandum in Support (Civ. Doc. 3, Memorandum). The United States has responded (Civ. Doc. 7, Response). Hilton also amended his § 2255 motion to add a claim that his Armed Career Criminal Act (ACCA) sentence is unlawful in light of Johnson v. United States, 135 S.Ct. 2551 (2015). (Civ. Doc. 8, Motion to Amend). The United States has responded to this claim as well (Civ. Doc. 15, Supplemental Response), and Hilton has replied (Civ. Doc. 18, Reply).

         Pursuant to 28 U.S.C. § 2255 and Rule 8(a) of the Rules Governing Section 2255 Proceedings[2], the Court has considered the need for an evidentiary hearing and determines that an evidentiary hearing is not necessary to resolve the merits of this action. See Aron v. United States, 291 F.3d 708, 714-15 (11th Cir. 2002) (an evidentiary hearing on a § 2255 petition is not required when the petitioner asserts allegations that are affirmatively contradicted by the record or patently frivolous, or if in assuming the facts that he alleges are true, he still would not be entitled to any relief); Dickson v. Wainwright, 683 F.2d 348, 351 (11th Cir. 1982) (“On habeas a federal district court need not conduct an evidentiary hearing if it can be conclusively determined from the record that the petitioner was not denied effective assistance of counsel.”); Patel v. United States, 252 F. App'x 970, 975 (11th Cir. 2007).[3] For the reasons set forth below, Hilton's Motion to Vacate is due to be denied.

         I. Background

         On February 13, 2013, a grand jury sitting in the Middle District of Florida indicted Hilton on five counts of distributing crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) (Counts One through Five), and one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e) (Count Six). (Crim. Doc. 21, Indictment). The Indictment listed nine prior felony convictions, three of which were for the sale or delivery of cocaine in Duval County, Florida. Id. at 4-5.

         Hilton pled guilty to Counts Five and Six under a written plea agreement. (Crim. Doc. 47, Plea Agreement; Crim. Doc. 76, Plea Transcript [“Plea Tr.”]). In exchange, the government agreed to dismiss Counts One through Four. Plea Agreement at 3, ¶ A.4. As part of his plea to Count Six, Hilton specifically pled guilty under 18 U.S.C. §§ 922(g)(1) and 924(e). Id. at 1, ¶A.1. The latter section, § 924(e), is better known as the “Armed Career Criminal Act” or ACCA. It provides for a 15-year mandatory minimum sentence for those who possess a firearm and have three or more prior convictions “for a violent felony or a serious drug offense, or both, committed on occasions different from one another.” 18 U.S.C. § 924(e)(1). Hilton admitted that he had nine prior felony convictions, three of which were for: (1) the sale or delivery of cocaine, on or about September 19, 1990; (2) the sale or delivery of cocaine, on or about April 8, 1992; and (3) the sale of cocaine, on or about December 28, 1995. Plea Agreement at 23, ¶¶ 3, 5, 6. During the plea colloquy, Hilton acknowledged that he had these prior convictions and did not contest their existence or validity. Plea Tr. at 11-12, 26-27. Hilton recognized that by virtue of his guilty plea to Count Six, he faced a mandatory minimum prison sentence of 15 years and a maximum sentence of life. Plea Agreement at 2, ¶ A.2; Plea Tr. at 12-13.[4] Having been thoroughly advised by the Court and his attorney about the nature and consequences of pleading guilty, see Plea Tr. at 6-17, Hilton pled guilty to Counts Five and Six, id. at 24. The government read aloud the factual basis, id. at 25-27, which Hilton admitted was true, id. at 27. Hilton affirmed that his guilty plea was free and voluntary, id. at 28, and the Court accepted his plea (Crim. Doc. 51, Acceptance of Plea and Adjudication of Guilt).

         At the first part of his sentencing hearing, which took place February 10, 2014, Hilton expressed confusion and frustration about his mandatory minimum, and specifically, the fact that the United States did not file a motion for a substantial assistance reduction. (See, Crim. Doc. 77, Sentencing Transcript, Volume I [“Sent. Tr., Vol. I”] at 3-5). Hilton acknowledged that he pled guilty aware that a 15-year mandatory minimum applied, and that he was aware it was within the government's sole discretion to decide whether to move for a substantial assistance reduction. Id. at 4, 15; accord Plea Tr. at 21-22. Nevertheless, Hilton had expected the government to file a substantial assistance reduction because he had tried to cooperate - even though the information he provided did not turn out to be useful. See Sent. Tr., Vol. I at 6-7. Hilton's sentencing counsel, Maurice Grant, relayed that he and Hilton's former counsel, Jim Burke, had tried to explain to Hilton that he was not assured of a substantial assistance reduction. Id. at 9. Despite counsel's efforts to explain the issue, however, Hilton did not seem to understand. Id. at 11. Hilton's confusion was such that Mr. Grant proposed appointing new counsel, id. at 11-12, and the prosecutor suggested that it might be easier to allow Hilton to withdraw his guilty plea and go to trial, id. at 13. Instead of accepting either suggestion at that time, the Court continued the sentencing hearing to allow Mr. Grant and Hilton to decide how he wanted to proceed. Id. at 17-18.

         On April 21, 2014, the Court reconvened the sentencing hearing, with Hilton having evidently decided not to withdraw his guilty plea and to keep Mr. Grant as counsel. (See generally, Crim. Doc. 79, Sentencing Transcript, Volume II [“Sent. Tr., Vol. II”]). Neither he nor the government had any objection to the Presentence Investigation Report (PSR) or the Sentencing Guidelines calculations. Id. at 3-4. Consistent with the guilty plea, counsel conceded that Hilton qualified for a sentence under the ACCA. Id. at 10. The Court sentenced Hilton to the mandatory minimum term of imprisonment of 15 years, or 180 months, running concurrently with a 60-month prison sentence on Count Five. Id. at 41-42; (see also Crim. Doc. 72, Judgment).

         The Court entered judgment on April 23, 2014. Hilton, who waived the right to appeal under his plea agreement, [5] did not file a notice of appeal.

         On April 5, 2015, less than one year later, Hilton timely filed the instant Motion to Vacate. See Motion to Vacate at 13. In the Motion to Vacate, Hilton raises four claims: (1) counsel was ineffective because he misadvised Hilton about the consequences of filing an appeal, which dissuaded him from appealing his ACCA sentence, Memorandum at 3-4; (2) counsel was ineffective for failing to argue that his ACCA predicate convictions were not “serious drug offenses, ” id. at 4-5; (3) his ACCA sentence is unlawful because the United States failed to provide Shepard[6] documents to support the prior convictions, id. at 6; and (4) he is “actually innocent” of the ACCA sentence, id. at 6-7. Later, Hilton amended the Motion to Vacate to add a claim that his ACCA sentence is illegal in light of Johnson, 135 S.Ct. 2551.

         II. Discussion

         Pursuant to Title 28, United States Code, Section 2255, a person in federal custody may move to vacate, set aside, or correct his sentence. Section 2255 permits such collateral challenges on four specific grounds: (1) the imposed sentence was in violation of the Constitution or laws of the United States; (2) the court did not have jurisdiction to impose the sentence; (3) the imposed sentence exceeded the maximum authorized by law; or (4) the imposed sentence is otherwise subject to collateral attack. 28 U.S.C §2255(a) (2008). Only jurisdictional claims, constitutional claims, and claims of error that are so fundamentally defective as to cause a complete miscarriage of justice will warrant relief through collateral attack. United States v. Addonizio, 442 U.S. 178, 184-86 (1979). A petitioner's challenge to his sentence based on a Sixth Amendment claim of ineffective assistance of counsel is normally considered in a collateral attack. United States v. Teague, 953 F.2d 1525, 1534 n. 11 (11th Cir. 1992). Likewise, a petitioner's claim that he was illegally sentenced under the ACCA is cognizable on collateral review. Spencer v. United States, 773 F.3d 1132, 1143 (11th Cir. 2014) (en banc).

         As with any Sixth Amendment ineffective assistance of counsel claim, a § 2255 petitioner must demonstrate both: (1) that his counsel's conduct amounted to constitutionally deficient performance, and (2) that his counsel's deficient performance sufficiently prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); Weeks v. Jones, 26 F.3d 1030, 1036 (11th Cir. 1994). In determining whether the petitioner has satisfied the first requirement, i.e. that counsel performed deficiently, the Court adheres to the standard of reasonably effective assistance. Weeks, 26 F.3d at 1036. The petitioner must show, in light of all the circumstances, that counsel's performance fell outside the “wide range of professionally competent assistance.” Id. To satisfy the second requirement, that counsel's deficient performance prejudiced the defendant, the petitioner must show that there is a reasonable probability that, but for counsel's error, the result of the proceeding would have been different. Id. at 1036-37 (citing Strickland, 466 U.S. at 694). In determining whether a petitioner has met the two prongs of deficient performance and prejudice, the Court considers the totality of the evidence. Strickland, 466 U.S. at 695. However, because both prongs are necessary, “there is no reason for a court… to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one.” Id. at 697; see also Wellington v. Moore, 314 F.3d 1256, 1261 n. 1 (11th Cir. 2002) (“We need not discuss the performance deficiency component of [petitioner's] ineffective assistance claim because failure to satisfy the prejudice component is dispositive.”).

         A. Ground One

         At first blush, Hilton's claim might be read as suggesting either that counsel failed to file an appeal as instructed, or that counsel failed to consult him about an appeal. See Motion to Vacate at 4. However, careful reading of Hilton's filings reveals that such is not the true nature of his claim. Rather, Hilton alleges that

counsel misinformed Petitioner that he would be prosecuted on the counts dismissed by the Government pursuant to the plea agreement, and sentenced to an additional twenty (20) years imprisonment if he elected to pursue a direct appeal from the judgment of conviction. Petitioner maintains that, based solely upon this advice of counsel, he succumbed to counsel's reluctance and refusals to proceed with an appeal.

Memorandum at 3 (emphasis added). Hilton further alleges that he “was induced to forfeit his appeal solely upon reliance on the misadvice of counsel regarding the consequences of pursuing such an appeal.” Id. at 4 (emphasis added). Hilton's claim implies that counsel discussed an appeal with him, advised against it, and that Hilton followed counsel's advice. What Hilton alleges is not that he directed counsel to file an appeal and counsel failed to do so, or that counsel failed to consult him about an appeal. Instead, Hilton argues that counsel misadvised him about the consequences of appealing his sentence, and that he relied on the alleged misadvice in deciding to forego an appeal.

         Even assuming that counsel advised Hilton as he alleges, the Court does not find that counsel's advice was so objectively unreasonable as to be deficient under Strickland.[7]When Hilton pled guilty, he knowingly and voluntarily waived the right to appeal his sentence. Plea Agreement at 16, ΒΆ B.6; Plea Tr. at 23-24. As explained below, had Hilton appealed anyway, he would have either (1) been in breach of the plea agreement, or (2) circumvented the appeal-waiver by arguing that the guilty plea was not knowing and voluntary. Either route could ...


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