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Ceasar v. United States

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

April 26, 2018

TIMOTHY CEASAR, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION AND ORDER [1]

          SHERI POLSTER CHAPPELL, UNITED STATES DISTRICT JUDGE.

         Pending before the Court is Petitioner Timothy Rasheed Ceasar's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct a Sentence by a Person in Federal Custody (Doc. 1; Cr-Doc. 58)[2] and Memorandum of Law in Support (Doc. 2; Cr-Doc. 59). The United States opposes Ceasar's motion. (Doc. 8). The Court gave Cesar an opportunity to file a reply (Doc. 9), but he failed to do so. Because Ceasar is not entitled to any relief under § 2255, the Court denies his motion.

         BACKGROUND

         In August 2015, a federal grand jury indicted Ceasar for possessing a firearm and ammunition as a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). (Cr-Doc. 1). He pled guilty under a written plea agreement while represented by counsel, Thomas DeMine, III. (Cr-Doc. 35; Cr-Doc. 36). The Court accepted Ceasar's plea and set sentencing for June 15, 2016. (Cr-Doc. 37; Cr-Doc. 38).

         The United States Probation Office prepared a presentence investigation report (“PSR”). (Cr-Doc. 51). Ceasar's base offense level was 20 as he committed the firearm offense after being convicted of a “controlled substance offense.” (Cr-Doc. 51 at ¶ 27). The base offense level was increased twice by four levels because (1) the firearm had an obliterated and unidentifiable serial number; and (2) Ceasar possessed the firearm in connection with another felony. (Cr-Doc. 51 at ¶¶ 29-30). After a three-level reduction for acceptance of responsibility, Ceasar's total offense level was 25, and his criminal history category was V. This resulted in an advisory guidelines' range of 100 to 120 months' imprisonment. (Cr-Doc. 57). The Court varied below the range and sentenced Ceasar to eighty-four months of imprisonment and thirty-six months of supervised release. (Cr-Doc. 56; Cr-Doc. 57 at 2). Ceasar did not file a direct appeal, but he is now seeking to collaterally attack his conviction and sentence under § 2255. (Doc. 2 at 1).

         Liberally construing Ceasar's § 2255 motion and memorandum of law, he moves to vacate his sentence on four grounds. (Doc. 1 at 6-8). Three of the four are ineffective assistance of counsel claims. He argues that his counsel was ineffective for (1) not objecting to the Court using his prior drug conviction to calculate his base offense level; (2) not objecting to the four-level enhancement for possessing the firearm in connection with another felony; and (3) not filing a direct appeal when told to do so. Ceasar's other claim is that his prior conviction for sale and delivery of cocaine in violation of Florida Statute § 893.13(1)(a)(1) is not a “controlled substance offense” under the guidelines. Ceasar did not waive his right to collaterally attack his sentence in this plea agreement. (Doc. 8 at 6).

         LEGAL STANDARDS

         A. 28 U.S.C. § 2255

         “A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence imposed is in violation of the Constitution . . . or is otherwise subject to attack, may move the court which imposed the sentence to vacate, set aside, or correct the sentence.” 28 U.S.C. § 2255. If a court finds a claim under § 2255 to be valid, the court “shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.” Id. To obtain this relief on collateral review, a petitioner must clear a significantly higher hurdle than would exist on direct appeal. See United States v. Frady, 456 U.S. 152, 166 (1982) (rejecting the plain error standard as not sufficiently deferential to a final judgment). Ceasar has not cleared this hurdle.

         B. Evidentiary hearing

         A district court must hold an evidentiary hearing on a motion to vacate “[u]nless 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). “The prisoner is entitled to an evidentiary hearing if he alleges facts that, if true, would entitled him to relief.” Shaw v. United States, ___ Fed.Appx. ___ 2018 WL 1603438, at *1 (11th Cir. Apr. 5, 2018) (citation omitted); see also Aron v. United States, 291 F.3d 708, 715 n.6 (11th Cir. 2002) (stating “[i]f the [petitioner's] allegations are not affirmatively contradicted by the record and the claims not patently frivolous, the district court is required to hold an evidentiary hearing”). A hearing is not required, however, “if a petitioner's claims ‘are merely conclusory allegations unsupported by specifics, or if the record refutes the applicant's factual allegations or otherwise precludes habeas relief.'” Carver v. United States, -- Fed.Appx. -- 2018 WL 388620, at *3 (11th Cir. Jan. 12, 2018) (citing Allen v. Sec'y, Fla. Dep't of Corr., 611 F.3d 740, 745 (11th Cir. 2010)).

         As to be discussed, Ceasar has alleged no facts that entitle him to relief under § 2255. He makes unsupported allegations of ineffective assistance of counsel that the record conclusively refutes. See Shaw, 2018 WL 1603438, at *1 (stating a court need not hold a hearing “if the allegations are patently frivolous, based upon unsupported generalizations, or affirmatively contradicted by the record”). The Court thus need not hold an evidentiary hearing.

         C. Timeliness

         Pertinent here, a petitioner has one year from “the date on which judgment of conviction becomes final” to file a motion under § 2255. 28 U.S.C. § 2255(f)(1). Ceasar filed this motion on June 7, 2017, which was within one year of his conviction being final. (Doc. 1 at 11). The Government concedes that Ceasar's motion is timely. (Doc. 8 at 4). The Court finds so too.

         INEFFECTIVE ASSISTANCE OF COUNSEL

         The Sixth Amendment to the United States Constitution guarantees criminal defendants the right to effective assistance of counsel. To prevail on a claim of ineffective assistance of counsel, the petitioner must show that (1) his counsel's performance was deficient; and (2) he suffered prejudice because of the deficient performance. Strickland v. Washington, 466 U.S. 668, 687 (1984). These two elements are commonly referred to as the performance and prejudice prongs, respectively. See Rojas-Sanchez v. United States, No. 6:10-cv-991-ORL-19KRS, 2010 WL 4983667, at *3 (M.D. Fla. Dec. 2, 2010) (citation omitted). If a petitioner fails to show either prong, the court need not address the other. See Strickland, 466 U.S. at 687. Pertinent here, the Strickland test also applies “to challenges to guilty pleas based on ineffective assistance of counsel.” Hill v. Lockhart, 474 U.S. 52, 58 (1985); cf. Downs-Morgan v. United States, 765 F.2d 1534, 1539 (11th Cir. 1985) (stating a petitioner must “prove serious derelictions on the part of counsel sufficient to show that his plea was not, after all, a knowing and intelligent act” to be entitled to collateral relief (internal quotes omitted)).

         For Strickland's performance prong, the petitioner must show “that counsel's representation fell below an objective standard of reasonableness.” 466 U.S. at 688. This means the petitioner “must establish that no competent counsel would have taken the action that his counsel did take.” Chandler v. United States, 218 F.3d 1305, 1315 (11th Cir. 2000) (footnoted omitted); Scott v. United States, 325 Fed.Appx. 822, 824 (11th Cir. 2009) (stating the petitioner must show “he received advice from counsel that was not within the range of competence demanded of attorneys in criminal cases”).

         Because there is a “strong presumption in favor of competence, ” the petitioner bears a heavy burden of persuasion. Chandler, 218 F.3d at 1315 (footnote omitted). A court's review of counsel's performance is “highly deferential, ” and courts “must avoid ...


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