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Crews v United States

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

May 21, 2018

SAMUEL FRANKLIN CREWS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          MARICA MORALES HOWARD UNITED STATES DISTRICT JUDGE.

         This case is before the Court on Petitioner Samuel Franklin Crews's Verified Amended Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (Civ. Doc. 15, Amended Motion to Vacate)[1] and Memorandum of Law in Support (Civ. Doc. 12, Memorandum). The United States has responded (Civ. Doc. 26, Response), and Crews has filed a reply (Civ. Doc. 35, Reply). The case is ripe for a decision.

         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 the claims Crews is pursuing in 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 Fed.Appx. 970, 975 (11th Cir. 2007).[3] For the reasons set forth below, Crews's Amended Motion to Vacate is due to be denied.

         I. Background

         On December 18, 2013, a grand jury sitting in the Middle District of Florida indicted Crews on three counts of receiving child pornography, in violation of 18 U.S.C. §§ 2252(a)(2) and 2252(b)(1). (Crim. Doc. 1, Indictment). Following his arrest, Crews moved to suppress incriminating statements he had made to law enforcement, claiming they were taken in violation of the Fifth Amendment and Miranda v. Arizona, 384 U.S. 436 (1966). (Crim. Doc. 26, Motion to Suppress). A United States Magistrate Judge conducted an evidentiary hearing on the Motion to Suppress on July 17, 2014. (Crim. Doc. 54, Suppression Hearing Transcript, Volume I; Crim. Doc. 56, Suppression Hearing Transcript, Volume II). After the hearing, the Magistrate Judge issued a report and recommendation, in which he recommended that the Court deny the Motion to Suppress. (Crim. Doc. 58, Report and Recommendation). Crews did not file objections to the Report and Recommendation, and after review, the Court adopted it and denied the Motion to Suppress. (Crim. Doc. 68, Order Denying Motion to Suppress).

         Thereafter, Crews pled guilty to Count Two of the Indictment under a written plea agreement. (Crim. Doc. 81, Plea Agreement; Crim. Doc. 99, Change of Plea Transcript [“Plea Tr.”]). Crews admitted that he knowingly searched for and downloaded images of child pornography on his computer via the internet. Plea Agreement at 2, 14-20; Plea Tr. at 18-24, 24-26. In exchange for his guilty plea, the United States agreed to dismiss Counts One and Three of the Indictment, id. at 3, ¶ 4, and to recommend as much as a three level reduction for acceptance of responsibility under § 3E1.1 of the United States Sentencing Guidelines, id. at 3-4, ¶ 6. When entering his guilty plea before the Magistrate Judge, Crews stated under oath that he pled guilty because he was in fact guilty, and that he did so knowingly and voluntarily. Plea Tr. at 17, 26-27; see also Plea Agreement at 11-12, ¶¶ 9-10. Crews agreed that by pleading guilty, he waived the right to challenge the manner in which the government obtained any statement or evidence against him. Plea Tr. at 7. Crews further stated that he was satisfied with his attorney and the way his attorney had represented him. Plea Tr. at 27. Satisfied with the plea colloquy, the Court accepted Crews's plea of guilty and adjudicated him as such. (Crim. Doc. 84, Acceptance of Plea).

         At the sentencing hearing, the Court determined that Crews's total offense level was 34 and his criminal history category was II, yielding an advisory sentencing range of 168 to 210 months in prison under the Sentencing Guidelines. (Crim. Doc. 97, Sentencing Transcript [“Sent. Tr.”] at 5). After hearing argument from the United States and Crews, the Court varied significantly below the Guidelines range and imposed a sentence of 92 months in prison. Id. at 40; (Crim. Doc. 93, Judgment). Crews did not file a notice of appeal thereafter.

         II. The Amended Motion to Vacate [4]

         Crews initially raised three grounds in his Amended Motion to Vacate. In Ground One, Crews alleges that his counsel, Stephen Mosca, gave ineffective assistance by failing to file a requested notice of appeal. Amended Motion to Vacate at 6. The Court determined that an evidentiary hearing was warranted to resolve this claim and referred the claim to the assigned Magistrate Judge to conduct such a hearing and prepare a report and recommendation as to the resolution of the claim in Ground One. (Civ. Doc. 36, Order Referring Ground One for Evidentiary Hearing). However, after consulting his Court-appointed lawyer, Crews moved to withdraw this claim. (Civ. Doc. 48). The Court granted the Motion to Withdraw Ground One, and as such the Court will not address it further. (Civ. Doc. 49, Order Dismissing Ground One). In Ground Two, Crews asserts three subclaims: he alleges that counsel was ineffective because he (a) “affirmatively misrepresent[ed] to Petitioner that the Petitioner's forensic computer expert would not provide favorable testimony concerning the Petitioner's primary defense that the child pornography files found in the unallocated space of the hard drive of Petitioner's computer did not have metadata to establish the government's purported proof concerning the dates when the child pornography was viewed and deleted”; (b) failed to file objections to the Report and Recommendation on the Motion to Suppress; and (c) advised Crews to plead guilty despite Crew's claims of actual innocence, “even if it would require Petitioner to falsely admit guilt at the change of plea hearing.” Amended Motion to Vacate at 8-9. Additionally, in Ground Three Crews asserts that counsel was ineffective because he “failed to comply with Petitioner's request to file a motion to withdraw his guilty plea due to actual innocence.” Id. at 11.

         The United States opposes the Amended Motion to Vacate. In particular, the United States counters that the transcripts of the plea colloquy and the sentencing hearing refute Crews's professions of innocence. The United States also responds that Crews has provided nothing to corroborate the claim that his computer forensic expert, Richard Connor, was prepared to testify favorably for him or that counsel misled Crews regarding Connor's opinion. As such, the United States asserts that the Court should deny the Amended Motion to Vacate.

         III. 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).

         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 Two

         1. Subclaim One: Counsel's Alleged Ineffectiveness in Misrepresenting to Crews Whether His Computer Forensic Expert Would Provide Favorable Testimony

         Contrary to his sworn statements at the plea colloquy, Crews now claims that he is actually innocent, and that the child pornography on his computer must have belonged to the computer's previous owner, not him. Memorandum at 6, 7. Crews claims that a computer forensics expert, Richard Connor, would have testified in support of this theory. According to Crews, Connor would have testified that the FBI had no way to prove that the pornographic files in unallocated space on Crews's hard drive wound up there as a result of deletions he made while the computer was in his custody. Id. at 6. Crews claims his attorney told him one month before trial, however, that Connor had recanted his opinion, and that he could not refute the FBI's forensic evidence. Id. Crews states that two weeks before he filed the Amended Motion to Vacate,

he learned … from Mr. Connor that he did not recant his proposed testimony to Mr. Crews's counsel and that he was still of the opinion that the incriminating data concerning titles and dates of deletion of the child pornography files could not have been extracted from the unallocated space of the hard drive as stated by the government agents.

Id. at 6-7. As a result, Crews claims that his counsel misrepresented Connor's opinion to him, causing him to plead guilty when he was actually innocent. Id. at 7. Notably though, Crews has never presented any affidavit, statement, report, or other evidence to corroborate this allegation, despite his claim of receiving communication directly from Connor just two weeks before filing the Amended Motion to Vacate.

         This claim fails because it has no evidentiary support and is refuted by the record. Crews's claim that Connor would have testified in support of his theory of innocence, and that Connor contacted him to deny recanting his opinion, is unsubstantiated. Crews provides no statement or affidavit from Connor to support the claim. Crews does not even attach the communication he allegedly received from Connor just two weeks before he filed the Amended Motion to Vacate. Thus, the allegation lacks credibility as it consists only of Crews's self-serving statements, void of any independent verification. See Andrews v. United States, 634 Fed.Appx. 259, 262 (11th Cir. 2015) (affirming denial of defendant's motion for new trial where the allegations in his affidavit were not substantiated by any objectively credible source) (citing United States v. Calderon, 127 F.3d 1314, 1354 (11th Cir. 1997)); see also United States v. Ashimi, 932 F.2d 643, 650 (7th Cir. 1991) (“[E]vidence about the testimony of a putative witness must generally be presented in the form of actual testimony by the witness or on affidavit. A defendant cannot simply state that the testimony would have been favorable; self-serving speculation will not sustain an ineffective assistance claim.”).

         Second, Crews's claim that he was actually innocent, and therefore would not have pled guilty but for counsel misrepresenting Connor's opinion, is contradicted by the record. While under oath at the plea colloquy, Crews stated that he pled guilty because he was in fact guilty. Plea Tr. at 17; see also Plea Agreement at 12, ¶ 10. Crews admitted that he used specific search terms to seek out and download child pornography, that he viewed such files, and that he later deleted them. Plea Tr. at 18-24; Plea Agreement at 16-20. When the government finished reading the factual basis, Crews stated he had no disagreement with it. Plea Tr. at 24. Crews further admitted that his actions satisfied each of the elements of the offense of receiving child pornography. Plea Tr. at 24-26; Plea Agreement at 14-15. When asked whether he was pleading guilty knowingly and voluntarily, Crews affirmed that he was, and that he had not been coerced or induced into doing so. Plea Tr. at 26-27. Thus, the record affirmatively refutes Crews's claim that he was actually innocent, and that he pled guilty only because his attorney told him that Connor had recanted his testimony.[5]

         A prisoner often “has everything to gain and nothing to lose from filing a collateral attack upon his guilty plea.” Blackledge v. Allison, 431 U.S. 63, 71-72 (1977). Therefore, to preserve the certainty and efficiency of plea bargaining, “the representations of the defendant, his lawyer, and the prosecutor at [a plea] hearing, as well as any findings made by the judge accepting the plea, constitute a formidable barrier in any subsequent collateral proceedings.” Id. at 73-74. Indeed, “there is a strong presumption that the statements made during the plea colloquy are true.” United States v. Gonzalez-Mercado, 808 F.2d 796, 800 n.8 (11th Cir. 1987). “The subsequent presentation of conclusory allegations unsupported by specifics is subject to summary dismissal, as are contentions that in the face of the record are wholly incredible.” Blackledge, 431 U.S. at 74. A prisoner who has made statements at a plea colloquy “‘bears a heavy burden to show his statements were false.'” Winthrop-Redin v. United States, 767 F.3d 1210, 1217 (11th Cir. 2014) (quoting United States v. Rogers, 848 F.2d 166, 168 (11th Cir. 1988)). Crews's incredible and unverified allegations fall far short of demonstrating that his sworn statements at the plea colloquy were untrue. Regardless of what counsel might have told Crews about Connor's opinion, Crews's statements under oath show that he knowingly and freely pled guilty because he had in fact committed the crime alleged in Count Two of the Indictment. Thus, subclaim one of Ground Two does not merit relief.

         2. Subclaim Two: Whether counsel was ineffective for failing to file objections to the Report and Recommendation on the Motion to Suppress

         In Subclaim Two of Ground Two, Crews alleges that counsel gave ineffective assistance by failing to timely file objections to the Report and Recommendation on his Motion to Suppress. As noted before, Crews moved to suppress inculpatory statements he made to the police, alleging they were taken in violation of Miranda and the Fifth Amendment. Following a suppression hearing, a Magistrate Judge issued a Report and Recommendation, in which he recommended that the Motion to Suppress be denied. The record reflects that counsel did not file objections to the Report and Recommendation. After review, the Court adopted the Magistrate Judge's recommendation and denied the Motion to Suppress. In support of the claim for relief, Crews submitted a letter from counsel in which counsel acknowledges that he missed the deadline for filing objections to the Report and Recommendation. (Civ. Doc. 4-2, Letter from Counsel).

         A prisoner can prove that counsel gave ineffective assistance if his attorney unreasonably failed to move to suppress evidence (or in this case, failed to file objections to a Report and Recommendation on the motion). See Kimmelman v. Morrison, 477 U.S. 365, 374-75 (1986). To do so, the prisoner must show three things: (1) that a constitutional violation actually occurred, such that the motion to suppress or objections would have had merit, (2) that it was objectively unreasonable for counsel not to file the motion to suppress (or objections), and (3) that there is a reasonable probability the outcome of the case would have been different absent the excludable evidence. See id. at 375, 382.[6] If no constitutional violation occurred, then a defendant was not prejudiced by counsel's failure to file the motion or objections. See Castillo v. United States, 816 F.3d 1300, 1303 (11th Cir. 2016) (citing Kimmelman, 477 U.S. at 375).

         Here, the Court assumes that counsel performed deficiently by missing the deadline to file objections to the Report and Recommendation. Nevertheless, Crews is not entitled to relief for two reasons. First, Crews proceeded to plead guilty after counsel missed the deadline to file objections. A knowing and voluntary guilty plea “waives all nonjurisdictional challenges to the constitutionality of the conviction, ” including a claim of pre-plea ineffective assistance of counsel. Wilson v. United States, 962 F.2d 996, 997 (11th Cir. 1992). Here, the record of the plea colloquy shows that Crews knowingly and voluntarily pled guilty, after having been thoroughly advised of his rights, the charges, and of the nature and consequences of pleading guilty. See Plea Tr. at 5-27. Crews specifically acknowledged that by pleading guilty he waived the right to challenge the manner in which the government obtained any evidence or statement against him. Id. at 7. In other words, Crews pled guilty aware that doing so meant he waived any further argument that the government illegally obtained his statements. The instant claim regarding counsel's failure to preserve the suppression issue “is not about his decision to plead guilty.” Wilson, 962 F.2d at 997; see also McMann v. Richardson, 397 U.S. 759, 770 (1970) (attorney's misjudgment about the admissibility of the defendant's confession did not invalidate a guilty plea that was otherwise based on competent advice). Indeed, nothing about counsel's failure to file objections to the Report and Recommendation negates Crews's sworn statements at the plea colloquy reflecting that his plea was a free and informed choice, and that he did so because he was indeed guilty. See Plea Tr. at 17, 26-27.[7]Therefore, Crews's knowing and voluntary guilty plea waives his ineffective assistance claim regarding counsel's failure to follow through on the Motion to Suppress.

         Next, Crews is not entitled to relief because he has failed to establish that counsel's failure to file objections prejudiced him. The Magistrate Judge recommended that the Court deny the Motion to Suppress because Crews was not in custody for purposes of Miranda when he made incriminating statements to police officers. Report and Recommendation at 7-15. While police initially entered Crews's residence forcefully with their weapons drawn, and the officers briefly handcuffed him, the evidence established that this was done to protect the officers' safety only while they executed the search warrant. Id. at 10. After the officers finished executing the warrant, but before they asked Crews any questions, the officers un-handcuffed Crews and informed him he was not under arrest. Id. at 10-11. The Magistrate Judge recommended that Crews was not in custody at the time he made the incriminating statements because he was not handcuffed, he had agreed to speak to the police, he had been advised he was not under arrest, he was interviewed for less than an hour, and he was interviewed in the front seat of an unmarked, unlocked government vehicle just outside his residence. Id. at 10-14. Nowhere in the Amended Motion to Vacate, the Memorandum, or the Reply does Crews address how the Magistrate Judge's findings of fact and conclusions of law were erroneous. Nor was the Magistrate Judge's analysis in the Report and Recommendation erroneous, as reflected by the fact that the Court adopted the recommendation following an independent review of the record. See generally Order Denying Motion to Suppress.

         Kimmelman requires that a defendant establish the existence of a constitutional violation as a threshold matter. 477 U.S. at 375. A lawyer's failure to litigate a motion to suppress is not prejudicial if no constitutional violation occurred in the first place. See Castillo, 816 F.3d at 1303. Crews provides no basis to support a conclusion that the Report and Recommendation was incorrect or that his objections would have prevailed even had counsel filed them.[8] Indeed, he does not even state what his objections would have been. In other words, Crews has made no showing that a Miranda violation occurred and that his statements would have been excluded had counsel filed any objections. Accordingly, Crews is not entitled to relief on this subclaim.

         3. Subclaim Three: Whether counsel advised Crews to falsely admit guilt at the plea colloquy, despite ...


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