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McFarlane v. United States

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

May 23, 2018

COYWAE MCFARLANE, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          JAMES D. WHITTEMORE UNITED STATES DISTRICT JUDGE

         BEFORE THE COURT are Petitioner's Amended Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Judgment and Sentence by a Person in Federal Custody (cv Dkt. 14), memorandum in support (cv Dkt. 2), the Government's opposition (cv Dkt. 6) and supplemental opposition (cv Dkt. 23), and Petitioner's replies (cv Dkts. 11, 23) and affidavit (cv Dkt. 21). Upon consideration, the Amended Motion is GRANTED in part and DENIED in part.

         Procedural Background

         Petitioner was charged by Complaint with being an alien unlawfully in the United States in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(5)(A) (cr Dkt. 1). The Office of the Federal Public Defender represented Petitioner at his initial appearance (cr Dkt. 4). He subsequently retained attorney Lisa McLean (cr Dkt. 7).

         A three count Indictment charged Petitioner with being both a convicted felon and an illegal alien in possession of a firearm and ammunition, and being an aggravated felon alien found in the United States after deportation (cr Dkt. 9). Pursuant to a plea agreement, he pleaded guilty to all three counts (cr Dkts. 19, 22, 23), and was sentenced to 71 months on each count, concurrent (cr Dkt. 33). He did not appeal.

         On June 1, 2015, he timely filed his original § 2255 motion (cv Dkt. 1) and memorandum in support (cv Dkt. 2). After the Government responded (cv Dkt. 6), he filed his reply, along with a motion for leave to amend his § 2255 motion (cv Dkts. 11, 12).[1] The motion to amend was granted, and the original § 2255 motion was dismissed as moot (cv Dkt. 13).

         In his Amended Motion, he contends that his convictions violate double jeopardy in that Counts One and Two are based on possessing the same firearm and ammunition (cv Dkt. 14). And he contends that his attorney was ineffective in failing to (1) file a motion to dismiss either Count One or Two or to raise the issue on appeal; (2) file a motion to suppress; (3) request a downward variance based on his reasons for possessing a firearm; and (4) file a notice of appeal after being instructed to do so (Id.).

         Petitioner was directed to file a sworn statement in support of his claim that his attorney was ineffective in failing to file an appeal, and the Government was directed to file a supplemental response addressing the double jeopardy claims (cv Dkt. 15). Petitioner filed his affidavit (cv Dkt. 21), and the Government filed its supplemental response (cv Dkt. 22), to which Petitioner replied (cv Dkt. 23).

         Standard of Review for Ineffective Assistance of Counsel Claims

         Claims of ineffective assistance of counsel require satisfaction of the two-prong test set forth in Strickland v. Washington, 466 U.S. 668 (1984). To succeed under the Strickland test, a movant has the burden of proving: (1) deficient performance by counsel; and (2) prejudice resulting therefrom. Id. at 687.

         The first prong of the Strickland test requires a determination of whether counsel's performance fell below an "objective standard of reasonableness, " viewing counsel's challenged conduct at the time of the conduct. 466 U.S. at 688, 690. Counsel is strongly presumed to have rendered adequate assistance and made all significant decisions with reasonable and competent judgment. Id. "Judicial scrutiny of counsel's performance must be highly deferential, " and "counsel cannot be adjudged incompetent for performing in a particular way in a case, as long as the approach taken "might be considered sound trial strategy." Chandlery. United States, 218 F.3d 1305, 1313-14 (11th Cir.2000) (en banc) (quoting Strickland, 466 U.S. at 689 and Darden v. Wainwright, 477 U.S. 168 (1986)). For counsel's conduct to be unreasonable, a petitioner must show that "no competent counsel would have taken the action that his counsel did take." Chandler, 218 F.3d at 1315.

         As for the second prong, a reasonable probability is a "probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. A petitioner must show a "substantial, not just conceivable, likelihood of a different result." Cullen v. Pinholster, 536 U.S. 170, 189 (2011) (citation omitted). The petitioner must "affirmatively prove prejudice" to meet the second prong of an ineffective assistance of counsel claim. Strickland, 466 U.S. at 693.

         If a petitioner does not satisfy both prongs of the Strickland test, "he will not succeed on an ineffective assistance claim." Zamora v. Bugger, 834 F.2d 956, 958 (11th Cir. 1987). See also Weeks v. Jones, 26 F.3d 1030, 1037 (11th Cir. 1994). Therefore, a claim of ineffective assistance of counsel may be resolved based solely on lack of prejudice without considering the reasonableness of the attorney's performance. Waters v. Thomas, 46 F.3d 1506, 1510 (11th Cir. 1995) (citing Strickland 466 U.S. at 697).

         Discussion

          I. Grounds One and Two

         In Ground One, Petitioner contends that his convictions for being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1) (Count One) and an illegal alien in possession of the same firearm and ammunition in violation of § 922(g)(5) (Count Two) violate the double jeopardy clause. In Ground Two, he claims that his attorney was ineffective in failing to file a motion to dismiss as to either Count One or Two on that basis and/or appeal his convictions. He relies on United States v. Munoz-Romo, 989 F.2d 757, 759 (5th Cir. 1993). In Munoz-Romo, the Fifth Circuit found that convictions under 18 U.S.C. § 922(g)(1) and (g)(5) for possessing the same firearm on a single occasion violate double jeopardy, reasoning that "Congress, by rooting all the offenses in a single legislative enactment and including all the offenses in subsections of the same statute, signalled that it did not intend multiple punishments for the possession of a single weapon." Id.

         Munoz-Romo relied on United States v. Winchester, 916 F.2d 601 (11th Cir. 1990), in which this Circuit held that "Congress did not intend to provide for the punishment of a defendant under two or more separate subdivisions of 18 U.S.C § 922(g)." Id. at 607. The court explained that to conclude otherwise would mean "a convicted felon who is also a fugitive from justice, a drag addict, a 'mental defective' and an illegal alien, could be sentenced to five consecutive terms of imprisonment for the same incident, namely, possession of a firearm." Id. at 607. See also United States v. Richardson, 439 F.3d 421, 423 (8th Cir. 2006) (holding that "Congress intended the 'allowable unit of prosecution' to be an incident of possession regardless of whether a defendant satisfied more than one § 922(g) classification... " and remanding case to district court "to vacate the sentence, merge the counts of conviction [for being a felon in possession of a firearm in violation of § 922(g)(1) and being a drug user in possession of a firearm in violation of § 922(g)(3)] into one count, and resentence the defendant based on a single conviction under 18 U.S.C. § 922(g).").

         The Government maintains that Petitioner's convictions, even if multiplicitous, should stand because he received concurrent sentences and therefore suffered no prejudice. (Dkt. 22 at 2-3). Further, the Government contends that the test in Blockburger v. United States,284 U.S. 299 (1932) should be applied to determine whether ...


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