United States District Court, M.D. Florida, Tampa Division
D. WHITTEMORE UNITED STATES DISTRICT JUDGE
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.
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).
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.
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). The motion to amend was granted, and the
original § 2255 motion was dismissed as moot (cv Dkt.
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.).
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).
of Review for Ineffective Assistance of Counsel
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.
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
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.
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
I. Grounds One and Two
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.
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).").
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 ...