Aaron v. United States

          ORDER

          MARCIA MORALES HOWARD UNITED STATES DISTRICT JUDGE

         This case is before the Court on Petitioner Troy Lamorris Aaron's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (Civ. Doc. 1, Motion to Vacate) and Memorandum of Law and Brief in Support of § 2255 Motion (Civ. Doc. 2, Memorandum).^[1] Aaron claims that trial counsel gave ineffective assistance because a conflict of interest caused him not to file various pretrial motions, and that appellate counsel gave ineffective assistance by failing to raise meritorious arguments on appeal. The United States has responded (Civ. Doc. 9, Response), and Aaron has replied (Civ. Doc. 14, 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 a hearing is not necessary to resolve the merits of this action. See Rosin v. United States, 786 F.3d 873, 877 (11th Cir. 2015) (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); Patel v. United States, 252 Fed.Appx. 970, 975 (11th Cir. 2007).^[3] For the reasons set forth below, Aaron's Motion to Vacate is due to be denied.

         I. Background

         In February 2012, a confidential source working with the Baker County Sheriff's Office made a series of video and audio recorded controlled purchases of cocaine from Aaron and another individual named Paul Williams. Presentence Investigation Report (PSR) at ¶¶ 12-18. As a result of those purchases, state law enforcement authorities arrested Aaron on related charges on June 5, 2012. Id. at ¶ 19. A few months later, on October 4, 2012, a federal grand jury sitting in the Middle District of Florida indicted Aaron on one count of conspiracy to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 846 (Count One), and three counts of distribution of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) (Counts Two through Four). (Crim. Doc. 1, Indictment). This Court issued a warrant for Aaron's arrest (Crim. Doc. 4, Federal Arrest Warrant), which was returned executed on October 11, 2012 (Crim. Doc. 6, Execution of Arrest Warrant).

         The Court initially appointed Susan Good Yazgi of the Federal Public Defender's Office to represent Aaron. (Crim. Doc. 13). Ms. Yazgi's representation lasted less than four months, however. On February 8, 2013, Ms. Yazgi moved to withdraw from the case because “she [was] unwilling to file the motion to suppress as requested by [Aaron].” (Crim. Doc. 28, Motion to Withdraw at 1, ¶ 2). The Court granted the Motion to Withdraw and appointed A. Russell Smith, an experienced member of the Court's Criminal Justice Act (“CJA”) panel to represent Aaron. (Crim. Doc. 31, Order Granting Motion to Withdraw).^[4]

         Two and a half months later, Aaron filed a pro se motion to terminate Mr. Smith's representation and to appoint yet another lawyer. (Crim. Doc. 38, Notice of Filing Defendant's Pro Se Motion; Crim. Doc. 38-1, Pro Se Motion to Relieve Counsel). Aaron complained that Mr. Smith would not file various pretrial motions on his behalf; that Mr. Smith was not investigating potential witnesses; and that Mr. Smith was pressuring him to plead guilty. Pro Se Motion to Relieve Counsel at 2-3. Aaron alleged that counsel was providing ineffective assistance and that he was entitled to the appointment of a new lawyer. Id. at 3.

         The Honorable Joel B. Toomey, United States Magistrate Judge, held a prompt hearing on the pro se motion, at which Aaron, Mr. Smith, and the Assistant United States Attorney were present. (Crim. Doc. 41, Minute Entry for April 30, 2013, Hearing). Mr. Smith opened by saying “there [wasn't] any acrimony between [him and Aaron], ” but that Aaron had lost faith in his representation because Aaron believed Mr. Smith was trying to “coerce him into pleading guilty.” (Crim. Doc. 107, Transcript of April 30, 2013 Hearing at 2) (“Apr. 30, 2013 Hrg. Tr.”). Mr. Smith disagreed with Aaron's assessment, but said he believed “ultimately every client has the right to have confidence in counsel, and he obviously does not have confidence in me.” Id. Judge Toomey then held part of the hearing ex parte to explore the issues between Aaron and Mr. Smith. (See generally Crim. Doc. 115, Transcript of April 30, 2013, Ex Parte Proceedings) (“April 30, 2013, Ex Parte Hrg. Tr.”).^[5]During the ex parte portion of the hearing, Mr. Smith first explained that “from the beginning” he had requested that Aaron furnish the names of any alibi or other witnesses he might have, but Aaron was “reluctant or unwilling” to do so. Id. at 2-3. With respect to one particular witness, Paul Williams, Mr. Smith explained that he had had difficulty locating him, but once he did do so, he and Aaron mutually agreed that Williams would not be “useful.” Id. at 3. Addressing Aaron's claim that he would not file pretrial motions, Mr. Smith explained that Aaron was frustrated because out of 11 or 12 individuals targeted in a sweeping operation by the Bradford County Sheriff's Office, Aaron was the only one whose case was transferred to federal court. Id. at 4. As a result, Aaron's potential sentence was 35 times as great as the sentences given the other defendants, who were each given county jail time after being allowed to plead guilty in state court. Id. at 4-5. Aaron believed he was being selectively prosecuted in federal court, but Mr. Smith explained that “the case law on selective prosecution just does not support a motion to suppress or dismiss alleging selective prosecution. There were otherwise reasonable bases to prosecute Mr. Aaron in federal court, ” including that he was already serving “two different supervised release terms.” Id. at 5. Mr. Smith could discern “no unlawful or improper motive” for Aaron's case being transferred to federal court. Id. Moreover, Mr.

         Smith explained that Aaron's arrest was “pursuant to a warrant based upon video recorded transactions, audio recorded transactions, ” and that “[t]he basis for the issuance of the warrant was sufficient as a matter of law.” Id. Mr. Smith added that Aaron's former public defender had “had the same types of conversations with Mr. Aaron” about the pretrial motions. Id. While recognizing that Aaron's situation was unfortunate, Mr. Smith explained that “[t]he selective prosecution argument is without basis in law” and there was “no legal basis to file a motion in the case.” Id. at 5-6. Turning to Aaron's claim that he felt pressured to plead guilty, Mr. Smith recalled that he had been trying to explain to Aaron that he was facing a lengthy sentence, and that by going to trial he could face a sentence up to ten years longer than if he pled guilty because the United States indicated it would file a notice of prior convictions under 21 U.S.C. § 851. Id. at 6. As Mr. Smith summarized:

He feels this is coercive. I feel I have an obligation to make sure he understands the consequences of going to trial and losing.

… He sees me as trying to force a plea. I see myself as trying to give him the information he needs to make an educated decision about what to do with his cases.

Id. at 6-7.

         The Magistrate Judge asked Mr. Smith about the quality of communication between him and Aaron. Mr. Smith responded:

I speak frankly with him and he speaks frankly with me. I don't think we pull any punches.

I think at times early on he found - he took offense at that. I hope he now realizes that he's better off with somebody who's going to tell him the unvarnished truth than somebody who's just going to say, “Don't worry about it, ” pat him on the hand, and tell him it's going to be all right and then wave good-bye as he goes to prison for a very long time.

So I hope we're past that part, but - but yes, we went nose to nose a few times early on because he's a strong-willed person and I am as well, and I wasn't just going to back down and tell him what he wanted to hear. I told him what I thought the truth was, and it wasn't good news.

So, you know, we started off that way.

Id. at 7-8. The Magistrate Judge then asked whether Mr. Smith could continue as Aaron's attorney if the pro se motion were denied. Id. at 8. Mr. Smith responded that “there is a continuing problem with his trust of me, ” which he said “may adversely impact trial preparation, ” but he did not say he could no longer represent Aaron effectively. Id. (emphasis added).

         Given his turn to speak, Aaron voiced his frustration that Mr. Smith was not pursuing the pretrial motions he thought were worth pursuing, particularly given the length of the sentence he was facing. See id. at 10. Aaron acknowledged that he had had similar issues with his former public defender not filing the motions he wanted. Id. The Magistrate Judge explained:

Well, I can tell you you've had two of the most experienced, probably best criminal defense lawyers here in Jacksonville, so if they can't make you happy, it doesn't sound like anybody is going to be able to make you happy, so I guess I'm having trouble seeing where this is going to go.

It sounds to me like we're going to be back here in a month or two months with another lawyer and then a month or two months after that with a different lawyer, and we can't just keep doing that and delaying these proceedings indefinitely on the thought that maybe eventually you might find somebody who you're satisfied with.

Id. at 11. Aaron reiterated his belief that Mr. Smith was not pursuing a meritorious motion to suppress. The Magistrate Judge responded:

THE COURT: Well, you understand a lawyer can only file - ethically file things that they think have a sufficient legal basis. They can't just file something because you tell them to file it, and any lawyer is going to tell you that same thing.

You understand that?

DEFENDANT: I mean, yes, sir, I understand that. I mean…

THE COURT: So, I mean, you've had two, like I say, competent lawyers look at the issues that you're talking about, and both of them tell you that not only do they not have merit, they don't even have enough merit to where they feel comfortable that they can ethically file something.

I mean, that's - they are both telling you that they don't see that they can ethically file these motions you want them to file because they're - they're groundless. They're - yes, you're facing a lot of time, but that doesn't mean that there has ...