Johnson v. United States

          ORDER

          JAMES D. WHITTEMORE, United States District Judge

         BEFORE THE COURT is Petitioner's Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (cv Dkt. 1), which the Government opposes (cv Dkt. 16). Upon consideration, the motion is DENIED.

         Procedural Background

         Petitioner was convicted after a jury trial of conspiracy to possess with intent distribute 500 grams or more of methamphetamine, and possession with intent to distribute 500 grams or more of methamphetamine (cr Dkt. 186). She was sentenced to concurrent terms of 168 months, followed by 5 years of supervised release (cr Dkt. 220). Her convictions were affirmed (cr Dkt. 281).

Petitioner's Section 2255 motion (cv Dkt. 1) raises four grounds:

Ground One:

Ineffective assistance of counsel failure to investigate facts around the case (trial attorney);

Ground Two:

Ineffective assistance of counsel failure to listen to my version; attorney did not have faith in me, lack of communication;

Ground Three:

Ineffective assistance of counsel, attorney did not allow me to testify at trial; and

Ground Four:

Ineffective assistance of counsel - appellate attorney abandonment.

         Standard of Review for Ineffective Assistance of Counsel Claims

The law regarding ineffective assistance of counsel claims is well settled and well documented. InStricklandv. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme Court set forth a two-part test for analyzing ineffective assistance of counsel claims. According to Strickland, first, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Strickland, 466 U.S. at 687, 104 S.Ct. 2052.

Sims v. Singletary, 155 F.3d 1297, 1305 (11th Cir. 1998).

         Petitioner must demonstrate both deficient performance and resulting prejudice. Strickland, 466 U.S. at 697 ("There is no reason for a court deciding an ineffective assistance claim ... to address both components of the inquiry if the defendant makes an insufficient showing on one."); Sims v. Singletary, 155 F.3d at 1305 ("When applying Strickland, we are free to dispose of ineffectiveness claims on either of its two grounds.").

         "[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, 466 U.S. at 690. The reasonableness of counsel's challenged conduct must be judged on the facts of the particular case, viewed as of the time of the conduct. Id. Stricklandrequires that "in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." Id. And where, as here, the performance of an experienced trial counsel is examined, the presumption that his conduct was reasonable is even stronger. Chandler v. United States, 218 F.3d 1305, 1316 (11th Cir. 2000). As has been explained:

The test has nothing to do with what the best lawyers would have done. Nor is the test even what most good lawyers would have done. We ask only whether some reasonable lawyer at the trial could have acted, in the circumstances, as defense counsel acted at trial.... We are not interested in grading lawyers' performances; we are interested in whether the adversarial process at trial, in fact, worked adequately.

White v. Singletary, 972 F.2d 1218, 1220-21 (11th Cir.1992).

         And because "[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment, " Petitioner must demonstrate that counsel's error prejudiced the defense. Strickland v. Washington, 466 U.S. at 691-92. To meet this burden, Petitioner must show a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id., at ...