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