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United States v. Goodman

United States District Court, N.D. Florida, Pensacola Division

August 9, 2019

UNITED STATES OF AMERICA
v.
TERRANCE D. GOODMAN

          REPORT AND RECOMMENDATION

          ELIZABETH M. TIMOTHY CHIEF UNITED STATES MAGISTRATE JUDGE.

         This matter is before the court upon a “Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody” and an Amendment/Supplement thereto filed by Defendant Terrance D. Goodman (“Goodman”) (ECF Nos. 704, 708). The Government filed a response (ECF No. 711), and Goodman filed a reply (ECF No. 716). Also pending is Goodman's motion for partial summary judgment (ECF No. 717). The case was referred to the undersigned for the issuance of all preliminary orders and any recommendations to the district court regarding dispositive matters. See N.D. Fla. Loc. R. 72.2; see also 28 U.S.C. § 636(b) and Fed.R.Civ.P. 72(b). After a review of the record and the arguments presented, the undersigned recommends that the § 2255 motion be denied without a hearing, see Rules 8(a) and (b), Rules Governing Section 2255 Cases, and that the motion for summary judgment be denied as moot.

         I. PROCEDURAL BACKGROUND

         On December 16, 2014, Goodman and twelve others were charged in a superseding indictment[1] (ECF No. 131) with offenses related to their alleged participation in a large-scale drug trafficking and money laundering conspiracy. Goodman was charged in Count One with conspiracy to distribute and possess with intent to distribute five (5) kilograms or more of a mixture and substance containing a detectable amount of cocaine, and in Count Two with conspiracy to use a communication facility (a telephone and cellular telephone) to facilitate the commission of a felony. The Government states it based its case against Goodman on cooperating witnesses and law enforcement seizures (ECF No. 711 at 2, citing ECF Nos. 1, 2, 334, 496). This includes specific information about Goodman's alleged illicit activity provided by co-defendant Aston Ingram during post-arrest statements. An identical narrative description of Goodman's involvement is contained in both the affidavit in support of the criminal complaint and in the Pre-Sentence Investigation Report (“PSR”) (see ECF No. 2, Affidavit/Complaint ¶ 5; ECF No. 496, PSR ¶ 22).

         On March 18, 2015, Goodman, represented by appointed attorney Stephen Sutherland, entered a guilty plea “as charged” before the undersigned magistrate judge (ECF Nos. 333-337) (this Report includes a detailed description of the plea colloquy, because most of Goodman's allegations relate, directly or indirectly, to whether he entered his plea voluntarily, intelligently, and knowingly).

         At the plea colloquy, as is routine, the court placed Goodman under oath and warned him that any false responses or false statements during the proceedings could lead to a separate prosecution for perjury (ECF No. 561 at 4). The court advised Goodman that he did not have to enter a plea of guilty and explained the rights he would be giving up by doing so (id. at 8-10). The court referenced the written Plea Agreement (ECF No. 335), which Goodman confirmed he had read in its entirety, reviewed with his attorney, and understood fully (ECF No. 561 at 10-11).[2] The undersigned twice reiterated the penalties Goodman faced, as set forth in the agreement, to wit, a mandatory minimum term of ten years' imprisonment on Count One and up to a maximum of life, and a maximum term of four years' imprisonment on Count Two (id. at 11-12, 19). Twice, Goodman affirmed he understood these penalties (id. at 12, 19). Goodman also affirmed that Mr. Sutherland had discussed the Sentencing Guidelines with him, and he acknowledged he understood that counsel's predictions about how the guidelines would ultimately apply to his case were not binding (id.) Goodman's answers did not appear rote. When asked whether he knew parole had been abolished, and that he would serve approximately “day-for-day time” on a sentence of incarceration, Goodman responded that he did not know that. He nonetheless assured the court that this did not change his desire to enter a plea, and he did not need to talk to counsel about the new information (id. at 13-14). The undersigned specifically asked Goodman, “if this sentence is greater than what you are hoping for or expecting, do you understand that you do not have a right to withdraw your plea, ” and he responded “yes, ma'am” (id. at 16).

         The court next inquired about the factual basis for the plea. Goodman admitted having signed the three-page “Factual Basis for Guilty Plea” (ECF No. 334) and, again, having initialed each page of the document (ECF No. 561 at 14). The Factual Basis identified Goodman as a transporter/distributer of cocaine for co-defendant Rodney Butler, and stated that Goodman had been engaged in this illicit conduct “for at least the past few years” (ECF No. 334 at 1). It noted that Goodman, alone and in conjunction with co-defendant Terrance Stone, mailed or transported cocaine/currency for co-defendant Butler, and that Goodman conspired to distribute and possess with intent to distribute in excess of five kilograms of cocaine for the benefit of the conspiracy (id. at 1-2). Goodman did not inquire about the contents of the Factual Basis or mention any “amendments.” He agreed that he understood the amount of cocaine involved in the conspiracy was five kilograms or more and by entering a guilty plea he was giving up the right to have a jury determine the amount of cocaine for which he should be held accountable (ECF No. 561 at 14-15). Goodman also acknowledged having reviewed the relevant Eleventh Circuit Pattern Jury Instructions with his attorney, namely, Criminal Offense Instructions 100, 99, and 98 (id. at 15-16; see also ECF No. 334 at 3). He agreed that he understood what the Government would be required to prove if the case went to trial (ECF No. 561 at 15-16). Mr. Sutherland, as an officer of the court, confirmed that the men had gone over the instructions (id. at 16; see also ECF No. 334 at 3).

         The court specifically inquired, again as is customary, about Goodman's relationship with his attorney. Still under oath, Goodman specifically denied having any complaints at all about the way counsel had represented him (ECF No. 561 at 20). Goodman also affirmatively agreed he had had enough time to discuss his decision to plead guilty with counsel and was satisfied with the representation counsel had provided. Goodman affirmed that the written documents he had previously discussed with the court contained his entire agreement with the Government, and he denied having been pressured, threatened, or intimidated into entering the plea (id. at 18-20). Before Goodman formally entered his plea of guilty, the court offered him a final opportunity to consult with his attorney or ask questions of the court, and he declined. (id. at 20-21). In sum, there was nothing irregular or unusual about the thorough plea proceedings that would have alerted the court or counsel for either party that any of the issues Goodman now complains of existed. The undersigned therefore recommended that the plea of guilty be accepted, affording the usual period for objections (ECF No. 337). No. objections were filed, and the district court adopted the recommendation that the plea of guilty be accepted (ECF No. 344).

         A Draft PSR was filed on April 23, 2015. Goodman was characterized as a courier and distributor for the conspiracy and was held accountable for more than five (5) kilograms of cocaine, the quantity he had admitted during the plea colloquy (ECF No. 410, Draft PSR, ¶¶ 97, 111). His total offense level after a three-level downward adjustment for acceptance of responsibility, was 27 (id. at ¶¶ 125-134). Goodman's criminal history category was II (id. at ¶ 156). The applicable guidelines range of 78 to 97 months became 120 months due to the statutory mandatory minimum of ten years on Count One, of which Goodman had been advised during the plea colloquy (id. at ¶¶ 184, 185). The Probation Officer noted two, separate, pending state charges (“escape conspiracy (2013)” and “armed burglary (2014)”), and that if Goodman had been convicted of either of those before the conclusion of the instant federal offense, he would have qualified as a career offender with an advisory guideline range of 262 to 327 months (id. at ¶ 207).

         Mr. Sutherland filed a response to the Draft PSR on May 7, 2015, indicating there were no objections to the “score sheet calculations” (ECF No. 429). He also filed a motion to continue the May 28, 2015, sentencing due to counsel's unavailability (ECF No. 430). The court granted the motion, as well as a second motion to continue for the same reason (ECF Nos. 438, 463, 465).

         The Final PSR was entered on the court's docket on June 30, 2015 (ECF No. 496). The sentencing calculations therein were unchanged from those in the Draft PSR. The offense conduct is described in paragraphs 17 through 93, and Goodman is mentioned in only two of those paragraphs. In Paragraph 31, Goodman is included in a list of six people whom lead-conspirator Rodney Butler used to transport cocaine from Texas to Florida (ECF No. 496, PSR ¶ 31). Paragraph 22 of the PSR tracks the affidavit in support of the criminal complaint, rather than the factual basis for the guilty plea, and (as noted above) contains information provided to law enforcement by co-defendant Aston Ingram after Ingram's arrest. More specifically, Ingram stated that during 2014 Butler sold large amounts of cocaine to Goodman, and that Goodman intended to distribute it in the Panama City, Florida, area. Ingram stated that Goodman mailed some cocaine back to Panama City rather than personally transport it, and some of this cocaine was intercepted by law enforcement. On June 24 and 25, 2014, Goodman was supposed to receive two parcels totaling one-half kilogram of cocaine as part of the conspiracy, but law enforcement foiled the plan. According to Ingram, Goodman stopped communicating with Butler after his arrest regarding the intercepted cocaine, and Butler tried to hire someone to kill Goodman because Goodman owed Butler approximately $60, 000 (ECF No. 496, PSR ¶ 22).

         Before the third scheduled sentencing date, and almost two months after the Draft PSR was filed, Goodman filed a pro se motion requesting a hearing relating to counsel's alleged ineffectiveness (ECF No. 488).[3] The court held an ex parte hearing on July 14, 2015, at which Goodman orally moved to withdraw his guilty plea based on counsel's allegedly ineffective representation (ECF No. 619 at 3). The court asked Mr. Sutherland to respond to Goodman's allegations, and counsel outlined events leading up to Goodman's guilty plea, including discussions the two men had about sentencing possibilities (id. at 12-18). After hearing from counsel, the district court indicated it did not understand the basis for Goodman's ineffective assistance of counsel claim, and it saw neither any prejudice to him from his plea nor any basis for withdrawing the plea (id. at 18). The court indicated its intent to review the transcript of the plea proceeding, and the following day it denied Goodman's motion in a written order[4] (ECF Nos. 508; ECF No. 619 at 25).

         In its written order, the district court concluded, based on the testimony at the hearing and its review of the plea proceedings, that there was no basis to conclude that Goodman's guilty plea was unknowing and involuntary because he had been thoroughly advised as to the possible penalties he faced, and when he entered his plea he understood that the weight of cocaine attributable to him could include amounts that did not necessarily pass directly through his hands (ECF No. 508 at 1-2). It also found Goodman was not misled as to his career offender status, and further, even if counsel had told Goodman he could avoid career offender status by pleading guilty, he suffered no prejudice because he was not subject to career offender enhancements (id. at 2). Based on these findings, the district court easily concluded there were no grounds for allowing Goodman to withdraw his plea.

         On July 28, 2015, the district court sentenced Goodman above the applicable advisory guidelines range to a term of 180 months on Count One and a concurrent term of 48 months on Count Two, followed by concurrent terms of five years and one year of supervised release, respectively (ECF Nos. 524, 525, 576). Goodman's extensive, and largely unscored, criminal history provided the basis for the court's above-guidelines sentence (ECF No. 576 at 5-16). Goodman addressed his criminal history in his remarks to the court, claiming that he had accepted plea bargains in many of his prior cases because it was “convenient” (id. at 11), but he made no mention of any disagreement with the facts in the PSR[5] and raised no issues other than to ask for leniency. According to defense counsel, no 5K1.1 motion was filed because Goodman entered into his plea agreement later than the co-defendants and Goodman's debriefing did not provide anything substantial to the Government (id. at 4). Mr. Sutherland filed a Notice of Appeal and a Motion to Withdraw based on his client's dissatisfaction with his performance, and the court granted the motion (ECF Nos. 526-528).

         Robert A. Harper, III, Esq., was appointed to represent Goodman on appeal (ECF No. 537). After reviewing the record, Mr. Harper filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967) and moved to withdraw. The Eleventh Circuit's independent examination of the entire record revealed no arguable issues of merit, and it granted counsel's motion and affirmed Goodman's convictions and total sentence (ECF No. 683).

         Goodman timely filed the instant motion to vacate on March 9, 2018 (see ECF No. 704 at 22).[6] He raises a total of fifteen (15) grounds for relief in the motion and in the supplement thereto. The overlapping grounds for relief can be divided into four general categories: ineffective assistance of trial counsel, ineffective assistance of appellate counsel, trial court error, and the involuntariness of his plea. Goodman's claims center around his assertion that he was not factually guilty of the charged conspiracy because he only knew one, or at most two, of the conspirators. He claims that counsel's erroneous advice about the facts and law surrounding his case and counsel's failure to investigate rendered his guilty plea unintelligent and involuntary. He also asserts that he should have been permitted to withdraw his plea before sentencing, but a combination of ineffective assistance of counsel and trial court error prevented him from doing so.

         While Goodman's' 2255 motion was awaiting review in this court, he filed a mandamus petition in the Eleventh Circuit Court of Appeals, seeking an order compelling this court to rule on his motion. On July 2, 2019, the Eleventh Circuit issued an order noting it would hold the petition in abeyance for sixty days to allow this court to rule on Goodman's motion (see ECF No. 735). In light of Defendant Goodman's request for an expedited resolution of his motion, the normal time for filing objections to this Report and Recommendation will be shortened, as set forth below in the Notice to Parties.

         II. ANALYSIS

         A. General Standard of Review

         “Section 2255 does not provide a remedy for every alleged error in conviction and sentencing.” Spencer v. United States, 773 F.3d 1132, 1138 (11th Cir. 2014). Collateral review is not a substitute for direct appeal, and therefore the grounds for collateral attack on final judgments pursuant to section 2255 are extremely limited. A prisoner is entitled to relief under section 2255 if the court imposed a sentence that (1) violated the Constitution or laws of the United States, (2) exceeded its jurisdiction, (3) exceeded the maximum authorized by law, or (4) is otherwise subject to collateral attack. See 28 U.S.C. § 2255(a); McKay v. United States, 657 F.3d 1190, 1194 n.8 (11th Cir. 2011). “Relief under 28 U.S.C. § 2255 ‘is reserved for transgressions of constitutional rights and for that narrow compass of other injury that could not have been raised in direct appeal and would, if condoned, result in a complete miscarriage of justice.'” Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004) (citations omitted). The “fundamental miscarriage of justice” exception recognized in Murray v. Carrier, 477 U.S. 478, 496 (1986), provides that it must be shown that the alleged constitutional violation “has probably resulted in the conviction of one who is actually innocent . . . .”

         The law is well established that a district court need not reconsider issues raised in a section 2255 motion which have been resolved on direct appeal. Stoufflet v. United States, 757 F.3d 1236, 1239 (11th Cir. 2014); Rozier v. United States, 701 F.3d 681, 684 (11th Cir. 2012); United States v. Nyhuis, 211 F.3d 1340, 1343 (11th Cir. 2000); Mills v. United States, 36 F.3d 1052, 1056 (11th Cir. 1994). Once a matter has been decided adversely to a defendant on direct appeal, it cannot be re-litigated in a collateral attack under section 2255. Nyhuis, 211 F.3d at 1343 (quotation omitted). Broad discretion is afforded to a court's determination of whether a particular claim has been previously raised. Sanders v. United States, 373 U.S. 1, 16 (1963) (“identical grounds may often be proved by different factual allegations . . . or supported by different legal arguments . . . or couched in different language . . . or vary in immaterial respects”).

         Because a motion to vacate under section 2255 is not a substitute for direct appeal, issues which could have been raised on direct appeal are generally not actionable in a section 2255 motion and will be considered procedurally barred. Lynn, 365 F.3d at 1234-35; Bousley v. United States, 523 U.S. 614, 621 (1998); McKay v. United States, 657 F.3d 1190, 1195 (11th Cir. 2011). An issue is “‘available' on direct appeal when its merits can be reviewed without further factual development.” Lynn, 365 F.3d at 1232 n.14 (quoting Mills, 36 F.3d at 1055). Absent a showing that the ground of error was unavailable on direct appeal, a court may not consider the ground in a section 2255 motion unless the defendant establishes (1) cause for not raising the ground on direct appeal, and (2) actual prejudice resulting from the alleged error, that is, alternatively, that he is “actually innocent.” Lynn, 365 F.3d at 1234; Bousley, 523 U.S. at 622 (citations omitted). To show cause for procedural default, a defendant must show that “some objective factor external to the defense prevented [him] or his counsel from raising his claims on direct appeal and that this factor cannot be fairly attributable to [defendant's] own conduct.” Lynn, 365 F.3d at 1235. A meritorious claim of ineffective assistance of counsel can constitute cause. See Nyhuis, 211 F.3d at 1344.

         Goodman has requested an evidentiary hearing at various points in these proceedings. An evidentiary hearing is unnecessary when “the motion and files and records conclusively show that the prisoner is entitled to no relief.” See 28 U.S.C. § 2255(b); Rosin v. United States, 786 F.3d 873, 877 (11th Cir. 2015); Gordon v. United States, 518 F.3d 1291, 1301 (11th Cir. 2008). Not every claim of ineffective assistance of counsel warrants an evidentiary hearing. Gordon, 518 F.3d at 1301 (citing Vick v. United States, 730 F.2d 707, 708 (11th Cir. 1984)). To be entitled to a hearing, a defendant must allege facts that, if true, would prove he is entitled to relief. See Hernandez v. United States, 778 F.3d 1230, 1234 (11th Cir. 2015). A hearing is not required on frivolous claims, conclusory allegations unsupported by specifics, or contentions that are wholly unsupported by the record. See WinthropBRedin v. United States, 767 F.3d 1210, 1216 (11th Cir. 2014) (explaining that “a district court need not hold a hearing if the allegations [in a' 2255 motion] are . . . based upon unsupported generalizations”) (internal quotation marks omitted); Peoples v. Campbell, 377 F.3d 1208, 1237 (11th Cir. 2004). Even affidavits that amount to nothing more than conclusory allegations do not warrant a hearing. Lynn, 365 F.3d at 1239. Finally, disputes involving purely legal issues can be resolved by the court without a hearing.

         B. Ineffective assistance of counsel-Grounds 1, 2, 3, 7, 9, 11 and 13

         Seven of Goodman's claims are fairly construed as alleging ineffective assistance of counsel at the trial court level.

         Ineffective assistance of counsel claims generally are not cognizable on direct appeal and are properly raised by a' 2255 motion regardless of whether they could have been brought on direct appeal. Massaro v. United States, 538 U.S. 500, 503 (2003); see also United States v. Franklin, 694 F.3d 1, 8 (11th Cir. 2012); United States v. Campo, 840 F.3d 1249, 1257 n.5 (11th Cir. 2016). To prevail on a constitutional claim of ineffective assistance of counsel, a defendant must demonstrate both that counsel's performance was below an objective and reasonable professional norm and that he was prejudiced by this inadequacy. Strickland v. Washington, 466 U.S. 668, 686 (1984); Williams v. Taylor, 529 U.S. 362, 390 (2000); Darden v. United States, 708 F.3d 1225, 1228 (11th Cir. 2013). Strickland's two-part test also applies to guilty pleas. Lafler v. Cooper, 566 U.S. 156, 162-63 (2012) (citing Hill v. Lockhart, 474 U.S. 52, 58 (1985)). A defendant will be required to show that but for counsel's errors, he would not have pleaded guilty and would have instead insisted on proceeding to trial. Id. at 163 (quoting Hill, 474 U.S. at 59). “A defendant's ‘after the fact testimony concerning his desire to plead, without more, is insufficient to establish' prejudice.” Pericles v. United States, 567 Fed.Appx. 776, 782 (11th Cir. 2014) (quoting Diaz v. United States, 930 F.2d 832, 835 (11th Cir. 1991)); Rosin v. United States, 786 F.3d 873 (11th Cir. 2015). This means a defendant must provide more than his own conclusory statements in support of his position. A defendant must “convince the court that a decision to reject the plea bargain would have been rational under the circumstances.” Padilla v. Kentucky, 559 U.S. 356, 372 (2010). In applying Strickland, the court may dispose of an ineffective assistance claim if a defendant fails to carry his burden on either of the two prongs. Strickland, 466 U.S. at 697; Brown v. United States, 720 F.3d 1316, 1326 (11th Cir. 2013); Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000) (“[T]he court need not address the performance prong if the defendant cannot meet the prejudice prong, or vice versa.”).

         In determining whether counsel's conduct was deficient, this court must, with much deference, consider “whether counsel's assistance was reasonable considering all the circumstances.” Strickland, 466 U.S. at 688; see also Dingle v. Sec'y for Dep't of Corr., 480 F.3d 1092, 1099 (11th Cir. 2007). Reviewing courts are to examine counsel's performance in a highly deferential manner and “must indulge a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance.” Hammond v. Hall, 586 F.3d 1289, 1324 (11th Cir. 2009) (quoting Strickland, 466 U.S. at 689); see also Chandler v. United States, 218 F.3d 1305, 1315-16 (11th Cir. 2000) (discussing presumption of reasonableness of counsel's conduct); Lancaster v. Newsome, 880 F.2d 362, 375 (11th Cir. 1989) (emphasizing that petitioner was “not entitled to error-free representation”). Counsel's performance must be evaluated with a high degree of deference and without the distorting effects of hindsight. Strickland, 466 U.S. at 689. To show counsel's performance was unreasonable, a defendant must establish that “no competent counsel would have taken the action that his counsel did take.” Gordon v. United States, 518 F.3d 1291, 1301 (11th Cir. 2008) (citations omitted); Chandler, 218 F.3d at 1315. “[T]he fact that a particular defense ultimately proved to be unsuccessful [does not] demonstrate ineffectiveness.” Chandler, 218 F.3d at 1314. When reviewing the performance of an experienced trial counsel, the presumption that counsel's conduct was reasonable is even stronger, because “[e]xperience is due some respect.” Chandler, 218 F.3d at 1316 n.18.

         To establish prejudice, defendant must show that, but for counsel's deficient performance, the outcome of the proceeding would have been different. Strickland, 466 U.S. at 694. “The likelihood of a different result must be substantial, not just conceivable.” Harrington v. Richter, 562 U.S. 86, 112 (2011) (quoting Strickland). For the court to focus merely on “outcome determination, ” however, is insufficient; “[t]o set aside a conviction or sentence solely because the outcome would have been different but for counsel's error may grant the defendant a windfall to which the law does not entitle him.” Lockhart v. Fretwell, 506 U.S. 364, 369-70 (1993); Allen v. Sec'y, Fla. Dep't of Corr., 611 F.3d 740, 754 (11th Cir. 2010). A defendant therefore must establish “that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Lockhart, 506 U.S. at 369 (quoting Strickland, 466 U.S. at 687). Or in the case of alleged sentencing errors, a defendant must demonstrate that there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been less harsh due to a reduction in the defendant's offense level. Glover v. United States, 531 U.S. 198, 203-04 (2001). A significant increase in sentence is not required to establish prejudice, as “any amount of actual jail time has Sixth Amendment significance.” Id. at 203.

         To establish ineffective assistance, Goodman must provide factual support for his contentions regarding counsel's performance. Smith v. White, 815 F.2d 1401, 1406-07 (11th Cir. 1987). Bare, conclusory allegations of ineffective assistance are insufficient to satisfy the Strickland test. See Boyd v. Comm'r, Ala. Dep't of Corr., 697 F.3d 1320, 1333-34 (11th Cir. 2012); Garcia v. United States, 456 Fed.Appx. 804, 807 (11th Cir. 2012) (citing Yeck v. Goodwin, 985 F.2d 538, 542 (11th Cir. 1993)); Wilson v. United States, 962 F.2d 996, 998 (11th Cir. 1992); Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991). Furthermore, counsel is not constitutionally deficient for failing to preserve or argue a meritless claim. Denson v. United States, 804 F.3d 1339, 1342 (11th Cir. 2015) (citing Freeman v. Attorney General, Florida, 536 F.3d 1225, 1233 (11th Cir. 2008)). This is true regardless of whether the issue is a trial or sentencing issue. See, e.g., Sneed v. Florida Dep't of Corrections, 496 Fed.Appx. 20, 27 (11th Cir. 2012) (failure to preserve meritless Batson claim not ineffective assistance of counsel); Lattimore v. United States, 345 Fed.Appx. 506, 508 (11th Cir. 2009) (counsel not ineffective for failing to make a meritless objection to an obstruction enhancement); Brownlee v. Haley, 306 F.3d 1043, 1066 (11th Cir. 2002) (counsel was not ineffective for failing to raise issues clearly lacking in merit).

         Finally, the Eleventh Circuit has recognized that given the principles and presumptions set forth above, “the cases in which habeas petitioners can properly prevail . . . are few and far between.” Chandler, 218 F.3d at 1313. This is because the test is not what the best lawyers would have done or even what most good lawyers would have done, but rather whether some reasonable lawyer could have acted in the circumstances as defense counsel acted. Dingle, 480 F.3d at 1099; Williamson v. Moore, 221 F.3d 1177, 1180 (11th Cir. 2000). “Even if counsel's decision appears to have been unwise in retrospect, the decision will be held to have been ineffective assistance only if it was ‘so patently unreasonable that no competent attorney would have chosen it.'” Dingle, 480 F.3d at 1099 (quoting Adams v. Wainwright, 709 F.2d 1443, 1445 (11th Cir. 1983)). The Sixth Circuit has framed the question as not whether counsel was inadequate, but rather whether counsel's performance was so manifestly ineffective that “defeat was snatched from the hands of probable victory.” United States v. Morrow, 977 F.2d 222, 229 (6th Cir. 1992). Regardless of how the standard is framed, under the prevailing case law it is abundantly clear that a moving defendant has a high hurdle to overcome to establish a violation of his constitutional rights based on his attorney's performance. A defendant's belief that a certain course of action that counsel failed to take might have helped his case does not direct a finding that counsel was constitutionally ineffective under the standards set forth above.

         1. Ground One

         In Ground One, Goodman alleges counsel was constitutionally ineffective because he misadvised Goodman about Goodman's career offender status, thus “inducing” him to plead guilty. Goodman, who was the last of the co-conspirators to plead guilty (see ECF No. 576 at 4), claims that had counsel given him the correct advice he would not have pleaded guilty but would have gone to trial. In fact, in the affidavit appended to his § 2255 motion Goodman claims he has been trying to withdraw his guilty plea since the day he received his PSR (ECF No. 704 at 28).

         Goodman alleges that the only guideline provision Mr. Sutherland gave him was “a copy of the Career Offender provisions from § 4B.1 [sic] of the U.S.S.G. manual.” However, pursuant to U.S.S.G. § 4B1.2, comment. (n.2), it is U.S.S.G. § 4A1.2 that explains which prior convictions and sentences are counted under the guidelines and which are excluded, for example, because they are too remote-an issue on which counsel allegedly misadvised Goodman. Section 4A1.2(e)(1) specifically provides that, to be counted, a prior conviction or incarceration on any sentence exceeding one year and one month must have occurred within fifteen years of the defendant's commencement of the instant offense conduct. Thus, Goodman asserts, he could not have qualified as a career offender due to the age of his prior offenses, and counsel's purported advice to the contrary-that “they could go back 30 years if they wanted to”-“induced” him to enter a guilty plea to try to avoid the enhancement, or as he states, caused him to enter a plea “based on the fear of a nonexistent penalty” (ECF No. 704 at 27, 48).

         The Government argues Goodman has not shown either deficient performance or prejudice. At the plea proceeding, Goodman specifically acknowledged that no one could promise him how the guidelines would be calculated in his case, that the only prediction he could count on was that he would be sentenced between ten years and life imprisonment, that he understood the sentence was “totally up to the district court . . . within the parameters” of ten years to life, and that no one had pressured him, threatened him, or intimidated him in any way to get him to enter the plea (ECF No. 561 at 12, 19-20). Together these statements undermine Goodman's claims. More important, a sentence based on a career offender enhancement could never be greater than the penalty of life imprisonment, a penalty Goodman faced-and clearly knew he faced-at the time of his plea. Thus, the record refutes Goodman's claim that his plea was based on the fear of a “non-existent penalty.” Finally, the district court's order after the ex parte hearing would seem to ...


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