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Grice v. United States

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

August 21, 2019

LEONARD D. GRICE, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          Timothy J. Corrigan United States District Judge.

         This case is before the Court on Petitioner's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (Civ. Doc. 1)[1] and Supporting Memorandum (Civ. Doc. 2), as well as his Motion to Appoint Counsel (Civ. Doc. 9) and Motion to Expedite (Civ. Doc. 12). In brief, Petitioner claims he was incorrectly sentenced as a career offender under the United States Sentencing Guidelines and that counsel failed to file a requested appeal. The United States has responded. (Civ. Doc. 5, Response). On March 4, 2019, the Court directed Petitioner's former public defenders and the prosecutor to expand the record with affidavits and relevant records concerning Petitioner's claim that trial counsel did not file a requested appeal. (Civ. Doc. 13, Order to Expand the Record). Each attorney has responded to the Order (Civ. Docs. 15, 16, 17), and Petitioner has responded to their affidavits (Civ. Docs. 18, 21). Thus, the matter is ripe for a decision.

         Under Rule 8(a) of the Rules Governing Section 2255 Proceedings, the Court has determined that an evidentiary hearing is not necessary to decide the motion. See Rosin v. United States, 786 F.3d 873, 877 (11th Cir. 2015) (an evidentiary hearing on a § 2255 motion is not required when the petitioner asserts allegations that are affirmatively contradicted by the record or patently frivolous, or if in assuming that the facts he alleges are true, he still would not be entitled to any relief). For the reasons set forth below, Petitioner's § 2255 Motion is due to be denied.

         I. Background

         On March 11, 2015, a federal grand jury charged Petitioner with one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). (Crim. Doc. 1, Indictment). Three months later, Petitioner pled guilty to the charge pursuant to a written Plea Agreement. (Crim. Doc. 18, Plea Agreement); (see also Crim. Doc. 40, Plea Transcript). In doing so, Petitioner admitted that he knowingly possessed a firearm after having been convicted of six felonies. (Crim. Doc. 18 at 19-20; Crim. Doc. 40 at 20-23). Petitioner also agreed to waive the right to appeal his sentence. (Crim. Doc. 18 at 14; Crim. Doc. 40 at 17-18). When questioned under oath about the appeal waiver, Petitioner acknowledged that he understood the waiver and accepted it “freely and voluntarily.” (Crim. Doc. 40 at 18). The Magistrate Judge who presided over the change-of-plea hearing recommended that the Court accept the guilty plea as “knowledgeable and voluntary” (Crim. Doc. 19), and the Court did so (Crim. Doc. 21).

         According to the Presentence Investigation Report (PSR), Petitioner's base offense level was 24 under U.S.S.G. § 2K2.1(a)(2) because he committed the offense after having been convicted of two controlled substance offenses: (1) a 2005 conviction in federal court for possession of crack cocaine with intent to distribute, and (2) a 2000 conviction in a Florida court for the sale of cocaine. PSR at ¶ 16; see also id. at ¶¶ 39, 51. Petitioner received a three-level reduction under §§ 3E1.1(a) and (b) for acceptance of responsibility, resulting in a total offense level of 21. Id. at ¶¶ 23-25. Petitioner's Criminal History Category was VI based on having 15 criminal history points. Id. at ¶¶ 52-54. As a result, Petitioner's advisory sentencing range under the Guidelines was between 77 months and 96 months in prison. Id. at ¶ 114.

         At the sentencing hearing, the Court adopted the PSR's Guidelines calculation without objection from either party. (Crim. Doc. 41, Sentencing Transcript at 6). Both the United States and Petitioner's counsel asked for a sentence at the low end of the Guidelines range, or 77 months. (Id. at 9, 14). All sides agreed that Petitioner had a serious criminal record; indeed, the Court observed that Petitioner had 25 convictions. (Id. at 18). However, Petitioner had attempted to assist law enforcement authorities by coming forward with information about other criminal activities. (See id. at 6-10, 11-12). Thus, in the end, the Court adopted the parties' recommendation and sentenced Petitioner to a term of 77 months in prison, followed by a three-year term of supervised release. (Id. at 20-21). Neither party objected to the sentence. (Id. at 22).

         The Court entered judgment on December 18, 2015. (Crim. Doc. 30, Judgment). Petitioner did not file a notice of appeal thereafter. Petitioner timely filed the § 2255 Motion roughly nine months later.

         II. Arguments

         Petitioner raises four grounds in the § 2255 Motion, but they can be reduced to two issues. First, in Grounds One through Three, Petitioner argues that the Court erred by enhancing his Sentencing Guidelines range under the career offender provision. (Civ. Doc. 1 at 4-6; see also Civ. Doc. 2). Petitioner contends he is “actually innocent” of the career offender enhancement because he does not have two prior convictions that qualify as a “controlled substance offense.” Petitioner also argues that the Court erred by “look[ing] beyond the authorized documents … to increase the Petitioner's Sentencing Guidelines, ” and that increasing his Guidelines range violated his rights under the Sixth Amendment. (Civ. Doc. 1 at 5-6).

         Contrary to these allegations, Petitioner was not in fact sentenced as a career offender. Rather, his base offense level was set at 24 under U.S.S.G. § 2K2.1(a)(2) because he had two prior convictions for a controlled substance offense. But § 2K2.1 defines the term “controlled substance offense” by reference to the career offender provision, § 4B1.2(b). U.S.S.G. § 2K2.1, Application Note 1. Thus, while Petitioner was not sentenced under the career offender guideline, the Court construes Petitioner as challenging the determination of his base offense level under § 2K2.1(a)(2).

         Second, in Ground Four, Petitioner claims that counsel gave ineffective assistance by failing to file a notice of appeal “after being directed to do so by the Petitioner.” (Civ. Doc. 1 at 8). Petitioner argues that an attorney “is per se ineffective when he fails to file a direct appeal after being directed to do so by his client.” (Id.).

         In its Response, the United States argues that Petitioner's claims are barred by a collateral review waiver in the Plea Agreement. (Civ. Doc. 5 at 3-7).[2] The United States also contends that Petitioner's claims lack merit. (Id. at 7-14). Specifically, as to Petitioner's claim that counsel was ineffective for not filing a notice of appeal, the United States argues that the record contradicts the claim because Petitioner waived the right to appeal his sentence, Petitioner received a sentence at the low end of the Guidelines range, and Petitioner waited nearly nine months to file the § 2255 Motion, despite the Court advising him that he would waive the right to appeal if he did not file a notice of appeal within 14 days of sentencing. (Id. at 11-14).

         III. Discussion

         Under Title 28, United States Code, Section 2255, a person in federal custody may move to vacate, set aside, or correct his sentence. Section 2255 permits such collateral challenges on four specific grounds: (1) the imposed sentence was in violation of the Constitution or laws of the United States; (2) the court did not have jurisdiction to impose the sentence; (3) the imposed sentence exceeded the maximum authorized by law; or (4) the imposed sentence is otherwise subject to collateral attack. 28 U.S.C §2255(a) (2008). Only jurisdictional claims, constitutional claims, and claims of error that are so fundamental as to cause a complete miscarriage of justice will warrant relief through collateral attack. United States v. Addonizio, 442 U.S. 178, 184-86 (1979). A petitioner's challenge to his sentence based on a Sixth Amendment claim of ineffective assistance of counsel is normally considered in a collateral attack. United States v. Teague, 953 F.2d 1525, 1534 n. 11 (11th Cir. 1992).

         To succeed on a claim of ineffective assistance of counsel, a petitioner must show both (1) that counsel's performance was deficient, and (2) that as a result of counsel's deficient performance, the petitioner suffered prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984). In determining whether counsel performed deficiently, the Court adheres to the standard of reasonably effective assistance. Weeks v. Jones, 26 F.3d 1030, 1036 (11th Cir. 1994). The petitioner must show, in light of all the circumstances, that counsel's performance fell outside the “wide range of professionally competent assistance.” Id. To show that counsel's deficient performance prejudiced the defendant, the petitioner must show that there is a reasonable probability that, but for counsel's error, the result of the proceeding would have been different. Id. at 1036-37 (citing Strickland, 466 U.S. at 694). A “reasonable probability” is a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694. In determining whether a petitioner has met the two prongs of deficient performance and prejudice, the Court considers the totality of the evidence. Id. at 695. However, because both prongs are necessary, “there is no reason for a court… to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one.” Id. at 697; see also Wellington v. Moore, 314 F.3d 1256, 1261 n. 1 (11th Cir. 2002) (“We need not discuss the performance deficiency component of [petitioner's] ineffective assistance claim because failure to satisfy the prejudice component is dispositive.”).

         A. Grounds One through Three: Whether the Court erroneously increased Petitioner's Guidelines range

         Petitioner claims in Grounds One through Three that the Court erred in sentencing him as a career offender under the Guidelines. Although Petitioner was not sentenced under the career offender provision, the Court construes the claim as challenging the enhancement of his base offense level under U.S.S.G. § 2K2.1(a)(2). Petitioner argues that he does not have two prior convictions that qualify as a “controlled substance offense” and that the Court erred by “look[ing] beyond the authorized documents of a prior state conviction.” (Civ. Doc. 1 at 5). Petitioner also claims that increasing his Guidelines range violated his rights under the Sixth Amendment. (Civ. Doc. 1 at 6).

         Grounds One through Three do not warrant relief because Guidelines errors are not cognizable on collateral 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) (en banc). When a prisoner claims that his “sentence was imposed in violation of the Constitution or laws of the United States ... or is otherwise subject to collateral attack, ” 28 U.S.C. § 2255(a), a court lacks authority to grant relief “unless the claimed error constitute[s] ‘a fundamental defect which inherently results in a complete miscarriage of justice, '” Spencer, 773 F.3d at 1138 (quoting Addonizio, 442 U.S. at 185). A miscarriage of justice occurs where a defendant is actually innocent, or where a defendant's sentence is “unlawful, ” such as when the defendant and his counsel are denied the right to be present at the sentencing hearing, or where the sentence exceeds the statutory maximum. See id. at 1138-39. Additionally, a sentencing error qualifies as a “fundamental defect” where “a prior conviction used to enhance [the defendant's] sentence has been vacated.” Id. at 1139. However, lesser errors, such as a misapplication of the sentencing guidelines, do not authorize relief under § 2255. Id. at 1140 (“A misapplication of advisory sentencing guidelines ... does not violate an ‘ancient' right, nor does it raise constitutional concerns.”). “When a federal prisoner, sentenced below the statutory maximum, complains of a sentencing error and does not prove either actual innocence of his crime or the vacatur of a prior conviction, the prisoner cannot satisfy the demanding standard that a sentencing error resulted in a complete miscarriage of justice.” Id. at 1139.

         Petitioner's argument that the Court incorrectly enhanced his Guidelines range is a non-constitutional issue that does not create a basis for relief under § 2255. The claim does not implicate a miscarriage of justice or the legality of his conviction and sentence. Even if the Court assigned Petitioner a lower base offense level under § 2K2.1, his 77-month prison sentence - which was well below the 10-year maximum authorized under 18 U.S.C. §§ 922(g) and 924(a)(2) - was still lawful. Nor does Petitioner assert that either of his controlled substance convictions have been vacated. As such, Grounds One through Three are not cognizable under 28 U.S.C. § 2255.[3]

         B. Ground Four: Whether Counsel Failed to File a ...


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