United States District Court, M.D. Florida, Jacksonville Division
LEONARD D. GRICE, Petitioner,
UNITED STATES OF AMERICA, Respondent.
Timothy J. Corrigan United States District Judge.
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) 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.
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.
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).
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.
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).
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.
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).
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
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
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). 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).
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).
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.”).
Grounds One through Three: Whether the Court erroneously
increased Petitioner's Guidelines range
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
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.
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.
Ground Four: Whether Counsel Failed to File a ...