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Pooler v. United States

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

December 3, 2019

BRANDON POOLER, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          BRIAN J. DAVIS UNITED STATES DISTRICT JUDGE

         This case is before the Court on Petitioner Brandon Pooler's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (Civ. Doc. 1, § 2255 Motion) and Supporting Memorandum (Civ. Doc. 2, Memorandum).[1] Pooler claims that counsel gave ineffective assistance in advising him to plead guilty. The United States moved to dismiss the § 2255 Motion as untimely. (Civ. Doc. 5, Motion to Dismiss). The Court directed Pooler to respond to the Motion to Dismiss, but he did not do so. (See Civ. Doc. 6, Order Directing Response to Motion to Dismiss). The § 2255 Motion is ripe for a decision.

         Under 28 U.S.C. § 2255 and Rule 8(a) of the Rules Governing Section 2255 Proceedings, the Court has determined that a hearing is not necessary to resolve the merits of this action. 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 the facts that he alleges are true, he still would not be entitled to any relief). For the reasons set forth below, Pooler's § 2255 Motion is due to be dismissed under the statute of limitations.

         I. Background

         On February 12, 2015, a federal grand jury charged Pooler with one count of importing Methylenedioxypyrovalerone (MDPV or “Molly”) from China, in violation of 21 U.S.C. §§ 952(a) and 960(b)(3) (Count One), as well as one count of possession of MDPV with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). (Crim. Doc. 10, Indictment). A few months later, on June 29, 2015, Pooler pled guilty to both charges without a plea agreement. (See Crim. Doc. 45, Plea Transcript). With respect to Count One, Pooler admitted that he imported MDPV, a Schedule I controlled substance, from China and that he did so knowingly. Plea Tr. at 19. With respect to Count Two, Pooler admitted that he knowingly possessed MDPV and that he intended to distribute it. Id. at 19-20. The Magistrate Judge who presided over the plea colloquy recommended that “his pleas were intelligently, knowingly, and voluntarily made, and that the facts that he admitted establish the elements of the charged offenses.” (Crim. Doc. 25, Report and Recommendation Concerning Guilty Pleas). The Court accepted Pooler's guilty pleas and adjudicated him accordingly. (Crim. Doc. 26, Acceptance of Guilty Plea).

         According to the Presentence Investigation Report (PSR), Pooler's advisory sentencing range under the United States Sentencing Guidelines was between 120 and 150 months in prison, based on a total offense level of 27 and a Criminal History Category of V. PSR at ¶ 78. At the sentencing hearing, neither Pooler, his counsel, nor the government had any objections to the PSR. (Crim. Doc. 46, Sentencing Transcript at 4-5). The Court adopted the PSR's guidelines calculation, id. at 21, and sentenced Pooler to concurrent terms of 120 months in prison as to each count, representing the low end of the guidelines range, id. at 23. Pooler did not file a notice of appeal.

         The Court entered judgment on October 28, 2015. (See Crim. Doc. 32, Judgment). Because Pooler did not appeal the judgment, his conviction and sentence became final on November 12, 2015, when time expired to file a notice of appeal. Adams v. United States, 173 F.3d 1339, 1342 n.2 (11th Cir. 1999) (when a defendant does not appeal the judgment, the conviction and sentence become final once time expires to file a notice of appeal).

         II. The § 2255 Motion

         Pooler filed the § 2255 Motion on or about November 15, 2017, more than two years after his conviction and sentence became final. § 2255 Motion at 12. Pooler claims that counsel gave ineffective assistance during plea discussions in two ways. First, Pooler argues that counsel misadvised him about the Guidelines calculation. According to Pooler, “Counsel advised Petitioner to forego proceeding to trial and enter a plea of guilty with the understanding that counsel would challenge the marijuana equivalency ratio for methylone/ ethylone under the Sentencing Guidelines.” § 2255 Motion at 4. The Probation Office applied a 500:1 marijuana equivalency ratio in determining how to set the base offense level, which is the same equivalency ratio for methylenedioxymethamphetamine (MDMA) and similar Schedule I hallucinogens. See PSR at ¶ 19; see also U.S.S.G. § 2D1.1, Application Note 8(D) (2014). But Pooler claims that counsel assured him he could persuade the Court to apply a lesser marijuana equivalency ratio, such as 250:1 or 125:1. Memorandum at 13-14. At sentencing, however, counsel did not object or attempt to challenge the 500:1 ratio. Pooler claims he would not have pled guilty and would have proceeded to trial but for counsel's misadvice.

         Second, Pooler claims that counsel misadvised him about the mens rea element of the charged offenses. Eleven days before Pooler pled guilty, the United States Supreme Court decided McFadden v. United States, 135 S.Ct. 2298 (2015), which clarified the mens rea element when a defendant is charged under the Controlled Substance Analogue Enforcement Act of 1986 (Analogue Act). The Supreme Court held

that § 841(a)(1) requires the Government to establish that the defendant knew he was dealing with “a controlled substance.” When the substance is an analogue, that knowledge requirement is met if the defendant knew that the substance was controlled under the CSA or the Analogue Act, even if he did not know its identity. The knowledge requirement is also met if the defendant knew the specific features of the substance that make it a “‘controlled substance analogue.'”

McFadden, 135 S.Ct. at 2302 (quoting 21 U.S.C. § 802(32)(A)). Pooler claims that counsel failed to advise him about the mens rea requirements set forth in McFadden before he pled guilty. Pooler asserts that, but for counsel's misadvice with respect to the mens rea element, he would not have pled guilty and would have proceeded to trial.

         Pooler recognizes that he filed his § 2255 Motion “outside of the one (1) year AEDPA limitations period.” Memorandum at 1; see also 28 U.S.C. § 2255(f). However, Pooler suggests that the § 2255 Motion is timely under § 2255(f)(3) because he filed it within one year of the United States Supreme Court's decision in Lee v. United States, 137 S.Ct. 1958 (2017). Lee is discussed further below.

         In response, the United States moved to dismiss the § 2255 Motion as time-barred. (Civ. Doc. 5). The United States points out that Pooler filed the § 2255 Motion more than one year after his conviction and sentence became final, making the motion untimely under § 2255(f)(1). The United States further argues that neither Lee nor McFadden extended the limitations period under ...


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