Opinion
Criminal 7:21-CR-32-001 (HL)
03-21-2024
HOMER HOLLOWAY, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
28 U.S.C. § 2255 Case No. 7:23-CV-91 (HL)
RECOMMENDATION
THOMAS Q. LANGSTAFF UNITED STATES MAGISTRATE JUDGE
Petitioner's Motion to Vacate, Set Aside, or Correct his sentence pursuant to 28 U.S.C. § 2255 was filed on August 16, 2023 (Doc. 144) and is before this Court for the issuance of a recommendation of disposition pursuant to Rule 8 of the Rules Governing Section 2255 Proceedings for the United States District Courts.
Procedural History
Petitioner was charged by means of a Superseding Information with one (1) count of conspiracy to possess with intent to distribute methamphetamine. (Doc. 86). Throughout the criminal proceedings in this case, Petitioner was represented by appointed counsel Richard Greenberg. (Doc. 34).
Petitioner pled guilty to the one (1) count Superseding Information on November 30, 2021, and was sentenced on July 21, 2022 to 210 months imprisonment followed by three (3) years of supervised release. (Docs. 89, 131, 137). Petitioner's sentence was below the 240-month Sentencing Guideline range. (Doc. 128, ¶ 149; Doc. 141, pp. 6, 8-10). Petitioner filed a waiver of appeal and did not appeal his conviction. (Doc. 139). Petitioner filed this Motion to Vacate on August 16, 2023. (Doc. 144).
Evidentiary Hearing
Petitioner bears the burden of establishing that an evidentiary hearing is needed to dispose of his § 2255 motion. Birt v. Montgomery, 725 F.2d 587, 591 (11th Cir. 1984). “A federal habeas corpus petitioner is entitled to an evidentiary hearing if he alleges facts which, if proven, would entitle him to relief.” Futch v. Dugger, 874 F.2d 1483,1485 (11th Cir. 1989). The Court is not required to hold an evidentiary hearing, however, where the record makes “manifest the lack of merit of a Section 2255 claim.” United States v. Lagrone, 727 F.2d 1037, 1038 (11th Cir. 1984). “[If] the record refutes the applicant's factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing.” Schirro v. Landrigan, 550 U.S. 465, 474 (2007). The record herein is sufficient to evidence that Petitioner's claim lacks merit, and therefore no evidentiary hearing is necessary as to his ground.
Petitioner's Claim
Petitioner raises one (1) ground for relief in his Motion to Vacate, as follows:
1. Ineffective assistance of counsel in that counsel failed to properly advise him regarding the allegedly defective Superseding Information before Petitioner pled guilty.(Doc. 144).
Facts
In Petitioner's plea agreement, the government and Petitioner set forth the following facts, stipulating and agreeing that they could be proved at trial beyond a reasonable doubt:
On March 2, 2021, Drug Enforcement Administration (DEA) Special Agent (SA) Michael Stanton was contacted by a known DEA Confidential Source (CS) regarding information about a suspected drug trafficker named “Mike”. Subsequent investigation revealed that “Mike” was Homer Holloway, a resident of Sparks, Georgia, the Defendant.
On March 12, 2021, SA Stanton received information that the Defendant's vehicle was returning to South Georgia from a drug resupply run in Atlanta. The [CS] also confirmed the vehicle was on a drug resupply run.
SA Stanton, along with Troopers from the Georgia State Patrol, . . . established surveillance on I-75 southbound in Cordele, Georgia [, performed a traffic stop on a vehicle driven by Elissa Moody, searched the vehicle, and found approximately 1752 grams of methamphetamine, crack cocaine, a handgun and three boxes of ammunition, U.S. currency, and the cellular phone of Defendant.]
Later that same day . . . SA Stanton [and other law enforcement officers] executed a [] Search Warrant at the Defendant's residence in Sparks, Georgia.
During the course of the search, Agents seized a small quantity of suspected crack cocaine, and two firearms. Defendant . . . told officers that . . . he had sent Moody . . ., in his vehicle, to Atlanta, Georgia, to obtain two (2) kilograms of methamphetamine.
[A search of Defendant's cellular phone revealed] text messages between the Defendant and Moody [regarding the drug run].(Doc. 88, pp.7- 8).
Legal Standards
Section 2255 provides that:
a prisoner in custody under sentence of a court established by Act of
Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
28 U.S.C. § 2255.If a prisoner's § 2255 claim is found to be valid, the court “shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.” Id.
In order to establish that his counsel's representation was constitutionally defective, the Petitioner must show (1) that his counsel's representation was deficient, and (2) that the Petitioner was prejudiced by his counsel's alleged deficient performance. Strickland v. Washington, 466 U.S. 668 (1984); Smith v. Wainwright, 777 F.2d 609, 615 (11th Cir. 1985).
"Our role in collaterally reviewing [] judicial proceedings is not to point out counsel's errors, but only to determine whether counsel's performance in a given proceeding was so beneath prevailing professional norms that the attorney was not performing as 'counsel' guaranteed by the sixth amendment." Bertolotti v. Dugger, 883 F.2d 1503, 1510 (11th Cir. 1989).
The Strickland court stated that "[a] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.... If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed." Strickland, 466 U.S. at 697.
[A]ctual ineffectiveness claims alleging a deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice.... It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding . . [rather][t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome....In making the determination whether the specified errors resulted in the required prejudice, a court should presume, absent challenge to the judgment on grounds of evidentiary insufficiency, that the judge or jury acted according to law.Strickland, 466 U.S. at 693-694, emphasis added.
In evaluating whether Petitioner has established a reasonable probability that the outcome would have been different absent counsel's alleged errors, a court “must consider the totality of the evidence before the judge or jury.” Brownlee v. Haley, 306 F.3d 1043, 1060 (11th Cir. 2002).
“As to counsel's performance, ‘the Federal Constitution imposes one general requirement: that counsel make objectively reasonable choices.'” Reed v. Sec'y. Fla. Dep't. of Corr., 593 F.3d 1217, 1240 (11th Cir. 2010) (quoting Bobby v. Van Hook, 130 S.Ct. 13, 17 (2009)). A court must “judge the reasonableness of counsel's conduct on the facts of the particular case, viewed as of the time of counsel's conduct.” Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000). In order to find that counsel's performance was objectively unreasonable, the performance must be such that no competent counsel would have taken the action at issue. Hall v. Thomas, 611 F.3d 1259, 1290 (11th Cir. 2010). “The burden of persuasion is on a petitioner to prove, by a preponderance of competent evidence, that counsel's performance was unreasonable.” Chandler v. U.S., 218 F.3d 1305, 1313 (11th Cir. 2000).
Analysis
In his Motion to Vacate, Petitioner asserts that his sentence should be vacated because the Superseding Information to which he pled guilty does not accurately set out a conspiracy charge. Petitioner maintains that counsel should not have allowed him to plead guilty to an Information containing such defects, and that the Court was without jurisdiction to accept the plea. (Doc. 144-1, p. 5).
The Superseding Information states:
COUNT ONE (CONSPIRACY TO POSSESS WITH INTENT TO DISTRIBUTE METHAMPHETAMINE)
That on or about March 12, 2021, in the Valdosta Division of the Middle
District of Georgia,
HOMER HOLLOWAY
aided and abetted by Corey Maddox, Elissa Moody, and Sergio Montelongosanchez, not charged herein, and by others, both know and unknown to the United States Attorney, did knowingly and intentionally possess with the intent to distribute a Schedule II controlled substance, to wit: methamphetamine, in violation of Title 21 United States Code, Section 846, in connection with Title 21, United States Code, Sections 841(a)(1) and (b)(1)(C).
(Doc. 86).As Petitioner points out, the body of the Superseding Information does not contain any mention of conspiracy or its elements. Cf. Doc. 1 (“the defendants . . . knowingly and intentionally conspired and agreed together and with each other . . . to commit the following offenses against the United States: to possess with intent to distribute fifty (50) grams or more of methamphetamine”).
Rule 7 of the Federal Rules of Criminal Procedure provides that the information “must be a plain, concise, and definite written statement of the essential facts constituting the offense charged and must be signed by an attorney for the government.” Fed. R. Crim. P. 7(c). “An [information] is sufficient if it: (1) presents the essential elements of the charged offense, (2) notifies the accused of the charges to be defended against, and (3) enables the accused to rely upon a judgment under the [information] as a bar against double jeopardy for any subsequent prosecution for the same offense.” United States v. Steele, 147 F.3d 1316, 1320 (11th Cir. 1998).
In the Plea Agreement, signed by Defendant under oath, he “admits that on or about March 12, 2021, he knowingly and intentionally conspired to possess with intent to distribute methamphetamine, as charged in Count One of the Information.” (Doc. 88, p. 8). At his Change of Plea hearing, Petitioner testified under oath that he understood he was pleading guilty to a conspiracy charge, and that he agreed with the plea agreement facts, including that he had knowingly and intentionally conspired to possess with intent to distribute methamphetamine. (Doc. 140, pp. 3, 14).
Although Petitioner claims potential defects in the Superseding Information, such defects are non-jurisdictional. An “omission of an element from an [information] does not deprive the district of jurisdiction . . . [as] the omission of an element from the [information] is non-jurisdictional”. United States v. Brown, 752 F.3d 1344, 1351 (11th Cir. 2014). Only defects that deprive a court of its power to adjudicate a case are jurisdictional and fatal to an information. Id. at 1352; United States v. Espinosa, 2022 WL 293991, *3 (11th Cir. 2022) (“If the indictment affirmatively alleges conduct that does not constitute a crime at all because that conduct falls outside of the sweep of the charging statute there is a jurisdictional defect.”).
“A defendant who enters a plea of guilty waives all non-jurisdictional challenges to the constitutionality of the conviction, and only an attack on the voluntary and knowing nature of the plea can be sustained.” Wilson v. United States, 962 F.2d 996, 997 (11th Cir. 1992). Non-jurisdictional claims waived by a guilty plea include claims of ineffective assistance of counsel concerning issues litigated prior to the entry of the plea. United States v. Fairchild, 803 F.2d 1121, 1124 (11th Cir. 1986); see also Tollett v. Henderson, 411 U.S. 258, 266-67 (1973) (voluntary and intelligent guilty plea represents a break in the chain of events that precludes review of alleged constitutional errors preceding the entry of the plea). Petitioner “may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not [competent]”. Id.
Thus, Petitioner's guilty plea was a break in the chain of events that precludes his ineffective assistance of counsel claims pertaining to pre-plea events. Skow v. United States, 2016 WL 3344577, *2 (N.D.Ga. 2016) (petitioner could not raise ineffective assistance claim based on alleged pre-plea deprivation of rights in habeas petition).
In regard to a guilty plea, the Constitution requires “that the defendant enter a guilty plea that is ‘voluntary' and that the defendant must make related waivers ‘knowing[ly], intelligent[ly], [and] with sufficient awareness of the relevant circumstances and likely consequences.'” U.S. v. Ruiz, 536 U.S. 622, 629 (2002) (citing Brady v. United States, 397 U.S. 742, 748 (1970)). A court accepting a guilty plea must ensure that a defendant “enters his guilty plea free from coercion, understands the nature of the charges, and understands the consequences of his plea.” U.S. v. Moriarty, 429 F.3d 1012, 1019 (11th Cir. 2005) (internal enumeration omitted).
A defendant who enters a plea of guilty waives several constitutional rights and, therefore, due process requires that the plea be knowingly and voluntarily made. For a guilty plea to be entered into knowingly and voluntarily, it must satisfy three “core concerns,” of Rule 11, which are that “(1) the guilty plea must be free from coercion; (2) the defendant must understand the nature of the charges; and (3) the defendant must know and understand the consequences of his guilty plea.”
U.S. v. Borden, 580 F. A'ppx 870 (11th Cir. 2014) quoting United States v. Siegel, 102 F.3d 477, 481 (11th Cir. 1996).
At his Change of Plea hearing, Petitioner stated under oath that he had signed the plea agreement, and that no one had threatened, frightened, or done anything to force him to plead guilty. (Doc. 140, pp. 10, 16). Petitioner agreed that he was fully satisfied with counsel and his services. Id. at p. 4.
The Supreme Court has determined that “the representations of the defendant [at a plea proceeding] as well as any findings made by the judge accepting the plea, constitute a formidable barrier in any subsequent collateral proceedings. Solemn declarations in open court carry a strong presumption of verity.” Blackledge v. Allison, 431 U.S. 63, 73-74 (1977).
In light of the lengthy plea colloquy in which the Court explained the guilty plea process in detail, and was assured by Petitioner that he understood the process, his plea agreement, and the consequences of his plea, and that no one had coerced his plea, Petitioner has not established that his guilty plea was involuntarily or unknowingly entered. “The subsequent presentation of conclusory allegations unsupported by specific facts is subject to summary dismissal, as are contentions that in the face of the record are wholly incredible.” Id. at 74. “[P]lea bargaining retains its benefits of certainty and efficiency ‘only if dispositions by guilty plea are accorded a great measure of finality.'” Winthrop-Redin v. U.S., 767 F.3d 1210, 1216 (11th Cir. 2014), quoting Blackledge, 431 U.S. at 71.
Conclusion
WHEREFORE, it is recommended that Petitioner's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 be DENIED. (Doc. 144).
Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to this Recommendation, or seek an extension of time to file objections, WITHIN FOURTEEN (14) DAYS after being served with a copy thereof. The District Judge shall make a de novo determination as to those portions of the Recommendation to which objection is made; all other portions of the Recommendation may be reviewed by the District Judge for clear error.
The parties are hereby notified that, pursuant to Eleventh Circuit Rule 3-1, “[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice.”
The undersigned finds no substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). Therefore, it is recommended that the Court deny a certificate of appealability in its Order addressing the grounds raised in this § 2255 Petition. If the Petitioner files an objection to this Recommendation, he may include therein any arguments he wishes to make regarding a certificate of appealability.
SO RECOMMENDED.