Opinion
Case No. 1:12-cr-031 also 1:14-cv-279
04-07-2014
UNITED STATES OF AMERICA, Plaintiff, v. ORLANDO GAMBLE, Defendant.
Chief Judge Susan J. Dlott
Magistrate Judge Michael R. Merz
ORDER TO SUPPLEMENT § 2255 MOTION
This criminal case is before the Court on Defendant's Motion to Vacate under 28 U.S.C. § 2255 (Doc. No. 33). The Motion raises one claim for relief as follows:
Ground One: Ineffective Assistance of Counsel: Attorney James F. Maus failed to object to derogatory information in the Gamble's PSR.(Motion, Doc. No. 33, PageID 84.)
Supporting Facts: The Probation Dept. added a dismissed juvenile charge to the PSR, "the defendant was originally charged w/kidnapping and gross sexual imposition," in which the BOP is using to have me classified as an [sic] sex offender. Mr. Maus failed to apply Rule 32(d)(3(A) & (C) and f(1)( & (3) before the PSR was submitted to the Court. Mr. Gamble requested that Mr. Maus object to this information being used, and was told it won't hurt u [sic] lets [sic] just focus on the sfty [sic] valve and getting you under 5 year [sic]. See Exhibit A, BOP document classifying Gamble as Sex Offender. This status is topping him from a litany of rehabilitation programs, and might result in physical harm to him by other inmates.
The governing standard for ineffective assistance of counsel is found in Strickland v. Washington, 466 U.S. 668 (1984):
A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.466 U.S. at 687. In other words, to establish ineffective assistance, a defendant must show both deficient performance and prejudice. Berghuis v. Thompkins, 560 U.S. 370, ___, 130 S.Ct. 2250, 2264 (2010), citing Knowles v. Mirzayance, 556 U.S.111 (2009).
With respect to the first prong of the Strickland test, the Supreme Court has commanded:
Judicial scrutiny of counsel's performance must be highly deferential. . . . A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy."466 U.S. at 689.
As to the second prong, the Supreme Court held:
The 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 overcome confidence in the outcome.466 U.S. at 694. See also Darden v. Wainwright, 477 U.S. 168, 184 (1986), citing Strickland, supra.; Wong v. Money, 142 F.3d 313, 319 (6th Cir. 1998), citing Strickland, supra; Blackburn v. Foltz, 828 F.2d 1177, 1180 (6th Cir. 1987), quoting Strickland, 466 U.S. at 687. "The likelihood of a different result must be substantial, not just conceivable." Storey v. Vasbinder, 657 F.3d 372, 379 (6th Cir. 2011), cert. denied, ___ U.S. ___, 132 S.Ct. 1760 (2012), quoting Harrington v. Richter, 562 U.S. ___, ___, 131 S. Ct. 770, 792 (2011).
Counsel's performance is measured by "prevailing professional norms" at the time of the alleged errors. Rickman v. Bell, 131 F.3d 1150, 1154 (6th Cir. 1997).
In his Motion, Gamble claims Attorney Maus did not dispute a statement in the Presentence Investigation Report that, as a juvenile, Gamble had been charged with kidnapping and gross sexual assumption. At the present stage of the matter, the Magistrate Judge assumes the truth of the statement. Standing alone, that does not state a claim for relief under 28 U.S.C. § 2255 because it cannot have been deficient performance by trial counsel to have failed to object to a relevant true statement in the PSR. The Motion does not claim the statement is untrue.
Accordingly, Gamble is ordered to supplement his § 2255 Motion not later than April 20, 2014, by stating whether or not the complained-of statement in the PSR is true and, if it is true, how Gamble believes Maus could have had it removed from the PSR.
IT SO ORDERED.
Michael R. Merz
United States Magistrate Judge