Opinion
1:15cr28/AW/GRJ 1:19cv59/AW/GRJ
05-05-2021
UNITED STATES OF AMERICA, v. CURTIS KENNEDY WILLIAMS Reg. No. 23751-017
GARY R. JONES United States Magistrate Judge
REPORT AND RECOMMENDATION
GARY R. JONES United States Magistrate Judge
This matter is before the court upon Petitioner's “Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody.” ECF No. 178. The Government has filed a response, ECF No. 181, and Petitioner filed a reply. ECF No. 183. The undersigned also granted, in part, Petitioner's motion to amend, permitting him to add a single additional claim. ECF Nos. 186, 187. Thereafter, the Government filed a “Response to Defendant's Grounds Five and Nine Claims (sic) in his Motion and Amended Motion. . .” conceding that Petitioner is entitled to resentencing. ECF No. 188. The case was referred to the undersigned for the issuance of all preliminary orders and any recommendations to the district court regarding dispositive matters. See N.D. Fla. Loc. R. 72.2(B); see also 28 U.S.C. § 636(b); Fed.R.Civ.P. 72(b). After a review of the record and the arguments presented, the Court concludes that the Petitioner's motion should be granted in part as set forth herein.
Petitioner filed a pleading titled “Defendant's response to Government's opposition in Regards to Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Federal Inmate. (ECF No. 185.) Pages two through four of this document were already submitted as part of ECF No. 183 (pages four through six).
BACKGROUND and PROCEDURAL HISTORY
On November 17, 2015, a grand jury returned a three-count indictment charging Petitioner Curtis Kennedy Williams (“Williams”) and codefendant Shakayla Nicole Taylor with crimes arising from the kidnapping of an adult female identified as N.J. ECF No. 1. Count One charged the defendants with kidnapping in violation of 18 U.S.C. § 1201(a)(1) and 2; Count Two charged the defendants with possession of a firearm in furtherance of a crime of violence, identified as kidnapping in violation of 18 U.S.C. § 924(c)(1)(A) and 2, and Count Three charged Williams with possession of a firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Williams, who was represented by Assistant Federal Public Defender Darren Johnson at the time, was ordered detained pending trial. ECF Nos. 19, 23.
After several continuances, on July 15, 2016, co-defendant Taylor entered a guilty plea before the undersigned. ECF Nos. 59-63, 65. Williams' two-day trial commenced on July 26, 2016. ECF Nos. 140-141. The victim, N.J., arrived to testify in the cold courtroom wearing a jacket she had borrowed from the Alachua County Sheriff's Office victim advocate. The words “Victim Advocate” appeared on the back and “Alachua County Victim Advocate Sheriff's Office” on the front. After the defense brought the jacket to the court's attention, the judge asked the jury to leave the courtroom and directed N.J. to remove the jacket. Williams moved for a mistrial. The Court denied the motion, instead issuing a general curative instruction before N.J. testified. ECF No. 140 at 56-68. Co-defendant Taylor, who had been in a relationship with Williams at the time of the events in question, was also among the witnesses who testified against him. The jury found Williams guilty on all counts. ECF No. 76.
As summarized in the PSR, and in the Eleventh Circuit's opinion on appeal, Williams and N.J. dated for approximately four years, and in March 2015 they had a child together. After the birth of their child, N.J. broke up with Williams because he was physically abusive and had been seeing another woman, co-defendant Taylor. On October 19, 2015, N.J. dropped their son off at day care and went to class at City College in Gainesville, Florida. While in class, she received a call from the day care facility advising that Williams wanted to see their son. N.J. told the day care center and Williams that Williams was not allowed to see their child. Williams and Taylor then drove to the campus where N.J. was attending class. N.J. left class to talk to Williams, who put her in a chokehold and dragged her towards the vehicle. Taylor, who was waiting inside, opened the door to enable Williams to force N.J. into the car. To subdue N.J., Williams brandished a pistol, choked and bit N.J., and threatened her. He also fired the gun inside the vehicle. Taylor stopped at one point for gas, and Williams took N.J. into a wooded area where he raped her at gunpoint. After arriving in Louisiana, Williams forcibly took N.J. into his and Taylor's apartment. Law enforcement discovered N.J.'s location and began surveillance on the apartment complex. When Williams left the apartment to clean the interior of the car, he was arrested. N.J. then fled from the apartment towards the police, telling them that Taylor was still inside the apartment and there might be a gun inside. Officers entered the apartment and arrested Taylor. A search warrant revealed a gun in the apartment and a spent shell casing and bullet hole in the back seat of the vehicle.
See United States v. Beckles, 565 F.3d 832, 843-44 (11th Cir. 2009) (“PSR [facts] are undisputed and deemed to have been admitted unless a party objects to them before the sentencing court with specificity and clarity”).
There were multiple revisions to Williams' Presentence Investigation Report. See ECF Nos. 89, 95, 96, 107, 115. The Fourth Final Presentence Investigation Report (“PSR”) controls. In this PSR, Counts One and Three were grouped for guidelines calculation purposes. ECF No. 115, PSR ¶ 26. Williams had a base offense level of 32, and with a six-level increase due to the sexual assault of N.J., his total offense level became 38. (PSR ¶¶ 27-37.) His criminal history category was IV, and the guideline imprisonment range was 324 to 405 months. (PSR ¶¶ 50, 51, 97.) A ten-year consecutive mandatory minimum applied to Count Two. Williams faced a statutory maximum term of life imprisonment on Count One, a minimum term of ten years and a maximum of life on Count Two (to be served consecutively to any other counts), and a maximum term of ten years on Count Three, in addition to supervised release on all counts, a special monetary assessment and a potential fine. ECF No. 115, PSR ¶¶ 95, 96.
Points were assessed for two other incidents of domestic battery against women with whom Williams shared a child. (ECF No. 115, PSR ¶¶ 41, 43.) It is not clear whether N.J. was the victim in those cases as well, because Williams has at least three children with different women. (PSR ¶¶ 74, 75.)
Attorney Gilbert Schaffnit was substituted for trial counsel Darren Johnsen on October 11, 2016. ECF Nos. 92, 93. At the May 3, 2017 sentencing, Williams maintained his innocence and expressed his satisfaction with his new attorney, but he made no specific objections to the calculation of the guidelines. ECF No. 143 at 3, 9. The defense argued that a sentence at the low end of the guidelines was appropriate, noting that despite his criminal history, Williams had never served time in prison. The Court, nonetheless, sentenced Williams to 405 months of imprisonment on Count One, a consecutive term of 120 months on Count Two, and a concurrent 120-month term on Count Three. ECF Nos. 119, 120; ECF No. 143 at 31-36.
Williams unsuccessfully appealed. ECF No. 159. He claimed he was denied a fair trial because the jury may have been prejudiced against him when the jurors saw N.J. wearing the “victim advocate” jacket and that the Court should have granted his motion for a mistrial. The Eleventh Circuit found no abuse of discretion. Williams also argued that the Government should not have been allowed to introduce Rule 404(b) evidence of prior crimes and bad acts, specifically N.J.'s and Taylor's testimony about crimes committed by Williams during their relationships with him and during the kidnapping. The Eleventh Circuit found no plain error, and further found even if the district court had plainly erred, the abundant evidence of Williams' guilt precluded a finding that the outcome of the proceedings would have been different but for the admission of the challenged testimony.
As amended, Williams' § 2255 petition contains six grounds for relief. He claims counsel was ineffective in five respects:
1. Failure to object to Rule 404(b) evidence introduced through the testimony of N.J. and co-defendant Taylor;
2. Failure to object to questions posed to N.J. that were leading or related to another uncharged crime;
3. Failure to object to prosecutor's burden-shifting comment, in closing, that Williams had not addressed certain aspects of the case;
4. Failure to object to the application of the six-level enhancement for sexual exploitation; and
5. Failure to object to his conviction on Count 2 based on Johnson v. United States, 135 S.Ct. 2551 (2015) and Sessions v. Dimaya, 138 S.Ct. 1204 (2018).ECF No. 178. His last claim, Ground Nine of his amended motion, is that his conviction on Count 2 should be overturned because kidnapping is not a crime of violence under § 924(c), relying on United States v. Davis, 139 S.Ct. 2319 (2019).
The Government concedes that Williams is entitled to relief based on the arguments raised in Grounds Five and Nine, and that he should be resentenced. ECF No. 188. It opposes Williams' request for relief on the remaining grounds.
ANALYSIS
General Standard of Review Applicable to all Claims
“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). A prisoner is entitled to relief under section 2255 if the court imposed a sentence that (1) violated the Constitution or laws of the United States, (2) exceeded its jurisdiction, (3) exceeded the maximum authorized by law, or (4) is otherwise subject to collateral attack. See 28 U.S.C. § 2255(a); McKay v. United States, 657 F.3d 1190, 1194 n.8 (11th Cir. 2011). “Relief under 28 U.S.C. § 2255 ‘is reserved for transgressions of constitutional rights and for that narrow compass of other injury that could not have been raised in direct appeal and would, if condoned, result in a complete miscarriage of justice.'” Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004) (citations omitted). The “fundamental miscarriage of justice” exception recognized in Murray v. Carrier, 477 U.S. 478, 496 (1986), provides that it must be shown that the alleged constitutional violation “has probably resulted in the conviction of one who is actually innocent ....”
The law is well established that a district court need not reconsider issues raised in a section 2255 motion that have been resolved on direct appeal. Stoufflet v. United States, 757 F.3d 1236, 1239 (11th Cir. 2014); United States v. Nyhuis, 211 F.3d 1340, 1343 (11th Cir. 2000); Mills v. United States, 36 F.3d 1052, 1056 (11th Cir. 1994). Once a matter has been decided adversely to a defendant on direct appeal, it cannot be relitigated in a collateral attack under section 2255. Nyhuis, 211 F.3d at 1343 (quotation omitted).
Because a motion to vacate under section 2255 is not a substitute for direct appeal, issues which could have been raised on direct appeal are generally not actionable in a section 2255 motion and will be considered procedurally barred. Lynn, 365 F.3d at 1234B35; Bousley v. United States, 523 U.S. 614, 621 (1998); McKay v. United States, 657 F.3d 1190, 1195 (11th Cir. 2011). An issue is “‘available' on direct appeal when its merits can be reviewed without further factual development.” Lynn, 365 F.3d at 1232 n.14 (quoting Mills, 36 F.3d at 1055). Absent a showing that the ground of error was unavailable on direct appeal, a court may not consider the ground in a section 2255 motion unless the defendant establishes (1) cause for not raising the ground on direct appeal, and (2) actual prejudice resulting from the alleged error, that is, alternatively, that he is “actually innocent.” Lynn, 365 F.3d at 1234; Bousley, 523 U.S. at 622 (citations omitted).
Ineffective assistance of counsel claims generally are not cognizable on direct appeal and are properly raised by a' 2255 motion regardless of whether they could have been brought on direct appeal. Massaro v. United States, 538 U.S. 500, 503 (2003); see also United States v. Campo, 840 F.3d 1249, 1257 n.5 (11th Cir. 2016). In order to prevail on a claim of ineffective assistance of counsel, a defendant must show (1) his attorney's representation fell below “an objective standard of reasonableness, ” and (2) a reasonable probability exists that, but for counsel's unprofessional conduct, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687 (1984). “The burden of persuasion is on a section 2255 petitioner to prove, by a preponderance of the competent evidence, both that counsel's performance was unreasonable, and that [ ]he was prejudiced by that performance.” Demar v. United States, 228 Fed.Appx. 940, 950 (11th Cir. 2007) (quotation marks, brackets, and citations omitted); see also Johnson v. Alabama, 256 F.3d 1156, 1176 (11th Cir. 2001) (“The petitioner bears the burden of proof on the ‘performance' prong as well as the ‘prejudice' prong of a Strickland claim, and both prongs must be proved to prevail.”).
“Unpublished opinions are not considered binding precedent, but they may be cited as persuasive authority.” 11th Cir. R. 36-2.
In determining whether counsel's conduct was deficient, this court must, with much deference, consider “whether counsel's assistance was reasonable considering all the circumstances.” Strickland, 466 U.S. at 688; see also Dingle v. Sec'y for Dep't of Corr., 480 F.3d 1092, 1099 (11th Cir. 2007). Reviewing courts “must indulge a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689; see also Chandler v. United States, 218 F.3d 1305, 1315B16 (11th Cir. 2000) (discussing presumption of reasonableness of counsel's conduct); Lancaster v. Newsome, 880 F.2d 362, 375 (11th Cir. 1989) (emphasizing that petitioner was “not entitled to error-free representation”). To show counsel's performance was unreasonable, a defendant must establish that “no competent counsel would have taken the action that his counsel did take.” Gordon v. United States, 518 F.3d 1291, 1301 (11th Cir. 2008) (citations omitted); Chandler, 218 F.3d at 1315.
To establish prejudice, a defendant must show that, but for counsel's deficient performance, the outcome of the proceeding would have been different. Strickland, 466 U.S. at 694. “The likelihood of a different result must be substantial, not just conceivable.” Harrington v. Richter, 562 U.S. 86, 112 (2011) (quoting Strickland). For the court to focus merely on “outcome determination, ” however, is insufficient; “[t]o set aside a conviction or sentence solely because the outcome would have been different but for counsel's error may grant the defendant a windfall to which the law does not entitle him.” Lockhart v. Fretwell, 506 U.S. 364, 369B70 (1993); Allen v. Sec'y, Fla. Dep't of Corr., 611 F.3d 740, 754 (11th Cir. 2010). A defendant therefore must establish “that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Lockhart, 506 U.S. at 369 (quoting Strickland, 466 U.S. at 687). Or in the case of alleged sentencing errors, a defendant must demonstrate that there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been less harsh due to a reduction in the defendant's offense level. Glover v. United States, 531 U.S. 198, 203B04 (2001).
To establish ineffective assistance, a defendant must provide factual support for his contentions regarding counsel's performance. Smith v. White, 815 F.2d 1401, 1406B07 (11th Cir. 1987). Bare, conclusory allegations of ineffective assistance are insufficient to satisfy the Strickland test. See Boyd v. Comm'r, Ala. Dep't of Corr., 697 F.3d 1320, 1333B34 (11th Cir. 2012); Dale v. United States, 809 Fed.Appx. 727, 728 (11th Cir. 2020) (citing Wilson v. United States, 962 F.2d 996, 998 (11th Cir. 1992)). Furthermore, counsel is not constitutionally deficient for failing to preserve or argue a meritless claim. Hollis v. United States, 958 F.3d 1120, 1124 (11th Cir. 2020) (counsel not constitutionally ineffective for failing to raise meritless objection to use of prior drug convictions as predicate offenses under ACCA); Denson v. United States, 804 F.3d 1339, 1342 (11th Cir. 2015) (citing Freeman v. Attorney General, Florida, 536 F.3d 1225, 1233 (11th Cir. 2008)). This is true regardless of whether the issue is a trial or sentencing issue. See, e.g., Lattimore v. United States, 345 Fed.Appx. 506, 508 (11th Cir. 2009) (counsel not ineffective for failing to make a meritless objection to an obstruction enhancement); Brownlee v. Haley, 306 F.3d 1043, 1066 (11th Cir. 2002) (counsel was not ineffective for failing to raise issues clearly lacking in merit); Chandler v. Moore, 240 F.3d 907, 917 (11th Cir. 2001) (counsel not ineffective for failing to object to “innocuous” statements by prosecutor, or accurate statements by prosecutor about effect of potential sentence); United States v. Winfield, 960 F.2d 970, 974 (11th Cir. 1992) (no ineffective assistance of counsel for failing to preserve or argue meritless issue).
Finally, the Eleventh Circuit has recognized that given the principles and presumptions set forth above, “the cases in which habeas petitioners can properly prevail . . . are few and far between.” Chandler, 218 F.3d at 1313. This is because the test is not what the best lawyers would have done or even what most good lawyers would have done, but rather whether some reasonable lawyer could have acted in the circumstances as defense counsel acted. Dingle, 480 F.3d at 1099; Williamson v. Moore, 221 F.3d 1177, 1180 (11th Cir. 2000).
An evidentiary hearing is unnecessary when “the motion and files and records conclusively show that the prisoner is entitled to no relief.” See 28 U.S.C. § 2255(b); Rosin v. United States, 786 F.3d 873, 877 (11th Cir. 2015); Gordon v. United States, 518 F.3d 1291, 1301 (11th Cir. 2008). Not every claim of ineffective assistance of counsel warrants an evidentiary hearing. Gordon, 518 F.3d at 1301 (citing Vick v. United States, 730 F.2d 707, 708 (11th Cir. 1984)). To be entitled to a hearing, a defendant must allege facts that, if true, would prove he is entitled to relief. See Hernandez v. United States, 778 F.3d 1230, 1234 (11th Cir. 2015). A hearing is not required on frivolous claims, conclusory allegations unsupported by specifics, or contentions that are wholly unsupported by the record. See Winthrop-Redin v. United States, 767 F.3d 1210, 1216 (11th Cir. 2014) (explaining that “a district court need not hold a hearing if the allegations [in a' 2255 motion] are . . . based upon unsupported generalizations”) (internal quotation marks omitted); Peoples v. Campbell, 377 F.3d 1208, 1237 (11th Cir. 2004). Even affidavits that amount to nothing more than conclusory allegations do not warrant a hearing. Lynn, 365 F.3d at 1239. Finally, disputes involving purely legal issues can be resolved by the court without a hearing.
Grounds Five and Nine-Viability of Conviction on Count Two
The Court first considers the claims affording Williams relief. Grounds Five and Nine of Williams' submissions challenge the continued viability of his conviction on Count Two, possessing a firearm in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A) and 2. He contends that kidnapping is not a crime of violence and cannot serve as a predicate act for such a conviction. In Ground Five, he asserts first that the residual clause of § 924(c)(3)(B) is unconstitutionally vague and second that kidnapping is not encompassed within § 924(c)(3)(A). ECF No. 178 at 10, citing Johnson v. United States, 135 S.Ct. 2551 (2015); Sessions v. Dimaya, 138 S.Ct. 1204 (2018).) In Ground Nine, Williams makes a variation of the same argument, relying on the Supreme Court's decision in United States v. Davis, 139 S.Ct. 2319 (2019).
The term “crime of violence” is defined in § 924(c)(3) as either a felony that “has as an element the use, attempted use or threatened use of physical force against the person or property of another (the “elements clause”), or a felony that by its nature involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense (the “residual clause”). 18 U.S.C. § 924.
In the seminal Johnson case, the Supreme Court invalidated the residual clause contained in the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii). Johnson, 135 S.Ct. 2551. Three years later the Court held that the nearly identical residual clause in 18 U.S.C. § 16(b) was unconstitutionally vague. Dimaya, 138 S.Ct. 1204. Finally, in 2019, the Supreme Court invalidated the residual clause in § 924(c)(3)(B). Davis, 139 S.Ct. at 2336. Like its predecessor cases, Davis undermined neither the elements clause of § 924(c)(3)(A) nor the definition of “drug trafficking crime” contained in § 924(c)(2). See United State v. Hunter, 749 Fed.Appx. 811, 813 (11th Cir. 2018).
To succeed on a residual clause challenge in this circuit, a petitioner must show it is more likely than not that the residual clause, and only the residual clause, was the basis for his § 924(c) conviction. See Beeman v. United States, 871 F.3d 1215, 1222 (11th Cir. 2017) (holding that, to prove a Johnson claim, the defendant must show it was more likely than not that the ACCA's residual clause was the basis for his enhanced sentence.). To make this determination, the court may look to the record or to the law in existence at the time of the petitioner's conviction. Id. at 1222-24 & n.5. For instance, if the law was clear at the time of a petitioner's conviction that the predicate conviction was a crime of violence only under the residual clause, “that circumstance would strongly point to a sentencing per the residual clause.” Id. at 1224, n. 5.
In this case, it is not clear from either the record or prevailing law that the Court relied only on the residual clause. Indeed, there is case law predating Williams' conviction that suggests the Court would have considered kidnapping to be a “crime of violence.” See United States v. Salemi, 26 F.3d 1084, 1087 (11th Cir. 1994) (holding that kidnapping qualifies as a crime of violence under the elements clause of the guidelines because it “inherently involves the threat of violence.”) Thus, lacking conclusive evidence of exclusive reliance on the residual clause, Williams cannot meet his burden, Beeman, 871 F.3d at 1225, and no relief is warranted on his stand-alone Davis (residual clause) claim.
The inquiry does not end there. Williams' submissions also contain a claim that his § 924(c) conviction is unlawful because kidnapping does not qualify as a crime of violence under the elements, or “force, ” clause. (See ECF No. 178 at 10, 186 at 4.) This is distinct from a claim based solely on the invalidation of the residual clause. See Beeman, 871 F.3d at 1220 (distinguishing a Johnson-based challenge to an ACCA predicate, which focuses on the residual clause, from a claim that petitioner was erroneously sentenced under the elements clause). A petitioner typically cannot use a timely residual clause challenge based on new precedent as a portal to reopen the question of whether a predicate offense qualifies under the elements clause. In re Hires, 825 F.3d 1297, 1303 (11th Cir. 2016). Because the government, however, agrees that Williams' kidnapping conviction does not qualify as a crime of violence after Davis, it has expressly waived any applicable affirmative defenses, including timeliness and procedural default. (ECF No. 188 at 4, n.2 and 7 (citing McCoy v. United States, 266 F.3d 1245, 1258-59 (11th Cir. 2001); Day v. McDonough, 547 U.S. 198, 210 (2006)).)
The Eleventh Circuit has squarely held that kidnapping in violation of 18 U.S.C. § 1201(a) does not qualify as a “crime of violence” because it may be accomplished without the use of physical force. United States v. Gillis, 938 F.3d 1181, 1205-10 (11th Cir. 2019) (considering whether kidnapping is a “crime of violence” for purposes of 18 U.S.C. § 373); Williams v. United States, 985 F.3d 813, 820 (11th Cir. 2021) (noting that it was “possible” and “maybe even highly likely” that the court would hold that federal kidnapping does not satisfy the elements clause of the ACCA). Thus, federal kidnapping cannot qualify as a “crime of violence” under § 924(c)(3)(A). Furthermore, since Davis invalidated the residual clause in § 924(c)(3)(B) as void for vagueness, kidnapping does not qualify as a crime of violence for purposes of § 924(c). Therefore, as the Government concedes, Williams' conviction and sentence on Count Two must be vacated and he is entitled to resentencing.
The Government concurs with Williams' request that the Court vacate and set aside his sentence on Count Two and resentence him on the surviving counts. The Government says a full resentencing is warranted because absent the § 924(c) conviction, Williams' sentence does not take into account the aggravating circumstances of his brandishing and discharge of the firearm during the offense conduct. ECF No. 188 at 12. Merely vacating the consecutive 120-month term on Count Two without revisiting the sentences imposed on Counts One and Three would not comport with the directive of § 3553(a) And a reduced sentence based upon the legal fiction that the kidnapping could have been premised on the use of non-physical force would afford Williams a windfall to which he is not entitled. Accordingly, the Court should conduct a resentencing on Counts One and Three after vacating and setting aside the sentence on Count Two.
Ground One-Failure to Object to 404(b) evidence
Williams' four remaining claims are standard ineffective assistance of counsel claims. First, Williams contends that counsel should have objected to the Rule 404(b) evidence introduced at trial through the testimony of N.J. and co-defendant Taylor about “an alleged uncharged sexual assault, alleged domestic abuse and other uncharged crimes.” ECF No. 178 at 4.
The propriety of the admission of this evidence was addressed by the Eleventh Circuit on appeal. The Eleventh Circuit found the evidence in question was admissible to show, for instance, Williams' motive for the kidnapping and to explain Taylor's motive for participating in the scheme. ECF No. 159 at 10-11. The Eleventh Circuit also found Williams had failed to show that if the district court erred in admitting the evidence that there was a reasonable probability that but for the error the outcome would have been different. Id. at 12. Williams attempts to defeat the procedural bar by framing his claim as one of ineffective assistance of counsel. The same analysis, however, is fatal to Williams' ineffective assistance of counsel claim. He cannot show that counsel was constitutionally ineffective for not objecting to the evidence in question because he cannot show prejudice. The district court could have overruled his objection finding the evidence to be relevant to show motive or intent. Counsel is not constitutionally deficient for failing to preserve or argue a meritless claim. Hollis, 958 F.3d at 1124. Or, alternatively, even if the objection had been sustained, Williams has not shown that the outcome of the proceedings would have been different in light of the abundant evidence against him. He thus cannot show prejudice under Strickland. Counsel's lack of objection did not deprive Williams of a fair trial, see Lockhart, 506 U.S. at 369, and no relief is warranted.
Ground Two-Failure to object to improper questions of N.J.
Williams next contends counsel was constitutionally ineffective because he did not object to leading questions the Government posed to N.J. during direct examination. Williams is correct that the Government used leading questions to elicit N.J.'s testimony about whether, in her opinion, Williams had violated a court order by seeking her out at her university, how Williams sexually assaulted her, and whether he used a condom See ECF No. 140 at 84, 93, 94. Williams, however, has not shown that counsel's performance was constitutionally deficient.
Under Rule 611(c) of the Federal Rules of Evidence, leading questions may be used on direct examination to develop the witness's testimony. Even if the Court had sustained a defense objection to the format of the questions, the Government could have reframed its inquiry to elicit the same information. In short, counsel was not ineffective for failing to make a meritless objection that would not have altered the outcome of the proceedings, and no relief is warranted. See Hollis, 958 F.3d at 1124.
Ground Three-Comment on Williams' Right to Remain Silent
Third, Williams complains counsel should have objected to alleged “prosecutorial misconduct” during closing arguments. He asserts the Government improperly commented on his constitutional right to remain silent and shifted the burden of proof by stating “Defendant (sic) has not addressed any of the things that I discussed with you” in reference to call logs, voice mail, and rape allegations. (ECF No. 178 at 6-7; ECF No. 141 at 166-167.) Williams' allegations evidence a misunderstanding of the remarks in question. The Government's statement in closing was directed not to Williams himself, or his failure to testify, but rather to the defense's failure to rebut the evidence in the defense's closing argument. There was no comment on William's right to remain silent and, therefore, he is not entitled to relief. See Hollis, 958 F.3d at 1124; Chandler, 240 F.3d at 917 (counsel not ineffective for failing to object to “innocuous” statements by prosecutor).
Ground Four-Failure to object to guidelines enhancement
Williams' last ineffective assistance of counsel claim is that counsel should have objected to the application of the six-point enhancement for sexual exploitation of the victim. ECF No. 178 at 8. The facts supporting the application of this enhancement were established by a preponderance of the evidence through the testimony of N.J. and co-defendant Taylor at trial. Although counsel did not file any objections, the Court noted at sentencing that it could have made factual findings that would support the guidelines enhancement and calculations. ECF No. 143 at 8. Thus, counsel was not constitutionally ineffective for failing to make a meritless objection. Lattimore, 345 Fed.Appx. at 508; Brownlee, 306 F.3d at 1066; Hollis, 958 F.3d at 1124. Williams is not entitled to relief.
CONCLUSION
For the foregoing reasons, the Court concludes that the claims in Grounds One through Four should be denied without an evidentiary hearing. Williams is entitled to relief on claims Five and Nine and the Court should conduct a resentencing on the remaining claims.
The Court has also reviewed the unsworn “Affidavit of Truth and Facts, ” dated August 10, 2020 (ECF No. 192) and finds no relief or additional discussion is warranted on the matters raised therein.
CERTIFICATE OF APPEALABILITY
Rule 11(a) of the Rules Governing Section 2255 Proceedings provides that “[t]he district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant, ” and if a certificate is issued “the court must state the specific issue or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2).” A timely notice of appeal must still be filed, even if the court issues a certificate of appealability. Rule 11(b), § 2255 Rules.
After review of the record, the court finds no substantial showing of the denial of a constitutional right as to the claims raised on Grounds One through Four. 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000) (explaining how to satisfy this showing) (citation omitted). Therefore, it is also recommended that the court deny a certificate of appealability as to these claims.
The second sentence of Rule 11(a) provides: “Before entering the final order, the court may direct the parties to submit arguments on whether a certificate should issue.” If there is an objection to this recommendation by either party, that party may bring this argument to the attention of the district judge in the objections permitted to this report and recommendation.
Based on the foregoing, it is respectfully RECOMMENDED that:
The “Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a person in Federal Custody, ” as amended, ECF Nos. 178, 186, should be DENIED in part and GRANTED in part as follows:
1. Grounds One through Four of Petitioner's motion should be DENIED without an evidentiary hearing, and a certificate of appealability should be denied as to these claims.
2. Grounds Five and Nine of Petitioner's motion and amended motion respectively, considered jointly, should be GRANTED, Petitioner's sentence and conviction on Count Two should be vacated, and he should be resentenced.
NOTICE TO THE PARTIES
Objections to these proposed findings and recommendations must be filed within fourteen (14) days after being served a copy thereof. Any different deadline that may appear on the electronic docket is for the court's internal use only, and does not control. A copy of objections shall be served upon all other parties. If a party fails to object to the magistrate judge's findings or recommendations as to any particular claim or issue contained in a report and recommendation, that party waives the right to challenge on appeal the district court's order based on the unobjected-to factual and legal conclusions. See 11th Cir. Rule 3-1; 28 U.S.C. § 636.