Opinion
NO. 5:11-cr-00069-MTT-CHW
08-29-2018
JOHN F. WILLIAMS, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
REPORT AND RECOMMENDATION
Before the Court is Petitioner John F. Williams's Petition for Writ of Error Coram Nobis Doc. 128. Petitioner has raised four grounds for relief, with numerous sub-claims within each ground. Id . at 1-19. Petitioner's four grounds include: (1) Sixth Amendment ineffective assistance of counsel, (2) Fourteenth Amendment equal protection and equal access to courts, (3) Fifth Amendment due process, and (4) Sixth Amendment denial of right to confront witness. Doc. 128, pp. 5-19. The Court held an evidentiary hearing on April 25, 2018, regarding ground one, Petitioner's claim for ineffective assistance of counsel. Following the hearing, the Parties were permitted to file briefs in support of their positions. For the following reasons, it is RECOMMENDED that Petitioner's coram nobis petition be DENIED.
FACTUAL AND PROCEDURAL HISTORY
A federal grand jury returned a three-count indictment against Petitioner on October 13, 2011. Doc. 1. Count One was for unlawfully obtaining a commission for the sale of a vehicle in violation of 18 U.S.C. § 1951(a), Count Two was for making a materially false statement to the FBI in violation of 18 U.S.C. § 1001, and Count Three was for attempting to tamper with a witness in violation of 18 U.S.C. § 1512(b)(3). Doc. 55. Evidence presented at trial showed that Petitioner, a Warner Robins City Councilman, improperly used his official position to negotiate the sale of a truck to the Warner Robins Police Department. Doc. 83, pp. 38-40, 98. The salesman involved in the truck sale with Petitioner was a confidential informant for the Federal Bureau of Investigation ("FBI"). Doc. 84, pp. 93, 116. The informant informed the FBI of Petitioner's intent to sell the truck to the city while receiving a commission for the sale. Id . at 105-06. The purchase of the truck was approved, and the informant paid Petitioner a commission for the truck. Id . The sale of the truck, per FBI instructions, was subsequently cancelled and Petitioner returned the money to the informant. Id . at 24, 26-27, 47.
Following the attempted sale, the FBI interviewed Petitioner. Doc. 85, pp. 5-6. Petitioner informed the FBI that he acted alone in the sale of the truck and that he did not receive a commission from the sale of the vehicle. Id . Evidence at trial showed that following the FBI's interview with Petitioner, Petitioner called the informant and instructed the informant to cover up the sale of the truck to the city. Doc. 84, pp. 106-07. Evidence further showed that Petitioner instructed the informant to not talk to the FBI about the transaction. Doc. 84, p. 185.
Petitioner was convicted on April 25, 2012, on all three counts. Doc. 55. Petitioner filed an appeal of his conviction on July 6, 2012. Doc. 75. The Court of Appeals for the Eleventh Circuit affirmed Petitioner's conviction and sentence on November 14, 2014. Doc. 115; U . S . v . John Williams , No. 12-13630 (11th Cir. Jul. 10, 2014). On June 24, 2015, Petitioner filed a Motion to Vacate pursuant to 28 U.S.C. § 2255. Doc. 117. Petitioner's petition was dismissed due to the Court lacking subject matter jurisdiction, as Petitioner had already been released from federal custody when he filed his § 2255 petition. Doc. 124; Doc. 126.
Petitioner filed his Writ of Error Coram Nobis in July of 2016. Doc. 128. Upon reviewing the petition, the Court ordered an evidentiary hearing on the sole issue of whether Petitioner's trial counsel violated Petitioner's right to testify. Doc. 133. Petitioner was appointed counsel. Doc. 132. No hearing was warranted on Petitioner's grounds two through four, however, because the record was clear that those claims should be denied. Doc. 133, pp. 4-7. A judgment, however, was not rendered regarding grounds two through four, and all four of Petitioner's grounds are discussed in this Recommendation.
DISCUSSION
Petitioner is not entitled to coram nobis relief. A writ of error coram nobis provides a remedy to a petitioner who is, as the Petitioner here, no longer in federal custody. United States v . Spellissy , No. 17-11067, 2017 WL 4387165, at *1 (11th Cir. Oct. 3, 2017); United States v . Peter , 310 F.3d 709, 712 (11th Cir. 2002). The writ of coram nobis is a "remedy of last resort available only in compelling circumstances where necessary to achieve justice." Mills , 221 F.3d at 1203; see Spellissy , 2017 WL 4387165, at *1. Courts may provide coram nobis relief only where: "(1) no other avenue of relief is available or has been available; and (2) the petitioner presents a fundamental error that made the proceedings irregular and invalid." Spellissy , 2017 WL 4387165, at *1; Alikhani v . United States , 200 F.3d 732, 734 (11th Cir. 2000).
Petitioner's ground one, ineffective assistance of counsel, is based on the allegation that Petitioner's attorney prohibited him from testifying. Doc. 144. To prevail on a claim of ineffective assistance of counsel, the Petitioner bears the burden of establishing by a preponderance of the evidence that: 1) his attorney's performance was deficient, and 2) he was prejudiced by the inadequate performance. Strickland v . Washington , 466 U.S. 668, 687 (1984); Chandler v . United States , 218 F.3d 1305, 1313 (11th Cir. 2000). The right to testify at trial is a fundamental constitutional right that is "personal to the defendant and cannot be waived either by the trial court or by defense counsel." Cuthbert v . United States , 296 F. App'x 904, 906-07 (11th Cir. 2008) (quoting United States v . Teague , 953 F.2d 1525, 1534 (11th Cir.1992) ( en banc )). A defense counsel's performance is deficient, violating the first prong of Strickland , if defense counsel refused to accept the defendant's decision to testify and prevented the defendant from exercising his fundamental constitutional right to testify. Teague , 953 F.2d at 1534; Geer v . United States , 354 F. App'x 417, 419 (11th Cir. 2009). Similarly, a failure to inform a criminal defendant of the right to testify would "neglect[ ] the vital professional responsibility of ensuring that the defendant's right to testify is protected and that any waiver of that right is knowing and voluntary." Cuthbert v . United States , 296 F. App'x 904, 906 (11th Cir. 2008); Teague , 953 F.2d at 1534.
Witnesses from the evidentiary hearing provided conflicting testimony regarding counsel's representation of Petitioner. Ms. Christina Hunt, Petitioner's trial counsel, testified during the evidentiary hearing that she educated Petitioner of the trial process and informed Petitioner of his rights, including his right to testify. Doc. 142, p. 59. Hunt communicated with Petitioner several times regarding his rights because she believed Petitioner "did not always understand - he's very opinionated." Id . at 60. Hunt did advise Petitioner not to testify. Indeed, Hunt explained that she "wanted to make sure he understood what my advice to him was in regards to testifying," because in Hunt's opinion, Petitioner's testimony would have "decimate[d] his defense." Id . at 60. Hunt further explained, though, that Petitioner never asked to testify, and when Hunt was questioned as to whether she prevented Petitioner from testifying, Hunt responded: "Absolutely not." Id .
Some of Petitioner's testimony is consistent with Ms. Hunt's testimony. Petitioner confirmed that counsel had "several" conversations regarding his right to testify at trial. Id . at 15. Petitioner also testified that Hunt recommended that Petitioner not testify, stating "[Hunt] said I don't want you on the stand at all." Id . Hunt did not want Petitioner to testify, according to Petitioner, because Hunt "was afraid the prosecution would trip [Petitioner] up." Id . Although Petitioner confirmed that Hunt had several conversations with him regarding his right to testify, Petitioner later testified that Hunt never told Petitioner he had a right to testify. Id . at 15-16.
In his testimony, Petitioner described at least two instances when Hunt specifically prevented Petitioner from testifying. Petitioner testified that during a meeting before the second day of trial, Petitioner asked Hunt, "At what point will I get to tell my side of the story so they'll know the facts, the true facts of it?" Id . at 16. Hunt allegedly placed her hand up to Petitioner and stated, "You won't be testifying." Id . Petitioner's son, who was also present during the meeting, testified that Petitioner asked, "Will I be testifying?" and Hunt informed him he would not be. Id . at 10-11. The second instance occurred during trial when Petitioner "tried to talk" to Hunt about testifying. Id . at 16-17. Hunt instructed Petitioner to be quiet as to not "make the Judge mad." Id . at 16. Petitioner testified that he requested to testify after both the government and the defense rested, but Hunt "just pushed me back in the seat and said to be quiet and she never looked at me." Id . at 16-17. Petitioner claims he "just about came unglued" and "went into shock" after Hunt rested without allowing Petitioner to testify. Id . at 16.
Due to the conflicting testimony, the Court must make a factual determination. Courts are authorized to make specific findings of fact after evidentiary hearings as to whether a petitioner's right to testify was violated. Teague , 953 F.2d at 1534; Cuthbert , 296 F. App'x at 907. Counsel is strongly presumed to have been competent, and the Defendant's burden of persuasion, although not insurmountable, is a "heavy one." Reynolds v . United States , 233 F. App'x 904, 905 (11th Cir. 2007) (quoting Chandler v . United States , 218 F.3d 1305, 1314-16 (11th Cir.2000)); Mata , 400 F. App'x at 424 (defendant must show ineffective assistance by a preponderance of the evidence). Additionally, "where, as here, counsel is experienced, the presumption of competence is even higher." Reynolds , 233 F. App'x at 905; Chandler , 218 F.3d at 1314-16.
The evidence shows that Petitioner was informed of his right to testify. Hunt testified that she both informed Petitioner of his rights, including his right to testify, and that she advised Petitioner not to testify. Hunt added that she had these "conversations" numerous times and that "it would have certainly been my practice to do it with [Petitioner] more than once." Doc. 142, pp. 59-60. Petitioner also confirmed that these "conversations" occurred several times. Id . at 15. Furthermore, Ms. Hunt is an experienced attorney of thirty-three years, having primarily practiced as a criminal defense lawyer. Id . at 58. Hunt has spent a substantial amount of time in federal court and has served for several years as the Executive Director for the Federal Defenders of Middle District of Georgia. Id . Both Ms. Hunt's experience and her testimony that it was her regular practice to inform clients of their right to testify weigh in favor of her credibility. Reynolds , 233 F. App'x 904, 905 (11th Cir. 2007); Teague , 953 F.2d at 1527-28, 1535 (holding that when counsel testified that it was her "normal practice" to discuss the right to testify and that she "probably" had explained this right to the defendant, the district court did not err in finding that defendant failed to show ineffectiveness of counsel); McGriff , 338 F.3d at 1237-38 (holding that when counsel states it was her "ordinary practice" to advise clients of the right to testify, the court does not clearly err in finding it "more likely that not" that counsel had advised the defendant).
The preponderance of the evidence supports a finding not only that Hunt informed Petitioner of his right to testify, but also that she did not override Petitioner's will in advising him not to testify. Hunt's testimony that she did not prevent Petitioner from testifying is more credible than Petitioner's testimony. Petitioner's contention that his attorney prohibited him from testifying after Petitioner specifically requested to testify during trial is unlikely from an experienced attorney like Ms. Hunt. Even more unlikely is Petitioner's testimony that during trial, after Petitioner told Ms. Hunt that he wanted to testify, that Hunt pushed Petitioner back down into his chair and that Petitioner "went into shock." Doc. 142, pp. 16-17. There is no evidence from the trial record that Petitioner attempted to interject that he wanted to testify as Hunt rested, or when the parties discussed jury instructions regarding a defendant who does not testify. Furthermore, Hunt's strong recommendation for Petitioner not to testify does not amount to a prohibition. In fact, Hunt's strong recommendation was simply a fulfillment of her representative obligation. Teague , 953 F.2d at 1533 ("Moreover, if counsel believes that it would be unwise for the defendant to testify, counsel may, and indeed should, advise the client in the strongest possible terms not to testify.").
Even if Petitioner was able establish that his attorney acted to deprive him of his right to testify, Petitioner cannot establish that he was prejudiced by Hunt's alleged inadequate performance. To succeed on his ineffective assistance claim, Petitioner would also be required to establish the second prong of the Strickland standard, that there is a reasonable probability that, but for his attorney's refusal to permit Petitioner to testify, the outcome of the proceedings would have been different. Strickland , 466 U.S. at 697; Meeks , 216 F.3d at 960 (11th Cir. 2000); Nichols v . Butler , 953 F.2d 1550, 1554 (11th Cir.1992) (en banc). In assessing whether Petitioner was prejudiced under Strickland , the question is whether a different result is "reasonably likely," not that a different result is "just conceivable." Strickland , 466 U.S. at 693; Harrington v . Richter , 562 U.S. 86, 111 (2011).
Ledford v . Warden , Georgia Diagnostic & Classification Prison , 818 F.3d 600, 643 (11th Cir. 2016), cert . denied sub nom . Ledford v . Sellers , 137 S. Ct. 1432, 197 L. Ed. 2d 650 (2017), reh'g denied , 137 S. Ct. 2151, 198 L. Ed. 2d 223 (2017) ("The likelihood of a different result must be substantial, not just conceivable."); United States v . Millender , 635 F. App'x 611, 617 (11th Cir. 2015) (holding the alleged new facts are "too speculative to show a reasonable probability of a different result.").
Petitioner cannot show, with reasonable probability, that had he testified the outcome of his trial would have been different. Petitioner contends that his testimony would have required the Court to give Petitioner an entrapment charge. Doc. 144, p. 4. The defense of entrapment has two elements: (1) the Government's inducement of the crime; and (2) the defendant's lack of predisposition to commit the crime before the inducement. United States v . Pisa , 701 F. App'x 781, 784 (11th Cir. 2017); United States v . Orisnord , 483 F.3d 1169, 1178 (11th Cir. 2007). The defendant must carry the initial burden regarding the Government's inducement to present an entrapment defense to the jury. Pisa , 701 F. App'x at 784; States v . Sistrunk , 622 F.3d 1328, 1333 (11th Cir. 2010). A defendant can show inducement by producing evidence "that the government's conduct created a substantial risk that the offense would be committed by a person other than one ready to commit it." United States v . Brown , 43 F.3d 618, 623 (11th Cir. 1995) (quotation marks omitted); Pisa , 701 F. App'x at 784.
It is not reasonably probable that Petitioner's testimony at trial would have required the Court to give an entrapment charge to the jury. First, it is important to note that Ms. Hunt did pursue an entrapment defense at trial. Doc. 142, p. 81. Hunt's attempt was denied at trial, and the Eleventh Circuit affirmed that decision. Id .; Doc. 115, U . S . v . John Williams , No. 12-13630 (11th Cir. Jul. 10, 2014). Furthermore, it is clear from Petitioner's testimony during the evidentiary hearing that his testimony would likely have hurt his chances of receiving an entrapment charge. Petitioner testified that he was the one who first suggested and advised the sale of the truck to the City. Doc. 142, p. 50. Petitioner added, "I think I contacted him twice about it on prompting from them." Doc. 142, p. 50. Based on this testimony, it is not reasonably certain that Petitioner would have carried his initial burden to show government inducement. As such, it is not reasonably probable that Petitioner would have received an entrapment instruction.
Furthermore, the testimony Petitioner presented during the evidentiary hearing directly conflicted with clear evidence brought forth at trial. For example, Petitioner's testimony that he never "brought up" receiving a commission for the sale of the truck directly contradicted evidence brought forth at trial, including audio and video recordings. Doc. 142, p. 53; Doc. 84, pp. 38-40, 98-99. During the trial, the informant testified that Petitioner approached the informant with the idea of selling the vehicle to the city and that Petitioner wished to receive a commission from the vehicle. Doc. 84, pp. 98-100. The informant also testified that Petitioner originally wanted to make "about $500 off the sale" of the vehicle, but that once Petitioner learned the vehicle was going for more, Petitioner wanted to receive a commission of $1,720. Id . at 99, 105-06. Video evidence shown at trial showed the informant paying Petitioner $1,720. Id . at 105-06. Audio tapes also revealed that Petitioner asked the informant to write him a check for $2,500 for the sale of another vehicle that was only "worth about $300." Id . at 106. The informant testified that Petitioner requested the $2,500 check to cover up what Petitioner was making on the truck. Id . at 107.
Testimony from FBI agents showed that Petitioner lied to the agents regarding whether the informant was involved in sale of the vehicle to the city. Doc. 84, pp. 139-40. The FBI agent presented a recorded telephone conversation between Petitioner and the informant in which Petitioner instructed the informant to not talk to the FBI. Id . at 140-41, 185. Additionally, if Petitioner had testified at trial, it is clear Petitioner would have opened the door to unfavorable evidence. For these reasons, Petitioner has not shown a reasonable probability that had he testified he would have received the entrapment charge, and ultimately, a different trial result.
Petitioner's other arguments as to ineffective assistance of counsel claim are without merit. Within Petitioner's ineffective assistance claim, Petitioner has included eleven sub-claims, with numerous additional sub-sub-claims. Doc. 128, pp. 6-15. These claims allege fault in counsel's opening statement (p. 6), failure to impeach or cross-examine witnesses (pp. 7-12, 14), fault with counsel's decision to rest after the conclusion of the Government's case (p. 12), and failure to make a request for disabilities accommodations (p. 15).
These challenges to counsel's performance do not generally establish an ineffective assistance claim. As the Eleventh Circuit has held, "[w]hich witnesses, if any, to call, and when to call them, is the epitome of a strategic decision, and it is one that we will seldom, if ever, second guess." Cuthbert v . United States , 296 F. App'x 904 906 (11th Cir. 2008) (quoting Waters v . Thomas , 46 F.3d 1506, 1512 (11th Cir.1995) ( en banc )). Counsel's decision to rest was also a strategic decision, a decision that is seldom second guessed. See Waters , 46 F.3d at 1512 (11th Cir. 1995) ("There is much wisdom for trial lawyers in the adage about leaving well enough alone"); see also Solomon v . Kemp , 735 F.2d 395, 404 (11th Cir.1984) ("While attorneys may disagree as to how many or what particular witnesses to call, such is the stuff out of which trials are made"), cert . denied , 469 U.S. 1181, 105 S.Ct. 940, 83 L.Ed.2d 952 (1985). Accordingly, Petitioner's claims as to counsel's general strategic performance do not establish a deficient performance.
Furthermore, transcripts in the record show that counsel filed a motion for continuance and that a hearing was held in which Petitioner's health was discussed at length. Doc. 89. Counsel called Petitioner's primary physician as a witness and attempted to achieve accommodations and a continuance due to Petitioner's health. Id . at pp. 2-13. Ultimately, the Court disagreed with counsel's argument and denied the motion for a continuance. Id . at pp. 11-12. Accordingly, counsel's performance was not deficient regarding Petitioner's health accommodations.
Petitioner's additional claims are insufficient to warrant relief under coram nobis. Petitioner had other avenues available besides a petition for writ of error coram nobis in which to bring grounds two through four. See Marchesseault , 692 F. App'x at 603; Mills , 221 F.3d at 1203-04. It is apparent that Petitioner was not able to file a § 2255 habeas petition while he was in federal custody due to his direct appeal pending before the Eleventh Circuit. It is also clear that a § 2255 petition would not be appropriate now, as Petitioner is no longer in custody. Petitioner, however, was able to file a direct appeal following his conviction, and Petitioner has failed to offer any reason for not including Grounds two through four in his direct appeal. These issues were all grounds that could have and should have been raised on Petitioner's direct appeal.
Petitioner previously filed a § 2255 federal habeas petition on June 24, 2015. Doc. 117. Petitioner's habeas petition was dismissed because Petitioner was not "in custody" at time he filed his petition. Doc. 124; Doc. 126. --------
It is also clear that Petitioner has failed to establish that the alleged fundamental errors made the proceedings irregular and invalid. Petitioner's grounds two through four set forth allegations of prejudicial misconduct and alleged technical violations in his trial, actions that have been held not to be fundamental errors. Doc. 128, pp. 16-19; Mills , 221 F.3d at 1203 (holding that fundamental errors do not include "prejudicial misconduct in the course of the trial, the misbehavior or partiality of jurors, and newly discovered evidence."). Accordingly, these claims must be denied.
CONCLUSION
Based on the evidence presented during the evidentiary hearing, Petitioner has failed to establish a claim of ineffective assistance of counsel. The hearing testimony supports a finding that Petitioner was informed of his right to testify during his trial and that Petitioner's counsel never prohibited Petitioner from testifying. Even if Petitioner's counsel had prevented Petitioner from testifying at trial, Petitioner has failed to establish, with reasonable probability, that his trial outcome would have been different had he testified. Petitioner's claim for ineffective assistance of counsel should therefore be denied. Petitioner's several other claims should also be denied. Accordingly, IT IS RECOMMENDED that Petitioner's Motion for Writ of Error Coram Nobis be DENIED.
Under Rule 11 of the Rules Governing Section 2255 Proceedings for the United States District Courts, "[t]he district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." A certificate of appealability may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." It does not appear that Petitioner has made a 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) (explaining how to satisfy this showing) (citation omitted). Accordingly, IT IS FURTHER RECOMMENDED that the Court DENY a certificate of appealability in its final order.
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 of those portions of the Recommendation to which objection is made. All other portions of the Recommendation may be reviewed for clear error.
The parties are further 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."
SO RECOMMENDED , this 29th day of August, 2018.
s/ Charles H. Weigle
Charles H. Weigle
United States Magistrate Judge