From Casetext: Smarter Legal Research

Berg v. United States

United States District Court, Middle District of Georgia
Sep 29, 2021
Criminal 3:19-cr-00001-CAR-CHW-1 (M.D. Ga. Sep. 29, 2021)

Opinion

Criminal 3:19-cr-00001-CAR-CHW-1 Civil 3:21-cv-00010-CAR

09-29-2021

AMY BERG, Movant, v. UNITED STATES OF AMERICA, Respondent.


REPORT AND RECOMMENDATION

Charles H. Weigle United States Magistrate Judge

Before the Court is a motion to vacate, set aside or correct sentence filed by Amy Berg pursuant to 28 U.S.C. § 2255. (Docs. 139). For the reasons discussed below, it is RECOMMENDED that the motion be DENIED.

BACKGROUND

Beginning in January 2018, the United States Postal Inspection Service obtained warrants to search a series of packages mailed by Movant, which packages contained scheduled drug substances, and specifically, heroine and d-methamphetamine hydrochloride or “ICE.” (Plea Agreement, Doc. 76, pp. 9-10). In September 2018, officers obtained a warrant to search Movant's home, where more ICE and heroin were found along with other scheduled substances, including Diazepam, Clonazepam, Alprazolam, marijuana, cannabidiol, and methamphetamine, as well as firearms. (Id., p. 10).

In January 2019, Movant (along with a codefendant) was indicted on four counts: possession of methamphetamine with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and § 841(b)(1)(B)(viii); conspiracy to possess methamphetamine with intent to distribute in violation of 21 U.S.C. § 846 i/c/w 21 U.S.C. § 841(a)(1) and § 841(b)(1)(B)(viii); possession of heroin with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and § 841(b)(1)(C); and maintenance of a drug premises in violation of 21 U.S.C. § 856(a)(1) and (b). (Doc. 1).

Subsequently, in March 2019, a superseding indictment charged Movant (along with, again, a codefendant) with fifteen counts of drug-related activity, including both the charges previously advanced along with the following new charges: three additional counts of possession of methamphetamine with intent to distribute; one count of possession of marijuana in violation of 21 U.S.C. § 844(a); one count of possession of oxycodone in violation of 21 U.S.C. § 844(a); one count of possession of diazepam in violation of 21 U.S.C. § 844(a); one count of possession of clonazepam in violation of 21 U.S.C. § 844(a); one count of possession of heroin in violation of 21 U.S.C. § 844(a); one count of possession of Alprazolam in violation of 21 U.S.C. § 844(a); one count of possession of cannabidiol in violation of 21 U.S.C. § 844(a); and one count of possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A). (Doc. 42).

In September 2019, Movant entered a plea of guilty to one count of possession of methamphetamine with intent to distribute pursuant to a written plea agreement that included an appeal waiver. (Doc. 76, p. 4; Doc. 120, p. 16). Based upon Movant's plea, the Government agreed to dismiss the fourteen remaining courts against Movant. (Doc. 76, p. 6). Movant's plea agreement expressly provided that the charge to which Movant pleaded guilty would expose movant to a maximum sentence of twenty years or 240 months' imprisonment. (Doc. 76, p. 2). In January 2020, the Court sentenced Movant to serve a term of 210 months of imprisonment. (Doc. 109).

Thereafter, Movant attempted to appeal, but the Government successfully invoked Movant's appeal waiver, and the Eleventh Circuit Court of Appeals dismissed Movant's case. (Doc. 129). Movant commenced Section 2255 proceedings in this Court in February 2021.

LEGAL STANDARDS

Section 2255 is not a substitute for appeal, Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004), and hence, claims not raised on appeal generally are procedurally defaulted, meaning they “may not be raised on collateral review unless the petitioner shows cause and prejudice.” Massaro v. United States, 538 U.S. 500, 504 (2003). Excepted from this default rule are claims of ineffective assistance of counsel, which are adjudged under the standard set by the Supreme Court's decision in Strickland v. Washington, 466 U.S. 668 (1984).

To obtain relief under Strickland, a Section 2255 movant must demonstrate both (1) deficient performance, meaning “that counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment, ” and (2) prejudice, meaning “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 687, 694.

EVIDENTIARY HEARING

No evidentiary hearing is needed to resolve Movant's Section 2255 motion. Movant makes no allegations that, if proved true, would entitle him to relief. Rather, for reasons discussed below, “the files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. §2255(b). See also Rosin v. United States, 786 F.3d 873, 877-78 (11th Cir. 2015) (“an evidentiary hearing is unnecessary when the petitioner's allegations are ‘affirmatively contradicted by the record'”).

ANALYSIS

Movant primarily argues that her defense counsel was ineffective for failing to advise Movant of the risk of sentencing exposure accompanying Movant's decision to plead guilty. Specifically, Movant contends that counsel “did not discuss the [plea agreement] in detail with Movant, ” that counsel “did not know what the sentencing exposure was … because he never did an investigation into the law[] and facts of the case, ” and that counsel unhelpfully informed Movant that “she would only get a ‘little bit of time.'” (Doc. 139-1, pp. 6-8).

At the least, Movant's primary claim of ineffectiveness fails on Strickland's prejudice prong based upon the transcribed colloquy at Movant's change-of-plea hearing. In relevant part, that colloquy reads as follows:

The Court: Outline the penalties.
Ms. Easterling: Your Honor, on possession of methamphetamine with intent to distribute, Ms. Berg faces a maximum sentence of 20 years in prison and/or a maximum fine of $1,000,000, three years of supervised release and a $100 mandatory assessment fee.
The Court: Do you understand what she just said?
The Defendant: Yes, sir.
The Court: Do you understand those to be the possible consequences of your plea?
The Defendant: Yes, sir.
The Court: Do you have any questions about the possible sentence?
The Defendant: No, sir.
The Court: Now, there are sentencing guidelines, advisory sentencing guidelines that will apply in your case. Have you and your attorney talked about how the sentencing guidelines might apply in your case?
The Defendant: Yes, sir.
The Court: Do you understand that the Court will not be able to determine the advisory guideline sentence for your case until after the presentence report has been completed?
The Defendant: Yes, sir.
The Court: Do you understand that based upon the Court's findings of fact the sentence imposed may be different from any estimate your attorney may have given you?
The Defendant: Yes, sir.
The Court: Do you understand, therefore, that you should not plead guilty based on any estimate anyone has given you about the sentencing guideline range that might apply to you?
The Defendant: Yes, sir.
(Doc. 120, pp. 14-15)

The record thus clearly establishes that prior to her entry of a guilty plea, Movant understood based upon her plea colloquy that she was potentially subject to a sentence of up to 240 months' imprisonment (Movant actually received a sentence of 210 months' imprisonment). The same information was also made apparent to Movant in her signed plea agreement, on a page that Movant initialed. (Doc. 76, p. 2). Additionally, Movant testified during her plea colloquy that she understood the terms of her plea. (Doc. 120, p. 12). See Winthrop-Redin v. United States, 767 F.3d 1210, 1217 (11th Cir. 2014) (“solemn declarations in open court carry a strong presumption of verity”). Even if counsel had performed deficiently, therefore, no prejudice ensued because both the Government and the Court “explained to her the maximum penalties and that the sentence imposed could be different from any estimate given to her by her lawyer or anyone else.” Cruz v. United States, 188 Fed.Appx. 908, 914 (11th Cir. 2006). Accordingly, Movant's primary argument fails on Strickland's prejudice prong.

In addition to her primary argument, Movant may also have intended to raise the following separate claims of ineffective assistance of counsel: (i) that counsel failed to conduct an adequate evidentiary investigation; (ii) that counsel failed to review the evidence with Movant; and (iii) that counsel failed to review the plea agreement with Movant. It is possible that Movant may have intended these arguments merely to buttress her primary claim of ineffective assistance of counsel-that counsel allegedly failed to understand and inform Movant as to the magnitude of her sentencing exposure upon the entry of her guilty plea-but the arguments are nevertheless separately assessed herein in an abundance of caution.

Regarding the first two claims, Movant would have faced, at trial, evidence in the form of testimony from investigatory officers who both (a) opened with warrants packages containing drugs, and bearing Movant's name and return address, and (b) entered, with a warrant, Movant's home and found multiple scheduled substances, along with firearms. Even if the Court accepts Movant's bare allegations of deficient investigation of the evidentiary as true, Movant cannot show, given the weight of evidence against her, that she “would not have pleaded guilty and would have insisted on going to trial” had counsel performed differently. Hill v. Lockhart, 474 U.S. 52, 59 (1985). Accordingly, these two claims of ineffective assistance fail on Strickland's prejudice prong.

Last, Movant's claim that counsel failed to review the plea agreement with her is rebutted by the record. Again, Movant testified in open court, and under solemn oath, that she had read and understood the terms of her plea agreement, that she had had the opportunity to discuss the plea agreement with counsel, and that she was satisfied with counsel's efforts. (Doc. 120, pp. 11-12). As discussed above, Movant cannot show that she would not have pleaded guilty had counsel performed differently, and therefore, Movant cannot satisfy Strickland's prejudice prong. As to this claim, Movant also fails to satisfy Strickland's performance prong. As noted above, the Court is entitled to rely on Movant's sworn testimony at her plea colloquy that she understood her plea agreement, and that she was satisfied with counsel's efforts to explain it. See Winthrop-Redin v. United States, 767 F.3d 1210, 1217 (11th Cir. 2014). Accordingly, Movant's fourth and final claim of ineffective assistance of counsel fails on both of Strickland's prongs.

CONCLUSION

For the reasons discussed herein, it is RECOMMENDED that Movant's motion to vacate, set aside or correct sentence (Doc. 139) filed pursuant to 28 U.S.C. § 2255 be DENIED. Additionally, pursuant to the requirements of Rule 11 of the Rules Governing Section 2255 Cases, it does not appear that Movant has made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2); see also Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). Therefore, it is also 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 will 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


Summaries of

Berg v. United States

United States District Court, Middle District of Georgia
Sep 29, 2021
Criminal 3:19-cr-00001-CAR-CHW-1 (M.D. Ga. Sep. 29, 2021)
Case details for

Berg v. United States

Case Details

Full title:AMY BERG, Movant, v. UNITED STATES OF AMERICA, Respondent.

Court:United States District Court, Middle District of Georgia

Date published: Sep 29, 2021

Citations

Criminal 3:19-cr-00001-CAR-CHW-1 (M.D. Ga. Sep. 29, 2021)