Opinion
4:20-CR-7-CDL-MSH-1 4:22-CV-184-CDL-MSH
03-03-2023
AUBREY CRITTENDEN, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
REPORT AND RECOMMENDATION
STEPHEN HYLES, UNITED STATES MAGISTRATE JUDGE
Pending before the Court is Defendant Aubrey Crittenden's motion to vacate his sentence under 28 U.S.C. § 2255 (ECF No. 102). For the reasons stated below, it is recommended that Crittenden's motion to vacate be denied.
BACKGROUND
On February 12, 2020, Crittenden was indicted on a single count of possession of a firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Indictment 1, ECF No. 1. At his initial appearance on February 21, 2020, Crittenden was represented by appointed counsel Pete Temesgen. Text-only Minute Entry, ECF No. 11. Following that appearance, Crittenden was detained prior to trial. Text-only Order of Detention, ECF No. 14. On August 7, 2020, Mr. Temesgen filed a motion for leave to withdraw as counsel, “at the specific direction of Mr. Crittenden, and based on [a] breakdown of the attorney-client relationship,” due to Crittenden's repeated requests for a new lawyer and unsubstantiated allegations of unprofessional conduct. Mot. to Withdraw 1-2, ECF No. 34. That motion was denied after a hearing. Text-only Order, Aug. 12, 2020, ECF No. 37.
On November 23, 2020, while represented by Mr. Temesgen, Crittenden filed a motion to suppress (ECF No. 49), which was denied on March 16, 2021, after an evidentiary hearing. Text-only Order, ECF No. 58. Thereafter, on April 13, 2021, Crittenden filed a pro se motion to disqualify Mr. Temesgen as his counsel (ECF No. 61). The Court held a hearing on April 16, 2021, and excused Mr. Temesgen from further representation. Text-only Minute Entry, ECF No. 63. Michael Simpkins of the Federal Defenders' Office was then appointed as Crittenden's attorney. Order Appointing Counsel, ECF No. 64. Crittenden's trial was scheduled to begin on September 13, 2021. Text-only Minute Entry, ECF No. 71. On September 2, 2021, however, Crittenden waived indictment (ECF No. 80) and pled guilty to a Superseding Information (ECF No. 81) charging him with one count of Witness Tampering in violation of 18 U.S.C. § 1512(b)(1). His plea was entered pursuant to a plea agreement (ECF No. 82) and with the advice and counsel of attorney Michael Simpkins.
On September 10, 2021, Mr. Simpkins filed an ex parte motion to withdraw as counsel, citing a newly discovered potential conflict of interest within the Federal Defenders' Office.Mot. to Withdraw 1-2, ECF No. 84). The motion was granted (ECF No. 85), and attorney Larae Moore was appointed to represent Crittenden on September 15, 2021 (ECF No. 86). On November 23, 2021, Crittenden attempted to file a pro se motion to withdraw his guilty plea, which the Court rejected because he was a represented party. Defendant then filed a counseled motion through Ms. Moore on December 2, 2021 (ECF No. 90). On December 10, 2021, Crittenden moved to disqualify Ms. Moore as counsel and for permission to proceed pro se (ECF No. 96).
Mr. Simpkins' motion to withdraw as Crittenden's attorney (ECF No. 84) was filed under seal; therefore, Respondent did not have access to the motion and subsequent order (ECF No. 86) granting the motion when they filed their response (ECF No. 104).
During Crittenden's sentencing hearing on December 14, 2021, his motion to withdraw his guilty plea and his motion to disqualify his counsel were withdrawn through his attorney. Resp. to Mot. to Vacate Ex. A, at 3-5, ECF No. 104-1. He was sentenced to 56 months' imprisonment, and judgment was entered on December 16, 2021. Judgment, ECF No. 99. Thereafter, Crittenden did not file a notice of appeal. He timely filed this § 2255 motion on November 28, 2022 (ECF No. 102). The Government responded on January 24, 2023 (ECF No. 104), and Crittenden replied on February 14, 2023 (ECF No. 105). Crittenden's motion is ripe for review.
DISCUSSION
I. Motion to Vacate
Crittenden raises a single ground for relief in his motion to vacate. He argues he received ineffective assistance of counsel because there “was a conflict between [him] and attorney that works in the same firm.” Mot. to Vacate 4, ECF No. 102. Respondent argues Crittenden's motion should be denied because he has failed to show ineffective assistance of counsel. Resp. to Mot. to Vacate 3-6, ECF No. 104. The Court agrees and recommends that Crittenden's motion to vacate be denied.
A. Ineffective Assistance of Counsel
Crittenden's entire motion to vacate consists of a vague assertion that his counsel was ineffective due to “a conflict between [him] and attorney that works in the same firm.” Mot. to Vacate 4. Further, in his reply to the Government's response, Crittenden claims for the first time that his counsel “fail[ed] to seek indictment” and “didn't discover exculpatory evidence[;]” therefore, “there is a strong likelihood” counsel would have changed his recommendation for Crittenden to plead guilty. Def.'s Reply 1, ECF No. 105. As explained below, Crittenden fails to show ineffective assistance of counsel, and his motion to vacate should be dismissed.
1. Standard
“A court considering a claim of ineffective assistance must apply a ‘strong presumption' that counsel's representation was within the ‘wide range' of reasonable professional assistance.” Harrington v. Richter, 562 U.S. 86, 104 (2011) (quoting Strickland v. Washington, 466 U.S. 668, 689 (1984)). A petitioner's burden when bringing an ineffective assistance claim “is not insurmountable” but “is a heavy one.” Chandler v. United States, 218 F.3d 1305, 1314 (11th Cir. 2000). To prevail on a claim of ineffective assistance of counsel, a petitioner must establish, by a preponderance of the evidence, that his attorney's performance was deficient and that he was prejudiced by the inadequate performance. Id. at 1312-13; Strickland, 466 U.S. at 687.
To establish deficient performance, a petitioner must prove their counsel's performance “was unreasonable under prevailing professional norms and that the challenged action was not sound strategy.” Kimmelman v. Morrison, 477 U.S. 365, 384 (1986). To show that counsel's performance was unreasonable, a petitioner must establish that no competent counsel would have taken the action in question. Van Poyck v. Fla. Dep't of Corr., 290 F.3d 1318, 1322 (11th Cir. 2002) (per curiam). There is a strong presumption that the challenged action constituted sound trial strategy. Chateloin v. Singletary, 89 F.3d 749, 752 (11th Cir. 1996).
To satisfy the prejudice prong, a petitioner must show there is a reasonable probability that, but for counsel's inadequate representation, “the result of the proceeding would have been different.” Meeks v. Moore, 216 F.3d 951, 960 (11th Cir. 2000) (quoting Strickland, 466 U.S. at 694). “In the context of a guilty plea, a petitioner must demonstrate that ‘there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.'” Martin v. United States, 949 F.3d 662, 667 (11th Cir. 2020) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)). Further, a petitioner must also “convince the court that a decision to reject the plea bargain would have been rational under the circumstances.” Padilla v. Kentucky, 559 U.S. 356, 372 (2010). If a petitioner fails to establish that he was prejudiced by the alleged ineffective assistance, a court need not address the performance prong of the Strickland test. Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000).
2. Conflict of Interest
Crittenden's primary argument is that his plea counsel-Mr. Simpkins-was ineffective due to a conflict of interest. Mot. to Vacate 3. This claim apparently relates to Simpkins' motion to withdraw from Crittenden's case following the plea due to his discovery of a potential conflict of interest within the Federal Defenders' Office. Mot. to Withdraw 1-2. For the following reasons, Crittenden's claim is meritless.
To demonstrate that counsel's conflict of interest amounted to ineffective assistance of counsel, “a defendant must show first, that his attorney had an actual conflict of interest, and second, that the conflict adversely affected counsel's performance.” Pegg v. U.S., 253 F.3d 1274, 1277 (11th Cir. 2001) (emphasis in original). “The possibility of conflict does not rise to the level of a sixth amendment violation.” Stevenson v. Newsome, 774 F.2d 1558, 1561 (citing Cuyler v. Sullivan, 446 U.S. 335, 350 (1980)). The alleged conflict must be “actual, not merely hypothetical or speculative.” McConico v. State of Ala., 919 F.2d 1543, 1546 (11th Cir. 1990) (citations omitted). “[A] § 2255 petitioner must show ‘inconsistent interests and must demonstrate that the attorney made a choice between possible alternative courses of action.'” Pegg, 253 F.3d at 1277 (quoting McConico, 919 F.2d at 1546).
While Crittenden may be able to show that Mr. Simpkins “labored under an actual conflict of interest,” created when he discovered his office might have a conflict, he cannot show that this adversely affected Mr. Simpkins' performance during his plea. Pegg, 253 F.3d at 1277. Mr. Simpkins stated in his motion to withdraw-and Crittenden does not dispute-that the conflict was discovered on September 9, 2021, seven days after Crittenden plead guilty pursuant to a plea agreement reached under the advice of Mr. Simpkins. Mot. to Withdraw 1; ECF Nos. 79-83. By all accounts, Mr. Simpkins did not know about the potential conflict when he represented Crittenden during the plea process; therefore, Crittenden cannot show that Mr. Simpkins' performance was impacted by the conflict. See Hunter v. Sec'y, Dep't of Corrs., 396 F.3d 1196, 1200 (11th Cir. 2005) (“An attorney's performance must be adversely affected by the conflict of interest before there is a constitutional violation.”).
Moreover, Crittenden cannot show he was actually prejudiced by any conflict of interest. “To demonstrate prejudice, a petitioner must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Smith v. White, 815 F.2d 1401, 1406 (citing Strickland, 466 U.S. at 694). Nothing in the record indicates that counsel's potential conflict prejudiced Crittenden, particularly considering that counsel was not aware of the conflict until after the plea was entered. Therefore, Crittenden has failed to “make the required showing of either deficient performance or sufficient prejudice” to support a claim for ineffective assistance of counsel.
3. Advice to Plead Guilty
In his reply, Crittenden contends for the first time that “Mr. Simpkin fail to seek indictment in failing to do so he didn't discover exculpatory evidence there is a strong likelihood Mr. Simpkin would of changed his recommendation as to plead guilty.” Def.'s Reply 1. Crittenden's argument is plainly speculative and lacks merit. First, it cannot be said that Simpkins' performance “falls below the wide range of competence demanded of lawyers in criminal cases.” Osley v. U.S., 751 F.3d 1214, 1222 (11th Cir. 2014).
Second, even if he could demonstrate counsel's performance fell below the reasonable standard, Crittenden has not proven prejudice. As discussed, the prejudice prong clearly requires Crittenden to establish “he would not have pleaded guilty and would have insisted on going to trial.” Martin, 949 F.3d at 667 (emphasis added) (internal quotation marks omitted). Crittenden claims there is a “strong likelihood” that Simpkins would have changed his recommendation had he sought the indictment, he presents no evidence to that effect. “Post-hoc assertions from a defendant about how he would have pleaded but for his attorney's deficiencies are generally insufficient.” Cedeno-Gonzalez v. United States, 757 Fed.Appx. 868, 870 (11th Cir. 2018) (per curiam) (citing Lee v. United States, -- U.S. --,137 S.Ct. 1958, 1967 (2017)). “Instead, contemporaneous evidence should be given the most weight. When a defendant pleads guilty, his declarations under oath carry a strong presumption of truth.” Id. (internal citation omitted). Thus, Crittenden has not demonstrated that, as a result of any deficient advice by trial counsel, he would have not pleaded guilty. Therefore, Crittenden has failed to show that he received ineffective assistance of counsel on any grounds.
II. Certificate of Appealability
Rule 11(a) of Rules Governing Section 2255 Cases in the United States District Court provides that “[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 makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). If a court denies a collateral motion on the merits, this standard requires a petitioner to demonstrate that “reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). When a court denies a collateral motion on procedural grounds, this standard requires a petitioner to demonstrate that “jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right, and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Id. at 478. Petitioner cannot meet either of these standards and, therefore, a certificate of appealability in this case should be denied.
CONCLUSION
For the reasons stated above, it is recommended that Crittenden's motion to vacate (ECF No. 102) be DENIED. Additionally, a certificate of appealability should be DENIED. 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 hereof. 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 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.”
SO RECOMMENDED.