Opinion
4:19-CR-33-CDL-MSH-1 4:21-CV-131-CDL-MSH
12-16-2021
JONATHAN O. DUNLAP, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
REPORT AND RECOMMENDATION
STEPHEN HYLES UNITED STATES MAGISTRATE JUDGE.
Pending before the Court is Petitioner's motion to vacate his sentence under 28 U.S.C. § 2255 (ECF No. 69). For the reasons explained below, it is recommended that Petitioner's motion be denied.
BACKGROUND
On August 15, 2019, a federal grand jury returned an indictment against Petitioner, charging him with the following two counts: (1) possession of cocaine with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C), and (2) influencing federal officials by threats in violation 18 U.S.C. § 115(a)(2). Indictment 1-2, ECF No. 3. Petitioner was arrested on September 5, 2019. Arrest Warrant 1, ECF No. 11. Petitioner appeared for an initial appearance that same day, and through counsel pled not guilty. Text-only Minute Entry, ECF No. 15; Plea Sheet 1, ECF No. 14. On September 11, 2019, the Government filed a superseding indictment charging Petitioner with an additional count of distribution of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(viii). Superseding Indictment 2, ECF No. 18. On September 17, 2019, Petitioner appeared for an initial appearance wherein he pled not guilty to this additional charge. Text-only Minute Entry, ECF No. 23; Plea Sheet 1, ECF No. 21.
On December 4, 2019, Petitioner pled guilty to counts one and two, however, count three was dismissed. Plea Sheet 1, ECF No. 31. In doing so, Petitioner agreed that the Government could prove that on July 24, 2019, he possessed “approximately 3.06 grams of cocaine hydrochloride” which “he intended to distribute[.]” Plea Agreement 9, ECF No. 30; Plea Tr. 18. Agents took Petitioner to the Harris County Jail where he admitted in a statement to selling controlled substances occasionally. Plea Agreement 9; Plea Tr. 18. On August 4, 2019, while still at Harris County Jail, Petitioner placed a phone call wherein he “made several threatening statements that alluded to” an agent that had previously interviewed him. Plea Agreement 10; Plea Tr. 18-19. Petitioner placed another call later in which he confirmed the agent's home address. Plea Agreement 10; Plea Tr. 19. These calls were monitored, as Petitioner had been informed. Plea Agreement 9; Plea Tr. 18.
Following Petitioner's guilty plea, the United States Probation Office (“USPO”) prepared a pre-sentence report (“PSR”) (ECF No. 49) using the United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”). In calculating the offense level, the USPO assigned a base level offense of twelve for each count, however, count two received an adjusted offense level of twenty-four due to specific offense characteristics and victim impact. 2d Revised Final PSR ¶¶ 27-38, ECF No. 49. As count two had the higher offense level, it was used to determine the total offense level. Id. ¶ 40. Petitioner received an enhancement as a career offender based on his felony convictions involving controlled substances, resulting in an adjusted offense level of thirty-two. Id. ¶ 43. After a three-level reduction for acceptance of responsibility and entering the plea in a timely manner, the final total offense level was twenty-nine. Id. ¶¶ 44-46. With a criminal history category of VI, the USPO determined that Petitioner's Guidelines imprisonment range was 151 to 188 months. Id. ¶ 82.
Petitioner had previously objected to this career offender enhancement, arguing the two convictions resulted from a single investigation without an intervening arrest and, therefore, should be considered as a single sentence. Def.'s Objs. to PSR 2, ECF No. 44. The USPO, however, disagreed because Petitioner was charged and sentenced separately. 2d Revised Final PSR Addendum 2, ECF No. 49-1.
On July 31, 2020, Petitioner's trial counsel filed objections (ECF Nos. 44, 50) to the PSR. He contended the enhancement based on his intent to carry out a threat was improper because the plea agreement's facts did not demonstrate such a threat. Def.'s 1st Objs. to PSR 1, ECF No. 50. He further objected to the victim related enhancement, arguing the elements of U.S.S.G. § 3A1.2(b) had not been met. Id. Additionally, he reasserted his objection to the career offender enhancement due to previous controlled substance convictions, contending the sentences should be considered together. Sent'g Tr. 5-9, ECF No. 65.
On August 3, 2020, the Court conducted a sentencing hearing and considered Petitioner's objections. The Court overruled the objection related to the career offender enhancement, concluding the USPO was correct in finding the sentences separate. Id. at 12-13. It also overruled the objections to the specific characteristic and related victim enhancements, finding not only that the elements had been met that Petitioner intended to carry out a threat against a law enforcement officer, but also that the objections were moot in light of Petitioner's status as a career offender. Id. at 13-16. The Court then sentenced Petitioner to (1) 151 months imprisonment, three years supervised release, and a $100 mandatory assessment on count one, and (2) 72 months imprisonment, to be served concurrently, three years supervised release, to be served concurrently, and a $100 mandatory assessment on count two. Judgment 2-7; Sent'g Tr. 20-21.
On August 17, 2020, Petitioner filed a notice of appeal, indicating he had appealed his convictions and sentences to the United States Court of Appeals for the Eleventh Circuit. Notice of Appeal 1, ECF No. 92. On appeal, the Eleventh Circuit affirmed Petitioner's convictions and sentences due to his appeal waiver. 11th Cir. Op. 1-2, ECF No. 67. On August 4, 2021, the Court received Petitioner's motion to vacate his sentence pursuant to 28 U.S.C. § 2255 (ECF No. 69). The same day, the Court ordered Respondent to respond to Petitioner's motion within sixty days. Order 1, ECF No. 70. With leave from the Court, Respondent filed an out of time response on October 15, 2021 (ECF No. 73). See Text-only Order, Oct. 6, 2021, ECF No. 72. Petitioner did not reply and his motion to vacate is ripe for review.
DISCUSSION
I. Motion to Vacate
Petitioner raises two grounds for relief in his motion to vacate: (1) ineffective assistance of trial counsel, and (2) sentencing error. Mot. to Vacate 6-19, ECF No. 69. Respondent argues Petitioner's motion should be denied on all grounds. Resp. to Mot. to Vacate 5-14, ECF No. 73. The Court agrees and recommends that Petitioner's motion to vacate be denied.
A. Ineffective Assistance of Counsel
Petitioner argues trial counsel wrongfully advised him to plead guilty to an unfavorable plea agreement, rendering his plea involuntary. Mot. to Vacate 6-13. He contends he would not have pled guilty to the negotiated plea agreement but for trial counsel's advice. Id. As stated below, Petitioner fails to show ineffective assistance of trial counsel.
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. Strickland, 466 U.S. at 687; Chandler, 218 F.3d at 1312-13.
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)). 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). A petitioner's burden when bringing an ineffective assistance claim “is not insurmountable” but “is a heavy one.” Chandler, 218 F.3d at 1314.
2. Advice to Plead Guilty
Petitioner argues trial counsel performed deficiently by advising him to accept an unfavorable plea agreement “in which [he] gave up significant rights without receiving sufficient corresponding benefits.” Mot. to Vacate 10. He contends he suffered prejudice because “had he not followed the advice of counsel, he would have entered a guilty plea without a plea agreement, or alternatively, he would have insisted on his right to trial, thereby preserving the rights.” Id. Contrary to his assertion, Petitioner received favorable benefits through his negotiated plea agreement. These consisted of the dismissal of count three of the indictment, the Government agreeing to move for a sentence reduction if Petitioner assisted in investigating or prosecuting other defendants, and his receiving a sentence reduction for his acceptance of responsibility. Judgment 1; Plea Agreement 4; 2d Revised Final PSR ¶ 44. Petitioner argues that such benefits are “not sufficient consideration” warranting his waivers of rights. Mot. to Vacate 8-10. He overlooks the fact that he is not entitled to a beneficial plea agreement. See Weatherford v. Bursey, 429 U.S. 545, 560-61 (1997); United States v. Palmer, 809 F.2d 1504, 1508 (11th Cir. 1987). Thus, Petitioner has not shown trial counsel's advice was deficient.
Even if he could demonstrate counsel's performance fell below the reasonable standard, Petitioner has not proven prejudice. First, the Court could deny Petitioner's claim solely on his admittance that “had he not followed the advice of counsel, he would have entered a guilty plea without a plea agreement[.]” Mot. to Vacate 10. The prejudice prong clearly requires Petitioner 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). Though Petitioner also argues he may have proceeded to trial, this is not sufficient to meet the Strickland standard of prejudice-that there is a reasonable probability that the result of the proceeding would have been different but for trial counsel's deficient performance.
Nevertheless, whether he proceeded to trial or entered into a non-negotiated plea agreement, Petitioner would have been subject to count three of the superseding indictment. This would have exposed him to a maximum sentence of forty years imprisonment. 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(viii). This is a far harsher sentence than Petitioner received as a direct result of the negotiated plea agreement.
Further, Petitioner's claim that he would not have pleaded guilty but for counsel's advice and thus rendering his plea unknowing, is meritless based on his own statements under oath. “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).
Petitioner's statements before the Court demonstrate his understanding and sole decision to plead guilty. At the change of plea hearing, the Court began the plea colloquy by asking Petitioner about his age and educational background. Plea Tr. 4. Petitioner responded that he was twenty-nine years old at the time, had received his GED, and could read and write. Id. The Court also asked Petitioner about his present mental state and responded that he had never been treated for mental illness, he was not under the influence of drugs or alcohol, and he understood what he was doing. Id. at 4-5. In order to ensure that Petitioner understood the charges against him, the Assistant United States Attorney (“AUSA”) read counts one and two from the indictment, which charged Petitioner with (1) possession with the intent to distribute cocaine in violation of 21 U.S.C. §§841(a)(1) and 841(b)(1)(C), and (2) influencing federal officials with threats in violations of 18 U.S.C. § 115(a)(2). Id. at 6. Petitioner stated he understood these charges. Plea Tr. 6-7.
In order to ensure that Petitioner understood what needed to be proven to convict him of his charges, the AUSA read the essential elements of the offenses. Id. at 7. Petitioner confirmed he understood these elements. Id. at 8. The AUSA then informed Petitioner of the statutory sentencing ranges for each offense, which consisted of (1) a maximum term of imprisonment of twenty years, up to a $1,000,000 fine, and supervised release for three years maximum for count one, and (2) a maximum term of imprisonment of six years, up to a $250,000 fine, and three years maximum of supervised release for count two. Id. Petitioner stated that he understood the applicable penalties. Id. In order to ensure that Petitioner understood the consequences of pleading guilty, the Court asked Petitioner if he understood that (1) the Cout could deviate from the sentencing guideline range and impose a sentence different from his attorney's, the AUSA's, or the probation office's estimation, (2) he would not receive parole, (3) he would receive a term of supervised release, and (4) he would be deemed a convicted felon and would face losing some civil rights. Id. at 8-11. The Court also asked Petitioner if he had read the plea agreement and understood it, discussed it and the charges with trial counsel, and whether he was “completely satisfied with the advice and representation” from trial counsel. Id. at 11-12. Petitioner answered each question in the affirmative. Id.
The Court then noted that Petitioner understood the charges against him and asked him how he wished to plead. Id. at 16. Petitioner stated guilty to both counts. Id. Petitioner further confirmed that he had not been threatened, frightened, coerced, forced, or promised anything in order to plead guilty, and that he was pleading guilty because he was in fact guilty. Id. at 16-17. The Court ensured there as an adequate factual basis for Petitioner's guilty plea by having the AUSA read the stipulation of facts in Petitioner's plea agreement, which Petitioner agreed were true. Id. at 17-19. The Court therefore found Petitioner's guilty plea to be knowing and voluntary and accepted it. Id. at 20.
Based on Petitioner's education level, his review of the charges in the indictment and plea agreement, the AUSA's explanation of the charges, elements, and applicable penalties, his assurance that he was satisfied with trial counsel's advice and representation during the plea colloquy, and the Court's questioning thereabout, it is clear that Petitioner understood the nature, elements, and penalties of the charges against him, as well as the waivers in the plea agreement, and voluntarily pled guilty. Thus, Petitioner has not demonstrated that as a result of any deficient advice by trial counsel, his plea was unknowing or involuntary or that he would have not pleaded guilty.
This analysis also foregoes any independent claim that Petitioner's guilty plea was unknowing and involuntary. See Winthrop-Redin v. United States, 767 F.3d 1210, 1216 (11th Cir. 2014) (In evaluating a petitioner's guilty plea, “the representations of the defendant, his lawyer, and the prosecutor at a plea hearing, as well as any findings made by the judge accepting the plea, constitute a formidable barrier in any subsequent collateral proceedings.” (internal quotation marks omitted)); Blackledge v. Allison, 431 U.S. 63, 74 (1977) (“The subsequent presentation of conclusory allegations unsupported by specifics is subject to summary dismissal, as are contentions that in the face of the record are wholly incredible.”).
B. Sentencing Challenge
Petitioner challenges his sentence, arguing the Court failed to address each factor under 18 U.S.C. § 3553(a). Mot. to Vacate 16. Specifically, Petitioner contends that the Court not only was required to consider every factor under § 3553(a), but that the Court's consideration of Petitioner's criminal history was unreasonable. Id. at 16-19. Petitioner's claim, however, is barred by his collateral attack waiver pursuant to his plea agreement. See United States v. Buckner, 808 Fed.Appx. 755, 764 n.14 (finding the petitioner's “challenge to his career-offender classification does not present a constitutional issue concerning the underlying statute, and, therefore, it can be barred by a valid and enforceable sentence-appeal waiver.” (citing United States v. Frye, 402 F.3d 1123, 1129 (11th Cir. 2005)). As such, this claim should be denied.
II. Certificate of Appealability
Rule 11(a) of Rules Governing Section 2255 Cases in the United States District Courts 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 foregoing reasons, it is recommended that Petitioner's motion to vacate sentence (ECF No. 69) under 28 U.S.C. § 2255 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.