Opinion
CRIMINAL ACTION 1:16-CR-401-MHC-CMS-1 CIVIL ACTION 1:22-CV-310-MHC-CMS
07-30-2024
SHUSTA TRAVERSE GUMBS, Movant, v. UNITED STATES OF AMERICA, Respondent.
FINAL REPORT AND RECOMMENDATION
CATHERINE M. SALINAS UNITED STATES MAGISTRATE JUDGE
Movant, Shusta Traverse Gumbs, submitted a counseled Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (“Motion to Vacate”). [Doc. 230]. In the Motion to Vacate, Gumbs argues that “[t]rial counsel was ineffective for failing to present an affirmative defense of insanity pursuant to 18 U.S.C. § 17.” [Id. at 5]. The Government filed a response, and Gumbs filed a reply. [Docs. 236, 241].
For the reasons stated below, I conclude that Gumbs has not met his heavy burden under Strickland v. Washington, 466 U.S. 668 (1984) to establish that his attorney acted unreasonably in forgoing the insanity defense, nor that he was prejudiced by his counsel's alleged deficiencies. Accordingly, I will recommend that the Motion to Vacate be denied.
I. BACKGROUND
On November 15, 2016, a federal grand jury returned a two-count indictment against Gumbs, charging him in Count One with “using a deadly and dangerous weapon, that is, a motor vehicle,” to assault and interfere with two federal officers, Deputy United States Marshals F.L. and J.S., and in so doing, inflicting bodily injury on Deputy United States Marshal F.L., in violation of 18 U.S.C. § 111(a)(1) and (b). [Doc. 1, Indictment]. Count Two alleged the same facts as to five other Deputy United States Marshals, but without the allegation of an infliction of bodily injury. [Id.]. On January 12, 2017, Attorney Kendal Silas of the Federal Defender Program was appointed to represent Gumbs. [Doc. 12]. Three months later, on April 18, 2017, a superseding indictment was returned that contained the same charges as the previous indictment but listed only a single injured Deputy United States Marshal in Count One and listed six uninjured Deputy United States Marshals in Count Two. [Doc. 28, Superseding Indictment].
While in pretrial custody, Gumbs made the following statements during a recorded phone call with his mother:
Let me tell you something, woman. Woman, let me tell you something[.] If I had let them police arrest me right there in that car, I would have been going to jail for life. It's a good thing I knock that police down and get that aggravated assault charge. You hear what I tell you? I feel a lot better carrying the charge of hitting that police with
that car than to, than to, than to be carrying the charge of what that police would have catch me with in that car, because Anya send them people on me. So little do you know, little do you know me catching them charges, yes, that was the best thing for me to do. Because if I had sit down there in that car and let them people draw me out of that car, and find out what was in that car, I would have been going to jail for life because of your daughter.[Doc. 115-1].
This evidence was excluded at trial [Doc. 136 at 6], but it was considered at sentencing.
In June 2017, Mr. Silas retained Dr. Sanjay Shah, a licensed psychologist, to evaluate Gumbs, to “assess [Gumbs's] mental state at the time of offense as well as diminished capacity” and to determine if Gumbs “suffers from any mental disorders, disease or defects, and to render any recommendations for disposition/treatment.” [Doc. 231-1 at 1]. On July 12, 2017, Dr. Shah evaluated Gumbs for seven hours; he also interviewed Gumbs's mother and ex-girlfriend. [Id.]. Thereafter, Dr. Shah produced a written report dated August 16, 2017, in which he recited that Gumbs had suffered traumatic events when he was shot during a robbery attempt in 2006, was shot in his leg while incarcerated in 2001, and witnessed a friend being shot and killed. [Id. at 4-5]. Dr. Shah concluded that because of these traumatic events, Gumbs experienced symptoms consistent with posttraumatic stress disorder (“PTSD”) and cannabis use disorder. [Id. at 13]. As explained in detail below, the report also contained Dr. Shah's findings about the two potential defenses at issue in the instant Motion to Vacate: insanity and diminished capacity.
In the section of the report titled “Analysis Regarding Mental State at the Time of the Offense,” Dr. Shah addressed factors relevant to the insanity defense, stating:
The insanity defense, pursuant to 18 U.S.C. § 17 states that “at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts.”
While Mr. Gumbs' psychiatric symptoms appeared to be exerting a significant influence on his behavior at the time of the alleged offense, it appears that he had the capacity to appreciate the nature and quality or the wrongfulness of his acts. Mr. Gumbs relayed that he had general knowledge that hitting a police officer with his car was wrong. He further indicated that “trying to run anybody over, whether police or civilian, even a dog” would be wrong. Although, he stated that he did not know he was being confronted by officers and did not know that he hit an officer, there is no indication that he lacked awareness that hitting an officer would be morally wrong. Furthermore, during the course of the conversation with his mother shortly after the offense, Mr. Gumbs reported that he would need a lawyer if he were to turn himself into authorities. In addition, prior to being arrested, he indicated that he debated on whether to turn himself in. This suggests an understanding that hitting an officer with his car would be legally wrong. Finally, Field Reports indicate that Mr. Gumbs drove away after allegedly hitting the officer. The act of leaving the scene where an offense occurs possibly indicates knowledge of wrongfulness. Although Mr. Gumbs
reported that he did not recall hitting an officer, he appears to have had the ability to know at the time of the offense that the crime with which he is charged would be wrong.[Id. at 16].
Later in the report, in the section titled “Analysis Regarding Diminished Capacity,” Dr. Shah addressed factors relevant to a potential diminished capacity defense. [Id. at 16-17]. The report states:
The Eleventh Circuit in United States v. Ettinger states that 18 U.S.C. § 111 does not explicitly contain “intend to” wording and is a general intent statute. If the offense of assaulting a federal officer did require specific intent, Mr. Gumbs account of his mental functioning at the time of the offense suggests that he lacked the intent to hit an officer. He reported observing a “bunch of guns in my face,” and he was thinking, “Please don't kill me, please don't kill me.” He stated that he felt as though he might die and that he could not “register” anything at the time. He stated that he did not recall hitting an officer. Mr. Gumbs reported subsequently calling his mother. Both Mr. Gumbs and his mother gave a similar account of that conversation. His mother relayed to him that it had been reported he hit an officer with his car. Both stated that Mr. Gumbs denied doing so during that conversation. Mr. Gumbs reported that his mother told him to turn himself in since he believed he did not hit an officer.
However, there is some indication that Mr. Gumbs was aware that law enforcement surrounded him. The Incident Report notes several seemingly obvious indications of the presence of law enforcement such as marked cars and uniforms. In addition, during the conversation with his mother, Mr. Gumbs blamed his sister for the incident. During the current evaluation, Mr. Gumbs reported that his sister threatened to call the U.S. Marshals days prior to the incident. Therefore, blaming his sister suggests awareness that [U.S.] Marshals were encountering him.
Regardless of whether Mr. Gumbs was aware he was surrounded by law enforcement, it is possible that Mr. Gumbs experienced a dissociative response (i.e., defensive alternation in awareness developed as an avoidance response to overwhelming and often traumatic psychological distress) when fleeing the area. As noted above, Mr. Gumbs experiences minor dissociative responses when, for instance, he hears a loud noise such as an inmate popping a carton. In addition, Ms. Delsol and Ms. Joseph provided examples (e.g., hearing gunshots, seeing a home intruder, and seeing his son's bloody nose) in which Mr. Gumbs was seemingly hyperaroused (i.e., heightened anxiety leading to a state of increased psychological and physiological stress). Field Reports state that Mr. Gumbs was “feverishly” looking back and forth to see who was around his vehicle, which suggests possible hyperarousal. If Mr. Gumbs was confronted by what he perceived to be a group of armed men at the time of the offense, it is possible that this triggered a dissociative response and hyperarousal leading him to flee the scene. Dissociative re-experiencing involves feeling as though characteristics of past threatening situations are experienced in the present. For Mr. Gumbs, this could have been misperceiving that characteristics of the assault he experienced in 2006 were occurring at the time of the offense. It is possible that Mr. Gumbs' perception of the situation was distorted. Gaps in awareness and memory are also common during such experiences. Regardless of whether Mr. Gumbs knew they were law enforcement, his account of his behavior, corroborated by his mother, is consistent with a dissociative response accompanied by hyperarousal. Therefore, since Mr. Gumbs' intent was likely to flee the area for his own safety, it is unlikely that he intended to hurt Officer Lemka or put him in reasonable fear of his safety.[Doc. 231-1 at 16-17].
On August 24, 2017, four days before the trial would begin, Mr. Silas filed a “Notice of Intent to Introduce Expert Testimony Regarding Diminished Capacity and for Continuance of Trial.” [Doc. 80]. In that filing, Mr. Silas stated that Dr. Shah had diagnosed Gumbs with PTSD and had opined that at the time of the incident “Gumbs likely had a dissociative response and was hyperaroused based upon past traumatic events” and did not intend to harm the officer identified in Count One of the superseding indictment. [Id. at 2]. Mr. Silas went on to explain that the defense sought to introduce Dr. Shah's testimony “as evidence of diminished capacity.” [Id.]. The filing acknowledged that in United States v. Ettinger, 344 F.3d 1149 (11th Cir. 2003), the Eleventh Circuit held that assault upon a federal officer is a general intent crime, rather than a specific intent crime, and that a diminished capacity defense is not available for the charge of assault upon a federal officer. [Id.]. Mr. Silas argued that notwithstanding the Ettinger decision, the Court should view the offense charged in Count One as a specific intent crime because the Government would have to prove that Gumbs intended to cause bodily harm to another. [Id.]. Mr. Silas requested a continuance of the trial so that he could secure the presence of Dr. Shah as a witness for trial and so that the Government would have an opportunity to review the report and respond to it. [ Id. at 3-4].
The Court held a pretrial conference that same day, ruling that diminished capacity evidence (including Dr. Shah's testimony) was not admissible and denying the motion for a continuance. The Court gave two reasons: (1) the disclosure of the evidence was late, and (2) even if it were not late, the evidence was inadmissible under Ettinger. [Doc. 81; Doc. 210 at 19-20]. Gumbs proceeded to trial on August 28, 2017, but the trial resulted in a mistrial. [Docs. 89, 97, 99]. A second trial was scheduled to begin on December 4, 2017. [Doc. 104].
On November 27, 2017, Mr. Silas filed a motion for reconsideration of the earlier ruling excluding the diminished capacity evidence. [Doc. 131]. In that motion, Mr. Silas urged the Court to permit the testimony of Dr. Shah to show that Gumbs suffered from diminished capacity, pointing to caselaw from other circuits for the proposition that the crime of assaulting a federal officer is a specific intent crime. [Id. at 4 (citing cases from the Eighth, Tenth, and First Circuits)]. On November 28, 2017, the Court issued a written Order denying the motion for reconsideration, ruling that it was bound by the Eleventh Circuit holding in Ettinger that the crime of assaulting a federal officer is a general intent crime and therefore diminished capacity is not an available defense to an offense charged under 18 U.S.C. § 111. The Court noted that “the fact that there is a Circuit split is irrelevant when the Eleventh Circuit has ruled on the precise issue, which decision is binding on this Court.” [Doc. 136].
The second jury trial began on December 4, 2017. [Doc. 146]. The evidence at trial, as summarized by the Eleventh Circuit, showed that Gumbs “was a fugitive with an outstanding warrant for his arrest. Sitting in his car, surrounded by task force officers with the U.S. Marshals Service ready to take him into custody, Gumbs stomped on his gas pedal, struck one officer and just missed three others.” United States v. Gumbs, 964 F.3d 1340, 1343 (11th Cir. 2020).
At trial, the evidence showed that a seven-member task force working with the United States Marshals Service was assigned to arrest Gumbs, who was a fugitive with an outstanding arrest warrant. The task force members were Officers Lempka, Hill, Baker, Stevens, Ralston, Siler, and Heinze, and they were each provided with a photograph of Gumbs. [Doc. 175 at 172-76; Doc. 176 at 144-45; Doc. 177 at 49-50, 97-98, 151-53; Doc. 178 at 56-57]. On October 21, 2016, Officer Ralston spotted Gumbs sitting inside his car in a small, fenced-in Atlanta parking lot, and he radioed the other officers. [Doc. 175 at 183; Doc. 177 at 99-100, 157]. Each task force officer who arrived at the scene wore protective gear with various law enforcement emblems embossed on these items. [Doc. 175 at 177-78; Doc. 176 at 147-48, 228; Doc. 177 at 53, 161, 221; Doc. 178 at 60].
Lempka and Heinze were employed by the United States Marshals Service as Inspectors, while Siler was a Deputy United States Marshal from the Northern District of Ohio. [Doc. 176 at 144; Doc. 177 at 50, 97]. Hill and Ralston were employed by the Georgia Department of Corrections. [Doc. 175 at 172; Doc. 177 at 151]. Stevens was employed by the Department of Homeland Security, Immigration and Customs Enforcement as a deportation officer. [Doc. 177 at 21617]. Baker was employed by the Rockdale County Sheriff's Office. [Doc. 178 at 51]. They were all assigned to the task force and were federally deputized. [Doc. 176 at 142]. For purposes of this Report and Recommendation, I will refer to the members of the task force as “Officers.”
Officer Hill arrived at the parking lot first and confirmed Gumbs's presence in the lot. [Doc. 175 at 183-85; Doc. 177 at 157]. Shortly thereafter, Officer Stevens, riding with Officers Ralston and Baker, entered the parking lot, pulled his van in front of Gumbs's vehicle, and activated his blue lights. [Doc. 175 at 18586; Doc. 177 at 167]. Officer Hill then pulled directly behind Gumbs's car to block him. [Doc. 175 at 186]. Suddenly, Gumbs placed his car in reverse and backed up before he stopped abruptly based on the position of Officer Hill's vehicle behind him. [Doc. 175 at 185-86; Doc. 176 at 153]. Officer Lempka then arrived with Officer Siler. [Doc.176 at 149, 153]. Officer Lempka parked his truck, with his blue lights activated, perpendicular to Officer Stevens's van to further block the exit. [Id. at 153-54]. Officers Stevens, Ralston, and Baker then got out of the van and approached Gumbs with their guns drawn; the officers announced themselves as law enforcement and repeatedly told Gumbs to park his car, show his hands, and surrender. [Doc. 175 at 186, 188; Doc. 177 at 167, 169, 225]. Officer Hill then joined the others. [Id.].
Officers Lempka and Siler got out of the truck and went toward the driver's side of Gumbs's car, stopping a few feet behind the four other officers. [Doc. 176 at 154-55, 157, 194]. Gumbs's window was partially down, and the officers were yelling at him that they were police and telling him to turn off his car. [Doc. 175 at 186, 188; Doc. 177 at 167, 169, 225]. After Gumbs refused to comply, Officer Lempka decided to return to his truck and retrieve a baton in case it became necessary to break the window of the vehicle. [Doc. 176 at 162-63]. At the same time, Officer Stevens reached inside the driver side window to attempt to open the door. [Doc. 175 at 190; Doc. 177 at 171, 227]. While this was occurring, Officers Stevens, Ralston, and Baker stood in close proximity to Gumbs's driver side door. [Doc. 177 at 171-72, 227; Doc. 178 at 75-76].
Gumbs then suddenly accelerated the car and drove toward the officers' van and truck. [Doc. 175 at 190]. Right then, Officer Lempka was running between the van and truck toward Gumbs. Gumbs “drove straight into [Officer Lempka],” pinning him between the van and Gumbs's car. [Doc. 175 at 163, 191-92; Doc. 176 at 163; Doc. 177 at 68-69; Doc. 178 at 74]. While Officer Lempka was pinned between the vehicles, his face was about a “foot away” from Gumbs's window and he made direct eye contact with Gumbs. [Doc. 176 at 171]. Gumbs hit both the van and truck as he sped off, and he did not slow down as he pinned Officer Lempka between the vehicles. [Doc. 175 at 191-92; Doc. 177 at 61-62, 95, 229-30; Doc. 178 at 71, 108]. Gumbs went on to hit a civilian car before eventually abandoning his car and escaping on foot. [Doc. 177 at 69]. He was arrested four days later. [Id. at 184].
The evidence showed that Officer Lempka suffered a “crushing injury” to his left knee and thigh; a “squashed” left thigh, just above the kneecap; and a right ankle sprain. [Doc. 177 at 17-24]. Officer Lempka also suffered injuries to his head, resulting in a black eye and a large bump on his brow. [Doc. 176 at 184].
On December 11, 2017, the jury found Gumbs guilty as to Count One for assaulting and injuring Officer Lempka and guilty on Count Two as to three of the other task force officers (Officers Stevens, Ralston, and Baker). [Doc. 161]. The jury found Gumbs not guilty on Count Two as to the other three alleged victims (Officers Hill, Siler, and Heinze). [Id.]. Gumbs filed a motion for new trial, and the Court denied it. [Docs. 168, 169, 173].
On September 12, 2018, Dr. Shah testified at Gumbs's sentencing hearing. [Doc. 202 at 4]. He testified that the purpose of his evaluation was to look at the issue of diminished capacity and Gumbs's mental state at the time of the offense. [Id. at 7-8]. Dr. Shah diagnosed Gumbs with PTSD and noted that his testing indicated that Gumbs had a “problematic level of what's called dissociation,” meaning that when Gumbs was reminded of a traumatic event, he would “tend to disassociate from reality.” [Id. at 20]. Gumbs also suffered from intrusive symptoms, including distress causing him to panic for his life and believe that he was in a very dangerous circumstance. [Id. at 22]. Dr. Shah also recounted reports from Gumbs's mother that, after his own shooting, he would run inside the house and hide if he heard gunshots. [Id. at 23]. Dr. Shah testified that the PTSD caused Gumbs to feel threatened and that the world is a dangerous and unsafe place. [Id. at 25]. Gumbs also had an “exaggerated startle response.” [Id. at 28-29]. As to the incident at issue, Dr. Shah testified that Gumbs “did not recall or he did not know that these were law enforcement officials,” and in the moment the guns were drawn and he was surrounded, “he couldn't register anything.” [Id. at 30]. According to Dr. Shah, what Gumbs described “was consistent with what would be more of a dissociative response. With also some hyperarousal going on.” [Id. at 31]. Dr. Shah explained that the dissociative response was “that feeling as if certain situations from that original trauma in 2006 was reoccurring,” which caused Gumbs to “detach [his] thoughts and emotions from what's going on at the time.” [Id.]. He testified that “it wouldn't be unusual for an individual who is first experiencing some sort of dissociative reaction to maybe pause, not really understand what's going on around him; for them to maybe not be able to think clearly, not being able to even feel or have an emotion before that ultimate reaction kicks in.” [Id. at 32]. Dr. Shah also noted that Gumbs did not seem to have a memory of the event, which is also common with a dissociative state. [Id. at 32-33].
On cross-examination, the Government and the Court both asked Dr. Shah whether his knowledge of Gumbs's jail call with his mother-which Dr. Shah was unaware of at the time of his evaluation-changed his opinion as to whether Gumbs experienced a dissociative response on the day of the offense. [Doc. 202 at 47-51]. Because Dr. Shah testified that he did not hear the portion of the conversation where Gumbs alluded to illegal activity, the Court asked Dr. Shah to assume that Gumbs was “carrying contraband in the trunk of [his] car.” [Id. at 51]. During the following exchange, Dr. Shah conceded that Gumbs may have been trying to evade arrest:
THE COURT: . . . Isn't it also possible that if in fact there was contraband in that car, and he thought he was going to be arrested and he would go to jail for a long period of time, that it was an equal possibility that he was trying to escape to avoid arrest?
THE WITNESS: Yes, your Honor. If he was engaged in illegal activity at the time and he had the contraband in his car, then a possibility is that he would have tried to evade arrest.
THE COURT: So even someone with PTSD who has PTSD symptoms, you could -- it is possible to explain their course of conduct because of
the PTSD, but it is also possible to explain their course of conduct if in fact the facts surrounding an incident suggests that there was illegal activity involved and a motivation of the person was to escape to avoid the consequences of that activity; are those two equal possibilities?
THE WITNESS: Yes. I would say those are two possibilities, yes.[Id. at 52]. On further questioning by the Government, Dr. Shah confirmed that the jail call provided a potential motivation for why Gumbs wanted to escape the parking lot-that he was engaged in illegal activity (“a convicted felon engaged in selling firearms”) and wanted to avoid a life sentence. [Id. at 54].
At the end of the sentencing hearing, the Court found the jail call to be particularly relevant to Gumbs's motivation and the need for future deterrence. [Doc. 202 at 158]. The Court found that Gumbs had made a calculated decision to flee from federal officers and harm them in the process to avoid a longer sentence, stating, “It was a voluntary choice that he made. And that was other collateral damage be damned, I am getting out of here through that opening that these officers left for me. And he did that.” [Id. at 154-57]. For this reason, the Court stated that Gumbs needed “specific deterrence as to not to do anything like this again.” [Id. at 158].
The Court sentenced Gumbs to 180 months of imprisonment on Count One and 55 months on Count Two, to be served consecutively, for a total of 235 months, to be followed by three years of supervised release on each count. [Docs. 185, 186]. Mr. Silas filed an appeal for Gumbs, challenging the jury instructions and the sufficiency of the evidence. [Doc. 193, 220]. On July 15, 2020, the Eleventh Circuit affirmed Gumbs's convictions and sentence. United States v. Gumbs, 964 F.3d 1340 (11th Cir. 2020). Gumbs filed a petition for a writ of certiorari, and the Supreme Court denied the petition on January 25, 2021. Gumbs v. United States, 141 S.Ct. 1282 (2021). On January 25, 2022, Gumbs timely filed the instant Motion to Vacate. [Doc. 230-1 at 23; Doc. 236 at 4.]
Where a defendant is unsuccessful on appeal and files a petition for certiorari with the Supreme Court, the one-year period begins to run when the Supreme Court either denies certiorari or issues a decision on the merits. See Washington v. United States, 243 F.3d 1299, 1301 (11th Cir. 2001).
II. MOTION TO VACATE & APPLICABLE LEGAL STANDARD
A motion to vacate, set aside, or correct sentence may be made “upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack ....” 28 U.S.C. § 2255(a). “[C]ollateral review is not a substitute for a direct appeal ....” Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004) (per curiam). Section 2255 relief “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.” Id. (quoting Richards v. United States, 837 F.2d 965, 966 (11th Cir. 1988) (per curiam)) (internal quotation marks omitted). A § 2255 movant “has the burden of sustaining his contentions by a preponderance of the evidence.” Tarver v. United States, 344 Fed.Appx. 581, 582 (11th Cir. 2009) (per curiam) (quoting Wright v. United States, 624 F.2d 557, 558 (5th Cir. 1980)).
In his Motion, Gumbs claims that his trial counsel provided ineffective assistance by failing to present an affirmative defense of insanity under 18 U.S.C. § 17. [Doc. 230 at 5; Doc. 230-1 at 13-23]. According to Gumbs, his PTSD supported an insanity defense. [Doc. 230-1 at 13-16]. He argues:
Gumbs also appears to argue that Mr. Silas was ineffective for waiting too long to seek a mental health evaluation. [Doc. 230-1 at 5, 16-17 (complaining that counsel waited five months after obtaining medical records confirming that Gumbs had been shot in the jaw in 2006 to obtain an evaluation and then waited until the eve of the first trial to provide notice of intent to use the psychological evidence)]. Although tardiness was one of the reasons why the expert testimony was excluded before the first trial, the Court's decision to prohibit the introduction of the evidence at the second trial was based solely on Ettinger; the timing of the disclosure was not a basis for the exclusion of the evidence. [Doc. 136]. Accordingly, there is no factual basis to complain that the timing of the expert disclosure harmed Gumbs in any way.
Here, it is highly probable that Mr. Gumbs' severe mental illness- PTSD-caused him to be unable to appreciate the nature and quality or the wrongfulness of his acts at the time of the offense. Specifically, Mr. Gumbs' PTSD was triggered by being surrounded by people who were pointing weapons at him, a situation unfortunately familiar to him after being shot in the jaw in 2006. At that time, he entered a dissociative state in which he was not processing what was around him, and his actions were caused by his body's response to being put in that scenario. He fled the area as quickly as possible, and he has no memory of what happened during the time of the offense.Doc. 230-1 at 15-16]. According to Gumbs, Mr. Silas should have recognized that the findings in Dr. Shah's report supported an insanity defense. [Id. at 18-21]. In the Motion to Vacate, Gumbs now argues that it was patently unreasonable for Mr. Silas to argue for a diminished capacity defense, given the Eleventh Circuit's holding in Ettinger. [Id. at 17-18 (noting that such a defense was “plainly barred by Eleventh Circuit precedent”)].
In a single paragraph, Gumbs also argues that Mr. Silas performed deficiently by failing to fully investigate his insanity defense. [Doc. 230-1 at 22]. This paragraph is pure speculation and provides no specifics about what exactly Mr. Silas might have found had he investigated further.
III. DISCUSSION
To demonstrate ineffective assistance of counsel, a convicted defendant must show that (1) “counsel's performance was deficient,” and (2) “the deficient performance prejudiced the defense.” Strickland v. Wash., 466 U.S. 668, 687 (1984). As to the first prong of Strickland, “a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Id. at 689 (internal quotation marks omitted). That presumption is “even stronger” if a court is “examining the performance of an experienced trial counsel.” Chandler v. United States, 218 F.3d 1305, 1316 (11th Cir. 2000).
As to the second prong, “[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. A court may consider either prong first and need not address the other “if the defendant makes an insufficient showing on one.” Id. at 697.
The defendant, not the Government, “continually bears the burden of persuasion on the constitutional issue of competence and further, (adding the prejudice element) on the issue of ineffective assistance of counsel.” Chandler, 218 F.3d at 1315 n.15. “Never does the government acquire the burden to show competence, even when some evidence to the contrary might be offered by the [defendant].” Id.
In his brief, Gumbs argues that his trial counsel was ineffective for failing to recognize, investigate, and present an affirmative defense of insanity promptly and that he was prejudiced as a result. [Doc. 230-1 at 16-23]. Thus, to prevail on his claim of ineffective assistance of counsel, Gumbs must show both: (1) that the decision not to pursue an insanity defense was unreasonable; and (2) “that there is a reasonable probability that he would have prevailed on his insanity defense had he pursued it.” Hayes v. Sec., Fla. Dep't of Corr., 10 F.4th 1203, 1211 (11th Cir. 2021) (internal quotation marks and citation omitted).
A. Counsel Was Not Ineffective
In 1984, Congress enacted the Insanity Defense Reform Act (“IDRA”) “in the wake of John Hinckley's acquittal of charges arising from his actions in shooting President Ronald Reagan and Press Secretary James Brady.” United States v. Cameron, 907 F.2d 1051, 1061 (11th Cir. 1990). The IDRA, codified at 18 U.S.C. § 17, provides the following narrow definition of insanity:
(a) Affirmative Defense. It is an affirmative defense to a prosecution under any Federal statute that, at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts. Mental disease or defect does not otherwise constitute a defense.
(b) Burden of Proof. The defendant has the burden of proving the defense of insanity by clear and convincing evidence.18 U.S.C. § 17.
The IDRA “‘eliminate[d] all other affirmative defenses or excuses based upon mental disease or defect.'” United States v. Westcott, 83 F.3d 1354, 1357-58 (11th Cir. 1996). Through the IDRA, “Congress intended to prohibit the presentation of evidence of mental disease or defect, short of insanity, to excuse conduct.'” Id. at 1358. To prove that he would have been successful on an insanity defense if his counsel had pursued it, Gumbs must show that he could convince a jury, by clear and convincing evidence, that he lacked the ability “to appreciate the nature and quality or the wrongfulness of his acts.” Hayes, 10 F.4th at 1214 (internal marks and citation omitted); 18 U.S.C. § 17(a).
Gumbs argues that Mr. Silas was ineffective because he did not recognize that Gumbs did not appreciate the nature and quality or the wrongfulness of his acts. [Doc. 230-1 at 13-16]. He makes this argument even though the facts available to Mr. Silas at the time directly refuted the applicability of the defense. For example, Mr. Silas knew that his own expert, Dr. Shah, opined that although Gumbs's “psychiatric symptoms appeared to be exerting a significant influence on his behavior at the time of the alleged offense, it appears that he had the capacity to appreciate the nature and quality or the wrongfulness of his acts.” [Doc. 231 at 16]. Moreover, Mr. Silas was aware of Gumbs's statements to his mother during the jail call-statements that showed that Gumbs knew what he was doing when he struck the vehicles and had consciously weighed the pros and cons of assaulting the officers. Gumbs told his mother, “It's a good thing I knock that police down and get that aggravated assault charge .... I feel a lot better carrying the charge of hitting that police with that car than to, than to, than to be carrying the charge of what that police would have catch me with in that car .... me catching them charges, yes, that was the best thing for me to do.” [Doc. 115-1]. Mr. Silas knew that this evidence might be admissible if he were to make arguments about Gumbs's state of mind. Given these facts, it was not unreasonable for Mr. Silas to decide not to assert an insanity defense.
In his reply, Gumbs argues that Dr. Shah's opinion would not have been admissible at trial because it is an opinion on an ultimate issue. [Doc. 241 at 7-8]. This argument is misplaced. The issue presented in this Motion to Vacate is whether Mr. Silas should have raised the insanity defense. In deciding which defenses to pursue, it was reasonable for Mr. Silas to consider everything in his own expert's report, regardless of whether it would be admissible or not.
In a pretrial written Order before the second trial, the Court ruled that the jail call evidence could not be introduced at trial to show that Gumbs intended to hit the officer. [Doc. 136 at 6]. The Court noted, however, that at the first trial, Gumbs did not dispute that he fled the scene to avoid arrest. The Court stated that if, at the second trial, Gumbs were to contend that he did not intend to resist arrest, the jail call could be relevant to show his intent to avoid being taken into custody. [Id.].
As further support for his Motion to Vacate, Gumbs provides a psychosocial assessment created by the Bureau of Prisons in connection with Gumbs's request to participate in a treatment program. [Doc. 242-1]. The assessment concluded that Gumbs met the DSM-5 diagnostic criteria for PTSD and was eligible to participate in the program. [Id. at 4-5]. The assessment noted that Gumbs had “[m]arked physiological reactions to internal or external cues that symbolize or resemble an aspect of the traumatic event[s]” and exhibited “marked alterations in arousal and reactivity,” including “[h]ypervigilance” and an “[e]xaggerated startle response.” [Id. at 4]. The assessment, however, did not indicate that Gumbs lacked capacity to understand the nature and quality of his actions or the wrongfulness of his actions. [Id. at 4-5]. Simply having a diagnosis of a mental illness does not establish that Gumbs could not appreciate the wrongfulness of his behavior. See United States v. Samples, 456 F.3d 875, 883 (8th Cir. 2006) (“That Samples suffers from mental illnesses and was suicidal or even psychotic on the date of the robbery does not establish that he could not appreciate the wrongfulness of his behavior.”).
The assessment also noted that Gumbs was oriented as to person, place, time, and situation and had clear, coherent, relevant, and normal speech. [Doc. 242-1 at 4]. It also noted that Gumbs was not experiencing delusions, illusions, or hallucinations. [Id.]. To the contrary, the assessment found that Gumbs's thought processes were logical and organized, and his reality perception was intact. [Id.].
Gumbs cites several cases in support of his position, but they are all easily distinguishable from the facts presented here. [Doc. 230-1 at 13-16]. The Eleventh Circuit opinion in United States v. Owens, 854 F.2d 432 (11th Cir. 1988), is different from this case because in Owens, the defendant's expert testified that the defendant “fluctuated in and out of touch with reality, that his problem[-]solving ability to deal with day-to-day tasks was so weak and so limited that he had a very, very weak grasp of reality and at times, would lose all contact with reality.” Id. at 433-34. Here, Dr. Shah did not opine that Gumbs had lost all contact with reality or that Gumbs had a weak grasp on reality. In fact, Dr. Shah reached the opposite conclusion. [Doc. 231-1 at 16-17].
Gumbs also cites cases from other circuits that are likewise not on point. In United States v. Goodman, 633 F.3d 963 (10th Cir. 2011), the issue was when to allow lay witness testimony about a defendant's “personality, mental stability, and emotional state,” not whether there was clear and convincing evidence concerning insanity. Id. at 964-71. The defendant in United States v. Melhuish, 6 F.4th 380 (2d Cir. 2021), suffered from schizophrenia as well as PTSD and had experienced a traumatic brain injury. Id. at 385. The evidence showed that the defendant in Melhuish suffered from a frequent delusional belief that “police officers with ties to the occult and to pedophile rings [were] seeking to cause her physical harm.” Id. The testimony in that case also suggested that based on the defendant's psychotic delusions and beliefs, she was unable to appreciate that it would be wrong to fight back when an officer tried to restrain her. Id. at 397-98. In contrast, there was no such evidence here. Finally, in United States v. Rezaq, 918 F.Supp. 463 (D.D.C. 1996), the defendant's experts produced three reports explaining that the defendant suffered from a severe case of PTSD that “seriously impaired” his ability to judge the wrongfulness of his conduct. Id. at 467. In contrast, in this case, Dr. Shah found that Gumbs had the ability to understand the wrongfulness of his conduct at the time of the offense. [Doc. 231-1 at 16-17].
In short, the facts presented in Gumbs's case did not support a conclusion that Gumbs met the statutory definition of insanity. Mr. Silas's decision not to raise that defense, therefore, was not unreasonable and did not render his performance ineffective. See Trask v. Fla. Dep't of Corr., 679 Fed.Appx. 883, 889-90 (11th Cir. 2017) (per curiam) (concluding that the state court reasonably rejected a habeas petitioner's ineffective assistance of counsel claim where the evidence indicated that it would have been reasonable to conclude that the jury would have rejected the petitioner's proposed insanity defense); Miller v. Dunn, No. CV 2:13-154-KOB, 2017 WL 1164811, at *16 (N.D. Ala. Mar. 29, 2017) (“Given that no mental health expert determined Miller to meet the definition of insanity, trial counsel's decision to withdraw the insanity defense was reasonable.”), aff'd sub nom. Miller v. Comm'r, Ala. Dep't of Corr., 826 Fed.Appx. 743 (11th Cir. 2020).
Gumbs essentially argues (with the benefit of hindsight and new, retained counsel) that his trial counsel should have done things differently. That, however, is not the standard for evaluating effective performance. See Chandler, 218 F.3d at 1316 (“In reviewing counsel's performance, a court must avoid using ‘the distorting effects of hindsight' and must evaluate the reasonableness of counsel's performance ‘from counsel's perspective at the time.'”) (quoting Strickland, 466 U.S. at 689). Instead, as the Eleventh Circuit has noted:
The test [for deficient performance] has nothing to do with what the best lawyers would have done. Nor is the test even what most good lawyers would have done. We ask only whether some reasonable lawyer at the trial could have acted, in the circumstances, as defense counsel acted at trial.White v. Singletary, 972 F.2d 1218, 1220 (11th Cir. 1992).
For the above reasons, Gumbs fails to rebut the strong presumption that his trial counsel, who is an experienced attorney with the Federal Defender Program, performed reasonably. Chandler, 218 F.3d at 1316. Gumbs consequently has not established the first element of his ineffective assistance of counsel claim.
B. Gumbs Cannot Show Prejudice
Even if his counsel acted unreasonably, Gumbs fails to show prejudice. For the reasons discussed above, the evidence did not indicate that Gumbs met the statutory definition of insanity or that he could prove the insanity defense by clear and convincing evidence. Gumbs consequently cannot show that a reasonable probability existed that he would have prevailed on the insanity defense if his counsel had pursued it. Gumbs, therefore, cannot establish the prejudice prong of his ineffective assistance of counsel claim. Hayes, 10 F.4th at 1211.
Gumbs argues that he was not aware of the nature and quality of his actions at the time of the offense because he did not know he was encountered by federal officers. [Doc. 230-1 at 10-11, 20]. This argument is a “diminished capacity” claim. Diminished capacity is not a permitted defense for a violation of 18 U.S.C. § 111 because that statute is a general intent crime. Ettinger, 344 F.3d at 1160. Further, knowledge of the victim's status as a federal officer is not required for a conviction under Section 111; a defendant need only have an intent to assault to violate the statute. United States v. Feola, 420 U.S. 671, 684 (1975); United States v. Alvarez, 755 F.2d 830, 842 (11th Cir. 1985). This argument, therefore, is unavailing.
C. No Evidentiary Hearing Is Required
Gumbs argues that an evidentiary hearing is necessary “to determine whether counsel made a strategic decision and whether any allegedly strategic decision was reasonable and based on adequate investigation of the law and the facts.” [Doc. 241 at 9]. A court, however, is not required to hold an evidentiary hearing every time a Section 2255 claim is raised. Futch v. Dugger, 874 F.2d 1483, 1485 (11th Cir. 1989). Instead, a federal habeas corpus petitioner is entitled to an evidentiary hearing only where the petitioner alleges facts that, if proven, would entitle the petitioner to relief. Id. A court also is not required to hold an evidentiary hearing when “the record refutes the applicant's factual allegations or otherwise precludes habeas relief.” Schriro v. Landrigan, 550 U.S. 465, 474 (2007). Here, the record conclusively shows that Gumbs is entitled to no relief; a hearing, therefore, is not required. See 28 U.S.C. § 2255(b).
IV. CERTIFICATE OF APPEALABILITY
Under Rule 11(a) of the Rules Governing Section 2255 Proceedings, “[t]he district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.... If the court issues a certificate, the court must state the specific issue or issues that satisfy the showing required by 28 U.S.C.§ 2253(c)(2).” 28 U.S.C. foll. § 2255, Rule 11(a). Section 2253(c)(2) states that a certificate of appealability may issue “only if the applicant has made a substantial showing of the denial of a constitutional right.” A substantial showing of the denial of a constitutional right “includes showing that reasonable jurists could debate whether (or, for that matter, agree that) the [motion to vacate] should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks omitted).
When the district court denies a [motion to vacate] on procedural grounds without reaching the prisoner's underlying constitutional claim . . . a certificate of appealability should issue only when the prisoner shows both that jurists of reason would find it debatable whether the [motion] 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.Jimenez v. Quarterman, 555 U.S. 113, 118 n.3 (2009) (citing Slack, 529 U.S. at 484) (internal quotation marks omitted).
I RECOMMEND that a certificate of appealability be denied because the resolution of the issues presented is not debatable. If the district judge adopts this recommendation and denies a certificate of appealability, Gumbs is advised that he “may not appeal the denial but may seek a certificate from the court of appeals under Federal Rule of Appellate Procedure 22.” 28 U.S.C. foll. § 2255, Rule 11(a).
V. CONCLUSION
For the reasons stated above, I RECOMMEND that the Motion to Vacate [Doc. 230] be DENIED, a certificate of appealability be DENIED, and civil action number 1:22-cv-310-MHC-CMS be CLOSED.
The Clerk is DIRECTED to terminate the referral of the Motion to Vacate to me.
SO RECOMMENDED.