Opinion
CRIMINAL 1:20-CR-99-WMR-JKL-1 CIVIL ACTION 1:22-CV-2501-WMR-JKL
07-24-2024
DAMIEN HARRIS, Movant, v. UNITED STATES OF AMERICA, Respondent.
MOTION TO VACATE 28 U.S.C. §2255
FINAL REPORT AND RECOMMENDATION
JOHN K. LARKINS III UNITED STATES MAGISTRATE JUDGE
Through counsel, Movant filed an amended motion under 28 U.S.C. §2255 to vacate his sentence on the ground that plea counsel was ineffective by failing to investigate and present certain mitigating evidence at sentencing. (Doc. 201). The Court held an evidentiary hearing on April 22, 2024, at which Movant's plea counsel and common-law wife testified. (Doc. 220 (“Hr'g Tr.”)). For the following reasons, I recommend that the motion to vacate be DENIED.
Movant originally also raised a claim that counsel was ineffective for failing to argue that Movant was eligible for a safety valve reduction [Doc. 201]; however, he later withdrew that claim. (Doc. 207 at 17).
Movant filed the original §2255 motion pro se. (Doc. 161). Thereafter, the Court appointed Colin Garrett of the Federal Defender Program to represent him. (Doc. 170).
I. BACKGROUND
A. Factual History
In 2019 the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) received a tip from a confidential informant (“CI”) that Movant's co-defendant, Jonathan Bass, wanted the CI to introduce him to potential buyers for the sale of drugs. (Doc. 157 (“Plea Tr.”) at 28-29). ATF agents then arranged for the CI to introduce Bass to another CI, who made a series of controlled buys from Bass, Movant, and another co-defendant, Randy Leonard, all of which took place in a barbershop. (Id. at 29). The agents monitored and captured all the communications between the CI and Movant and his co-defendants over the CI's phone, and the CI was wired for video and sound which captured the in-person interactions between them. (Id.). Movant was involved in several separate methamphetamine transactions from November 13, 2019 through January 2, 2020, usually operating through his co-defendants, and two of those transactions involved guns. (Id. at 30; Doc. 112 (“PSR”) ¶¶33, 38, 53, 54). These facts were never disputed because they were documented and captured on audio and video.
When citing to transcripts, I will refer to the page numbers provided by the Court's case file database (“CM/ECF”) if they are different from the page numbers listed on the transcript.
1. November 13, 2019
On November 13, 2019, Bass sold the CI a little more than 110 grams of a hundred percent pure methamphetamine for $1,600. (Plea Tr. at 29; PSR ¶26). ATF agents later learned that Movant was the source of the methamphetamine. (Plea Tr. at 29; PSR ¶25).
2. November 20, 2019
Bass met again with the CI on November 20, 2019 and executed another controlled buy, this time 157.64 grams of seventy-six percent pure methamphetamine at a price of $3,400. (Plea Tr. at 29-30; PSR ¶¶28-32). Bass told the CI that the source of the supply was the same as the last transaction- Movant. (Plea Tr. at 30; PSR ¶29).
3. December 4, 2019
Bass sold the CI two handguns and methamphetamine as a “package deal” -the source for which was Movant. (Plea Tr. at 30; PSR ¶39). During the deal Bass sent a text message to Movant and asked for the “overall price.” (PSR ¶39). A few minutes later, Bass called Movant and placed him on speakerphone, and Movant quoted a price of $4,000 for ten ounces of methamphetamine and two firearms. (Id.).
The CI, however, refused to pay that amount because the CI did not like the “look” of the methamphetamine, instead offered $2,600 for six ounces thereof plus the guns, and told Bass that he would have to take back the remaining four ounces since there was a discrepancy with the price Bass had quoted and the price was too high. (Id.). Bass agreed to $2,100 for the sale of two firearms and 116.09 grams of methamphetamine containing seventy-one percent purity. (Id.; Plea Tr. at 30).
Later that same day, however, Bass called the CI and told the CI that “they were going to have to make things right,” as Bass was on his way to pay the source. (PSR ¶40; Plea Tr. at 30). Bass admitted to the CI that he had messed up the prices and that it was all his fault, but that he needed to sell the additional methamphetamine because he could not return it to the source. (PSR ¶40; Plea Tr. at 30). Bass then called the CI approximately a dozen times to ask if the CI would buy the remaining four ounces since Movant had obtained the drugs from a cartel, and the cartel would kill someone over the mix-up. (PSR ¶40; Plea Tr. at 30). The CI told Bass that he/she wanted to talk to the source and Bass gave the CI Movant's phone number. (PSR ¶40).
During the CI's conversation with Movant, Movant sounded disgusted and angry that Bass could not get the math right. (PSR ¶41). They discussed meeting on December 6, 2019, and agreed that at that time the CI would buy the other four ounces and pay Movant what he was owed from the original price. (Id.).
4. December 6, 2019
Movant spoke with the CI on December 5, 2019. (Id.). During that conversation, the CI asked about the payment to make up for Bass's mistake as well as the price for the remaining four ounces of methamphetamine, and Movant told the CI that the total price was $1,850. (Id. ¶43). Movant also told the CI that he had been selling drugs for twenty years, that he was willing to sell guns to the CI, and that he had access to Roxicodone and heroin. (Id.).
The next day Movant and Bass met with the CI. (Id. ¶¶44-46; Plea Tr. at 3031). The CI examined the methamphetamine and told Movant and Bass that the quality was not what he had been expecting, but he ultimately purchased 80.71 grams at seventy-six percent purity for $1,850. (PSR ¶¶45-46; Plea Tr. at 30-31).
5. December 11, 2019
Bass was physically present at this controlled buy, during which the CI bought 262.4 grams of crystal methamphetamine for $2,500. (Plea Tr. at 31; PSR at ¶¶49-51). Bass explained to the CI that Movant had specially packaged the drugs to address the quality concerns the CI had raised. (Plea Tr. at 31; PSR ¶¶49, 51). After the money and drugs exchanged hands, Bass received a call from Movant and handed the phone to the CI, Movant confirmed that he had packaged the drugs himself, and Movant told the CI to tell Bass to bring him his money. (Plea Tr. at 31; PSR ¶51).
On February 27, 2020, ATF agents arrested Movant at his home in Buford, Georgia pursuant to a federal arrest warrant. (Plea Tr. at 31; PSR ¶67). Movant waived his Miranda rights, admitted that he knew Bass from a barbershop, and acknowledged that he was a felon with two previous drug convictions. (Plea Tr. at 31-32; PSR ¶68).
Specifically, Movant was convicted of possession of cocaine in the Hall County Superior Court on December 21, 2009, and attempted distribution of methamphetamine on December 6, 2012, for which he served more than twelve months of imprisonment. (Plea Tr. at 32; PSR ¶12).
B. Procedural History
On February 25, 2020, a grand jury returned an eleven-count indictment against Movant, Bass, and Randy Leonard. (Doc. 1). Movant specifically was charged with conspiracy to distribute at least 500 grams of a mixture containing a detectable amount of methamphetamine in violation of 21 U.S.C. §§841(B)(1)(A) and 846 (Count One); five counts of distributing at least 50 grams of a mixture containing a detectable amount of methamphetamine in violation of 21 U.S.C. §§841(a) and 841(b)(1)(B), and 18 U.S.C. §2 (Counts Three, Four, Seven, Eight, and Nine); and two counts of possession of a firearm by a felon in violation of 18 U.S.C. §§922(g)(1) and 924(a)(2) (Counts Six and Eleven). While represented by Jeffrey Sliz, Movant entered a negotiated plea to Count One of the indictment on July 29, 2020. (Docs. 82, 82-1).
In exchange for Movant's negotiated plea to Count One, the Government agreed to dismiss the remaining counts against him. (Doc. 82-1 (“Plea Agreement”) at 2, 4; Plea Tr. at 17). The Government and Movant also agreed, inter alia, that the applicable offense guideline was §2D1.1(c)(3) of the United States Sentencing Guidelines (“U.S.S.G.”) based on 20,144.6 kilograms of drug weight; that Movant receive a two-level upward adjustment under U.S.S.G. §2D1.1(b)(1) since Movant was the source of the sale of four guns; and that Movant receive a two-level decrease for acceptance of responsibility under U.S.S.G. §3E1.1(a). (Plea Agreement at 5-6; PSR ¶¶72-83; Plea Tr. at 17-18). The Government also agreed to recommend that Movant be sentenced at the low end of the adjusted guideline range. (Plea Agreement at 11).
The PSR included, inter alia, personal facts that: Movant never met his father and does not know his father's name; he lived with his mother intermittently, and his maternal grandmother primarily raised him; his mother was diagnosed with bipolar disorder; sometime during his childhood Movant's mother abandoned him and his sister at a cousin's home, after which they were placed in foster care for a few years; when Movant did live with his mother, she constantly entertained men who physically abused him and introduced him to, and supplied him with, alcohol beginning at age thirteen; Movant began smoking marijuana at age sixteen, did so approximately for six months, and then quit until his thirties when he resumed daily use; Movant believes that his mother used crack cocaine when he was a child; Movant is very involved in all thirteen of his children's lives; Movant suffered a motorcycle accident causing him severe injuries, including chronic lower back pain, difficulty standing for long periods, and he cannot run or squat; he has Type 2 diabetes and asthma, for which he receives treatment; Movant has suffered from depression, with which he has struggled for most of his life, but most recently after his oldest son's death from Lupus in 2019; and he first used methamphetamine after his son died and then smoked it every weekend. (PSR ¶¶112-130). The PSR calculated Movant's criminal history as a Category II with an adjusted offense level of 33, for a sentencing guideline range of 151-188 months. (PSR ¶¶29, 37).
As agreed, at the sentencing hearing the Government recommended a sentence at the lowest end of the guideline range of151 months. (Doc. 156 (“Sentencing Tr.”) at 21). Mr. Sliz asked the Court to sentence Movant to the ten-year mandatory minimum sentence, because: the loss of his son to Lupus in 2019 caused him to go into a tailspin; while Movant had issues with drug abuse over the years, he had been clean and sober until his son died, after which he returned to drug use due to his depression; although Movant had had “minor scrapes with the law,” he had never hurt anyone or used guns; he has many children he takes care of and supports, most of whom were at sentencing to support him; he accepted responsibility; and he suffered from significant health issues. (Sentencing Tr. at 1619).
Both the plea agreement and the PSR stated that the mandatory minimum was fifteen years of imprisonment, which both parties believed to be the case. (Plea Agreement at 3; PSR at 37). In order for the fifteen-year minimum to apply, however, the Government was required to file a criminal information of Movant's previous convictions before he entered his plea. See 21 U.S.C. §851. Before sentencing, counsel for the Government conceded that she had failed to comply with that requirement and, therefore, the fifteen-year mandatory minimum did not apply. (Doc. 103 at 1-2; Hr'g Tr. at 29-31).
Movant's common-law wife, Cheryl Lipscomb, made a statement to the Court, during which she praised Movant for accepting his mistakes and for being honest with his children about those mistakes and the consequences thereof, described Movant as an amazing person, partner, and father, and asked the Court for leniency for the sake of the children. (Id. at 27). Movant also made a statement to the Court in which he acknowledged that he had made mistakes, expounded upon how his son's death had impacted him immediately before he committed the crimes, explained that he had been led into making poor decisions and knew he had to be punished, but also requested the Court's leniency. (Id. at 28-29).
The District Judge stated that he was impressed by Movant's humility, the support from his family and wife, and his genuine remorse, and sentenced Movant to a below-guidelines sentence of 136 months. (Id. at 29-34; see also Doc. 105). The District Judge noted that arguably Movant's personal characteristics could warrant an even lower sentence, but that the Court still had to keep in mind “general deterrence” as well as avoiding sentencing disparities with other similarly situated defendants. (Sentencing Tr. at 39-40).
Movant executed a pro se motion to vacate his sentence on June 15, 2022. (Doc. 167). On July 28, 2022, the Court granted his motion for appointment of counsel and appointed Colin Garrett to represent him. (Doc. 170). Thereafter, the Court provided Movant with several extensions of time to file an amended §2255 motion [Docs. 173, 175, 178, 181, 185, 198], which he filed on November 28, 2023. (Doc. 202). Therein, Movant raised two ineffective assistance of counsel claims, one of which he later withdrew. See n.1, infra. In connection with the amended motion Movant also submitted a mitigation report, Movant's GDC medical records, and the results of a forensic neuropsychological evaluation. (Docs. 202-1, 202-2, 202-3). I conducted an evidentiary hearing on April 22, 2024 [Doc. 214], the parties have submitted post-hearing briefs [Docs. 231, 232, 233], and the matter is before me on the sole issue of whether counsel was ineffective for failing to investigate and present more in-depth mitigation evidence.
Before filing the pro se §2255 motion Movant filed an appeal with the Eleventh Circuit, which he later voluntarily dismissed. (Docs. 107, 108, 166).
At the outset, I would note that the mitigation report and psychological evaluation Movant submitted are plainly submitted for the truth of the matter asserted, that is, as an attempt by Movant to prove the details of the additional mitigation evidence he argues should have been investigated and raised. As such, it is classic hearsay, and the admissibility thereof is highly doubtful. Moreover, and putting aside the reliability of the standardized test utilized in the psychological evaluation, the psychological report provides nothing of additional substance other than that the results of the test indicated that Movant allegedly has “mild intellectual deficiencies.” (See Doc. 202-3). Even more importantly, however, the fact and extent to which Movant suffered during his childhood is not the issue before the Court. Instead, the focus of these proceedings is to determine whether counsel's actions were reasonable based on his knowledge and perspective at the time, and not to separately litigate the truth of Movant's mitigation circumstances.
II. STANDARD OF REVIEW
Congress enacted §2255, authorizing convicted criminal defendants to file a motion to correct sentences that violate federal law, with the intention that the statute serve as the primary method of collateral attack on federally-imposed sentences. United States v. Jordan, 915 F.2d 622, 625 (11th Cir. 1990). Under §2255, individuals sentenced by a federal court can attack the sentence imposed by claiming one of four grounds: “(1) that the sentence was imposed in violation of the Constitution or laws of the United States; (2) that the court was without jurisdiction to impose such sentence; (3) that the sentence was in excess of the maximum authorized by law; and (4) that the sentence is otherwise subject to collateral attack.” Id. (citations omitted); see generally United States v. Hayman, 342 U.S. 205 (1952).
“[T]o obtain collateral relief a prisoner must clear a significantly higher hurdle than would exist on direct appeal.” United States v. Frady, 456 U.S. 152, 166 (1982). Movant must establish that the facts surrounding his claim present “exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent.” Bowen v. Johnston, 306 U.S. 19, 27 (1939).
III. ANALYSIS
A. Evidence Presented at the Evidentiary Hearing
Mr. Sliz is an experienced criminal defense lawyer, having practiced since 1975. (Hr'g Tr. at 6). Although most of his experience has been in state court, Mr. Sliz had some experience with federal cases, albeit a limited amount, and he brought in Wesley Person to help represent Movant because, inter alia, Mr. Person had more federal experience. (Id.). To that end, Mr. Person helped Mr. Sliz with evaluating the case and the PSR, as well as preparing for sentencing. (Id. at 8-10). According to Mr. Sliz, the Government's evidence “did not leave much air” since a CI was involved and because all the conversations and actions were recorded. (Id. at 1012). Given those facts, it was a very difficult case to negotiate, and once Mr. Sliz thought he had negotiated as far as the Government would go, his strategy was to seek a reduction from the Court. (Id. at 10, 13).
Although Mr. Person assisted with Movant's case, for ease of reference and discussion, for the most part I will simply refer to Mr. Sliz when analyzing the ineffective assistance of counsel issue.
Before representing Movant, Mr. Sliz had known and represented several members of Movant's family. (Id. at 14). During his representation of Movant and their interactions, Mr. Sliz never saw any indication - through Movant's demeanor or otherwise - that there were serious mental health or cognitive issues; nor did Mr. Sliz ever have any communication problems with Movant or feel that Movant did not understand the proceedings and/or discussions between them. (Id. at 13-14, 21, 24-26). Likewise, Mr. Sliz was never made aware that there were any such issues, and he did not recall learning anything from either Movant or Ms. Lipscomb about Movant's difficult childhood. (Id. at 26, 19-20). In short, Mr. Sliz never saw, and never was told about, any significant issues for which he thought mitigation was necessary. (Id. at 13, 20-21). Overall, since the District Judge gave Movant a sentence substantially lower than the guidelines, Mr. Sliz thought they obtained a great result based on their presentation at sentencing. (Id. at 37).
Ms. Lipscomb testified that she and Movant had been together for twentyseven years, they have four children together, and they co-parent Movant's other children. (Id. at 39). Ms. Lipscomb hired Mr. Sliz to represent Movant, and she attended every meeting except when Movant was incarcerated. (Id. at 40). According to Ms. Lipscomb, because she feels like Movant cannot explain himself or ask the right questions, she generally does so for him. (Id. at 40-43). Because she did not believe that Movant understood what was discussed during the meetings between Movant and the attorneys, she asked most of the questions. (Id.). Before sentencing, neither lawyer mentioned to Ms. Lipscomb that she or any of his children should speak on Movant's behalf; instead, during the sentencing hearing Movant asked Mr. Sliz that she do so. (Id. at 48).
According to Ms. Lipscomb, counsel never discussed anything having to do with Movant as a person outside his role in the case. (Id. at 49). And neither attorney ever asked Ms. Lipscomb about Movant's childhood, his motorcycle accident, their relationship, contact information for any other person they should interview, or places from which they could or should obtain Movant's background records. (Id. at 48-49). But Ms. Lipscomb did not ever state that she brought any of these issues to counsels' attention.
B. Movant Has Not Shown Counsel Was Ineffective.
1. Ineffective Assistance of Counsel Standard
The standard for evaluating ineffective assistance of counsel claims was set forth in Strickland v. Washington, 466 U.S. 668 (1984). Green v. Nelson, 595 F.3d 1245, 1239 (11th Cir. 2010). “An ineffective assistance claim has two components: A petitioner must show that counsel's performance was deficient, and that the deficiency prejudiced the defense.” Wiggins v. Smith, 539 U.S. 510, 521 (2003) (citing Strickland, 466 U.S. at 688). To establish deficiency, a petitioner must establish that “counsel's representation ‘fell below an objective standard of reasonableness.'” Wiggins 539 U.S. at 521 (quoting Strickland, 466 U.S. at 688). To establish prejudice, a petitioner must prove a “reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694; Allen v. Sec'y, Fla. Dep't of Corr., 611 F.3d 740, 750 (11th Cir. 2010).
“An attorney's performance is not deficient in hindsight just because he or she made one choice versus another.” Scott v. United States, 890 F.3d 1239, 1259 (11th Cir. 2018); see also Willis v. Newsome, 771 F.2d 1445, 1447 (11th Cir. 1985) (per curiam) (“Tactical decisions do not render assistance ineffective merely because in retrospect it is apparent that counsel chose the wrong course.”). An ineffective assistance claim should be examined based on the “‘totality of the circumstances[,]'” McCoy v. Newsome, 953 F.2d 1252, 1262 (11th Cir. 1992) (per curiam) (citations omitted), and the court may “dispose of [the] ineffectiveness claim[] on either of its two grounds.” Atkins v. Singletary, 965 F.2d 952, 959 (11th Cir. 1992); see also Strickland, 466 U.S. at 697 (“[T]here is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one.”). Significantly, cases where a defendant can satisfy both Strickland prongs “are few and far between.” Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000) (en banc) (citation and internal quotation marks omitted).
Strickland's two-pronged test applies to counsel's representation of a defendant in connection with a guilty plea. Hill v. Lockhart, 474 U.S. 52, 58-59 (1985). To demonstrate counsel's ineffective assistance after entering a plea, the Movant must show that “there is a reasonable probability that, but for counsel's deficient performance, he would have insisted on going to trial[,]” id. at 59, and must “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); Chandler v. United States, No. 20-13521, 2022 WL 445762, at *2 (11th Cir. Feb. 14) (per curiam) (internal quotation marks and citations omitted), cert. denied,___ U.S.___, 143 S.Ct. 174 (Oct. 3, 2022). “[A] petitioner's bare allegation that he would not have pleaded guilty is insufficient to establish prejudice under Strickland.” Roach v. Roberts, 373 Fed.Appx. 983, 985 (11th Cir. 2010) (per curiam) (citation omitted); see also Chandler, 2022 WL 445762, at *2 (“Post hoc assertions from a defendant about how he would have pleaded, but for his attorney's alleged deficiencies, are insufficient to allege an ineffective-assistance-of-counsel claim.”).
2. Movant Has Not Shown Any Deficiency in Counsel's Representation.
First, “[i]n any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.” Strickland, 466 U.S. at 689. Here, Movant has failed to demonstrate that Mr. Sliz's decision not to investigate was unreasonable. Indeed, none of the mitigation circumstances about which Movant claims Mr. Sliz should have investigated were apparent to him or were brought to his attention, for which Mr. Sliz cannot be held ineffective. See Callahan v. Campbell, 427 F.3d 897, 933 (11th Cir. 2005) (stating that court must evaluate reasonableness of investigation from counsel's perspective at the time, evidence of defendant's statements and acts in dealing with counsel is highly relevant, and finding counsel could not have been ineffective for failing to investigate or present mental health and/or child abuse issues in mitigation).
Additionally, contrary to Movant's argument, “[n]o absolute duty exists to introduce mitigating . . . evidence.” United States v. Chandler, 218 F.3d 1305, 1319 (11th Cir. 2000) (en banc); see also Waters v. Thomas, 46 F.3d 1506, 1511 (11th Cir. 1995) (en banc) (noting that many Eleventh Circuit and Supreme Court cases held counsel effective although counsel failed to present any available mitigation evidence). And where, as here, counsel does, in fact, raise several mitigating arguments during sentencing, he need not present all available evidence - even where some of the omitted evidence concerns the defendant's mental illness or impairment, or childhood abuse. See Callahan, 427 F.3d at 933 (“An attorney does not render ineffective assistance by failing to discover and develop evidence of childhood abuse that his client does not mention to him.”) (quotation marks and citations omitted); Chandler, 218 F.3d at 1319 (stating that counsel is not “required to present all mitigation evidence”); Waters, 46 F.3d at 1511 (“Our decisions are inconsistent with any notion that counsel must present all available mitigating circumstance evidence, or all available mental illness or impairment evidence, in order to render effective assistance of counsel at the sentence stage.”); Tarver v. Hopper, 169 F.3d 710, 715 (11th Cir. 1999) (noting that counsel is not “required to investigate and present all available mitigating evidence to be reasonable”).
The Government argues that all of the cases to which Movant cites for the proposition that such a duty exists are inapposite because all of those cases involve the death penalty and do not apply here. (Doc. 232 at 8). I would note, however, that several Eleventh Circuit cases to which I cite are, in fact, death penalty cases, and support the opposite conclusion, i.e., that counsel does not have an absolute duty to introduce mitigating evidence. See, e.g., Chandler, 218 F.3d 1305; see also Callahan v. Campbell, 427 F.3d 897 (11th Cir. 2005).
Moreover, the PSR set forth almost all of the mitigation circumstances Movant complains Mr. Sliz should have presented, and that information already was before the Court. Coupled with the mitigating arguments Mr. Sliz did, in fact, raise during the sentencing hearing, the District Judge was moved thereby when he sentenced Movant below the relevant guideline range. As much as Movant now argues that Mr. Sliz “barely scratched the surface” and had a duty to further investigate and argue more in-depth “extensive, life-long, and moving” mitigation [Doc. 231 at 11; see also Doc. 201 at 13-14; Doc. 241 at 15], he ignores the deference provided counsel's judgments, inappropriately uses hindsight to essentially split hairs, and unfairly raises the bar from one of reasonableness to that of near perfection. See Waters, 46 F.3d at 1514 (“As we have noted before, ‘[i]n retrospect, one may always identify shortcomings,' . . . but perfection is not the standard of effective assistance.”) (citations omitted). Movant, therefore, has failed to demonstrate Mr. Sliz provided anything other than effective assistance.
3. Movant Cannot Demonstrate Prejudice.
Regardless, Movant cannot show that the outcome would have been different had Mr. Sliz further investigated and presented more mitigation evidence; nor can he show that a decision to reject the plea would have been rational. Indeed, all the mitigation evidence Movant argues should have been investigated and presented -other than the results of the standardized intelligence test - simply appears to consist of more details of those factors which the Court clearly considered.
To that end, the District Judge already indicated that he would not enter an even lower sentence even though Movant's circumstances arguably warranted it -because he also had to take into consideration factors such as general deterrence and sentencing disparities. It is therefore by no means a reasonable probability that Movant would have received a lower sentence had counsel presented a more “indepth” discussion of the same mitigation issues before the Court beyond that which had already been presented in the PSR and by Mr. Sliz.
What's more, any argument that Movant had cognitive deficiencies just as easily could have backfired, hurt Movant's credibility with the Court, and diluted the mitigating factors by which the Court clearly was moved at sentencing, since the record belies that Movant had any such cognitive deficiencies. For instance, in 2014 Movant received a high school proficiency diploma with honors, he had continually maintained employment as a skilled mechanic for many years, and he had supported and mentored his many children. (PSR ¶¶132-34). And, as the Government points out, the covert recordings of the drug and gun transactions show that during the controlled buys Movant was intelligent enough to direct, manage, and supervise his co-defendants using code phrases, as well as to correct math errors and calculate drug prices. (PSR ¶¶39-56). Had Mr. Sliz argued that Movant had cognitive deficiencies, that questionable contention may not have fared well and likely would have undermined the District Judge's impression that Movant appeared to be genuine [see Sentencing Tr. at 30]. And contrary to Movant's arguments, “more is not always better.” Chandler, 218 F.3d at 1319; see also Waters, 46 F.3d at 1512 (“There is much wisdom for trial lawyers in the adage about leaving well enough alone.”).
Finally, Movant cannot demonstrate that it would have been rational for him to forgo the plea and proceed to trial, since the recorded evidence against him was difficult to refute, and Movant does not describe what, if any, defense he could have raised at trial. Most importantly, however, had Movant proceeded to trial, his sentencing exposure would have increased exponentially, since: the Government would not have dismissed the seven other counts against him; he likely would not have received the five-year mandatory minimum windfall or the downward departure for his acceptance of responsibility; the Government would have sought a two-level aggravating role enhancement [Doc. 206 at 9-10 n.1]; the Government may not have recommended a sentence at the lowest end of the guideline range; and the Court may not have sentenced Movant below the guideline range. Given all these circumstances, I cannot find that a rational person in Movant's situation would have rejected the plea. See, e.g., Sierra v. Fla. Dep't of Corr., 657 Fed.Appx. 849, 852 (11th Cir. 2016) (per curiam) (“With a video recording of the crime and no valid defenses, it would not have been rational for Sierra to have rejected the plea agreement and proceeded to trial.”); Diveroli v. United States, 803 F.3d 1258, 1265 (11th Cir. 2015) (finding decision to proceed to trial would not have been rational where there was overwhelming evidence of guilt, the defendant had no valid affirmative defenses, and he faced a much higher potential sentence); United States v. Miranda-Alfaro, 462 Fed.Appx. 935, 937 (11th Cir. 2012) (finding movant could not demonstrate prejudice because a rational person would not have rejected a plea bargain where movant received the “exceptional benefit” of lowering his sentence).
IV. CONCLUSION
Based on the foregoing reasons, IT IS RECOMMENDED that Damian Harris's amended motion to vacate his sentence [Doc. 201] be DENIED WITH PREJUDICE.
V. CERTIFICATE OF APPEALABILITY
Under Rule 11 of the Rules Governing §2255 Cases, “[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. §2253(c)(2) provides that a certificate of appealability (“COA”) may issue “only if the applicant has made a substantial showing of the denial of a constitutional right.” For the certification requirement to fulfill its function of weeding out frivolous appeals, a court should not automatically issue a COA; rather, the applicant must prove “something more than the absence of frivolity” or “the existence of mere ‘good faith' on his or her part.” Miller-El v. Cockrell, 537 U.S. 322, 338 (2003) (citations omitted).
Movant need not prove, however, that some jurists would grant the §2255 motion. See id. “The question is the debatability of the underlying constitutional claim, not the resolution of that debate.” See Lamarca v. Secretary, Dep't of Corr., 568 F.3d 929, 934 (11th Cir. 2009) (citing Miller-El, 537 U.S. at 325). In other words, Movant need only 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). As a result, reasonable jurists would not find “debatable or wrong” my determination that Movant has not shown he received ineffective assistance of counsel and/or his sentencing claim is not cognizable under §2255. See Slack, 529 U.S. at 484.
Accordingly, IT IS FURTHER RECOMMENDED that a COA be denied.
The Clerk is DIRECTED to terminate the reference to the undersigned Magistrate Judge.