Opinion
4:23-cv-00158-CDL-MSH 4:22-cr-00007-CDL-MSH
05-21-2024
RAYMOND RICHMOND, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
REPORT AND RECOMMENDATION
STEPHEN HYLES, UNITED STATES MAGISTRATE JUDGE
Pending before the Court is Petitioner Raymond Richmond's motion to vacate his sentence under 28 U.S.C. § 2255 (ECF No. 41). For the reasons explained below, it is recommended that Richmond's motion be denied.
BACKGROUND
The relevant facts-which are stipulated to by, and taken from, Richmond's plea agreement-are as follows: On December 15, 2020, a deputy with the Muscogee County, Georgia, Sheriff's Office was on routine patrol in Columbus, Georgia, when he observed a car operating without a brake light. Plea Agreement 10, ECF No. 26. When the deputy attempted to initiate a traffic stop, the car continued at a low rate of speed for several blocks but did not stop. Id. When the car slowed further, Richmond exited the front passenger seat with a black book bag and took off running. Id. After a brief foot chase, and the deputy observing Richmond throw the book bag in a residential backyard, Richmond was apprehended, and the book bag was located next to him in some shrubs. Id. at 11.
Inside the book bag were several containers of suspected drugs and other objects: a suspected crack cocaine rock with a gross weight of 4.1 grams; a plastic bottle containing suspected cocaine with a gross weight of 42.4 grams; 3 bags of suspected cocaine with a gross weight of 11.1 grams; a plastic bag containing several pills; 6 small bags containing suspected marijuana with a gross weight of 180.7 grams; a .40 caliber Glock pistol with 26 rounds of ammunition; and a .380 caliber Kel-Tec pistol with 5 rounds of ammunition. Id. Richmond was taken into custody, and it was later determined that he had seven outstanding warrants for his arrest. Id. Subsequent testing at the Georgia Bureau of Investigation confirmed the chemical analysis of the drugs: submission 1-2 of 7 bags were tested, with a total net weight of 169.21 grams, with concentrations of greater than 9.7% delta-9-THC and 9.56% delta-9-THC, respectively; submission 2A-positive for cocaine with a net weight of 25.77 grams; submission 2B-positive for cocaine with a net weight of 6.98 grams; submission 2C-positive for cocaine base with a net weight of 1.89 grams. Id. at 11-12.
Also relevant here were Richmond's four prior felony crimes: a March 24, 2006, conviction for possession of marijuana with intent to distribute; a September 28, 2006, conviction for interference with government property; an October 25, 2016, conviction for obstruction of a law enforcement officer; and an October 30, 2018, conviction for theft by taking. Id. at 12. Finally, Richmond stipulated and agreed that he knowingly possessed the firearms in question, that at the time of his possession he was a convicted felon and he knew he was a convicted felon, and that the firearms had been shipped or transported in interstate or foreign commerce. Id.
On April 12, 2022, a grand jury returned an indictment charging Richmond with one count each of possession of cocaine with intent to distribute (count one), possession of marijuana with intent to distribute (count two), possession of a firearm in furtherance of a drug trafficking crime (count three), and possession of a firearm by a convicted felon (count four). Indictment, ECF No. 1.
On April 19, 2023, Richmond pleaded guilty to count four, which charged him with possession of a firearm by a convicted felon. Plea Agreement 3; Plea Sheet, ECF No. 27. As part of his plea agreement, Richmond agreed the Government could prove beyond a reasonable doubt, and he stipulated to, the facts as recounted in relevant part, above. Plea Agreement 10-12; Change of Plea Tr. 16-18, ECF No. 43.
Following Richmond's guilty plea, the United States Probation Office (“USPO”) prepared a final revised pre-sentence report (“PSR”) (ECF No. 34), which acknowledged Richmond's objection (ECF No. 30) to the draft PSR (ECF No. 28), 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 twenty-six but assigned Richmond an adjusted offense level of thirty due to the specific offense characteristics. Revised Final PSR ¶¶ 1925, ECF No. 34. After a three-level reduction for acceptance of responsibility and entering the plea in a timely manner, Richmond's final total offense level was twenty-seven. Id. ¶¶ 27-29. With a criminal history category of VI, the USPO determined that Richmond's Guidelines imprisonment range was 120 months because the statutorily authorized maximum sentence of 10 years was less than the minimum of the applicable guideline range. Id. ¶¶ 49, 68.
The USPO also noted that Richmond's plea agreement impacted the guidelines in his case. Notably, had Richmond been convicted of count one, his guidelines range would have been calculated under the Career Offender provision, which would result in a base offense level of 32 with a three-level reduction for acceptance of responsibility, resulting in an advisory guideline range of 151 to 188 months. Id. ¶ 69. Further, if Richmond had been convicted of count three, he would have been exposed to a consecutive mandatory minimum term of imprisonment of five years. Id.
On July 19, 2023, the Court sentenced Richmond to 120 months concurrent to any term of imprisonment that might be imposed in Muscogee County, Georgia, Superior Court, plus three years of supervised release, and a $100 mandatory assessment fee. Judgment 2-6, ECF No. 39. In so doing, the Court addressed Richmond's objection to the draft PSR. Richmond objected that one of his prior convictions for sale of cocaine did not qualify as a “controlled substance offense” using the categorical approach. Objection 1, ECF No. 30. As a result, according to Richmond, his base offense level should have been twenty-two, with a total offense level of twenty-three, which would result in an advisory imprisonment range of 92 to 115 months. Id. The Court orally overruled Richmond's objection at sentencing and entered an extensive Order that overruled the objection (ECF No. 38) immediately prior to entering its judgment. Richmond did not file an appeal.
The Court received Richmond's motion to vacate pursuant to 28 U.S.C. § 2255 (ECF No. 41) on September 5, 2023. That same day, the Court ordered the Government to respond to Richmond's motion within sixty days (ECF No. 42). On October 25, 2023, the Government filed its response (ECF No. 44). Shortly thereafter, the copy of the Court's Order for the Government to respond that was mailed to Richmond was returned as undeliverable (ECF No. 45). On January 4, 2024, while noting that the Government certified service on Richmond at the correctional institution where he was being housed, the Court directed the Clerk of Court to resend its Order for the Government to respond, because it also included a notice to Richmond of his opportunity to reply to the Government's response, as well as a copy of the Government's response (ECF No. 46). Despite having been served two copies of the Government's response, and being informed of his right to reply to the Government's response, Richmond has not filed a reply as of the date of this recommendation.
I. Petitioner's Motion to Vacate
Turning to Richmond's claims, in the space provided for his answer to “Ground One” of his claims, Richmond writes “Miscomputation and Application of the Sentence Guidelines[.]” Mot. to Vacate 5, ECF No. 41. However, in the space provided for supporting facts for Ground One, he sets forth numerous claims. Id. As Richmond is proceeding pro se, and in order to do justice, see Fed.R.Civ.P. 8(e), the Court construes Richmond's claims as follows: first, Richmond asserts a claim that the sentencing guidelines were miscomputed and applied incorrectly based on the district judge's personal bias. Second, he asserts an ineffective assistance of counsel claim based on trial counsel's advice that he would serve a lesser sentence in the range of 80 months to 115 months. Third, he asserts an ineffective assistance of counsel claim because trial counsel failed to present mitigating evidence which would have affected his acceptance of responsibility points. Finally, Richmond asserts an ineffective assistance of counsel claim based on trial counsel's alleged failure to fully evaluate the plea bargain. Mot. to Vacate 5. None of Richmond's claims, as construed by the Court, have merit. The Court first addresses Richmond's sentencing claim and concludes by addressing the ineffective assistance of counsel claims.
A. Sentencing Claim
The Government asserts, in relevant part, two grounds for dismissing Richmond's sentencing claim. First, Richmond has waived his right to seek collateral review of his sentencing claim. Second, his sentencing claim is procedurally defaulted. Resp't's Mot. to Dismiss 6-10, ECF No. 44. The Government is correct on both accounts.
Because the Court finds Richmond's sentencing claim should be dismissed based on his collateral attack waiver and procedural default, the Court does not address the Government's arguments based on Richmond's sentencing claim not being cognizable under § 2255, or that it should be denied for vagueness. See Resp't's Mot. to Dismiss 5-6, 10, ECF No. 44.
First, as part of his plea agreement, Richmond agreed that he waived any right to collaterally attack his conviction and sentence in a § 2255 proceeding, except for a claim for ineffective assistance of counsel. Plea Agreement 5. If Richmond's collateral attack waiver was made knowingly and voluntarily, it will preclude his sentencing claim. Griffis v. United States, 746 Fed.Appx. 880, 882 (11th Cir. 2018) (per curiam) (citing Williams v. United States, 396 F.3d 1340, 1342 (11th Cir. 2005)) (Collateral attack “waivers are valid if made knowingly and voluntarily.”). In order to enforce Richmond's collateral attack waiver, the Government must show either “(1) the district court specifically questioned the defendant concerning the sentence appeal waiver during the [plea] colloquy, or (2) it is manifestly clear from the record that the defendant otherwise understood the full significance of the waiver.” Williams, 396 F.3d at 1341 (alteration in original) (quoting United States v. Bushert, 997 F.2d 1343, 1351 (11th Cir. 1993)).
Here, the record shows that the Court specifically questioned Richmond at his change of plea hearing.
THE COURT: [Y]ou are giving up or waiving your right to attack [your] sentence in any way, whether it be through a direct appeal or a collateral attack such as a petition for habeas corpus as long as I sentence you within the guideline range that I calculate; do you understand that?
[Richmond]: Yes, sir.
THE COURT: The only exception to that is you would retain the right, if appropriate, to assert a claim for ineffective assistance of counsel; do you understand that?
[Richmond]: Yes, sir.Change of Plea Tr. 10, ECF No. 43. Thus, the Court specifically questioned Richmond at his change of plea hearing, and as a result, the Government has shown that Richmond's collateral attack waiver was knowingly and voluntarily made. Accordingly, it is recommended that Richmond's sentencing claim be dismissed in accordance with his collateral attack waiver.
Second, Richmond did not file a direct appeal. To be sure, Richmond claims he filed an appeal, but the docket of this Court shows Richmond did not file a notice of appeal. Mot. to Vacate 2; see generally, Docket. Further, a search of the United States Court of Appeals for the Eleventh Circuit's Case Management/Electronic Case Files (“CM/ECF”) system does not show an appeal having been filed by Richmond. 11th Cir. CM/ECF (searching for Richmond, Raymond) (last accessed May 15, 2024). Neither does a search of Westlaw return any appellate decision related to Richmond. Westlaw Database (searching “All Federal” for “Raymond Richmond”). As a result, while Richmond may have filed a notice of appeal, none was received by this Court or the Eleventh Circuit, and the Eleventh Circuit has not issued an opinion on Richmond's alleged appeal.
The only relevant result on Westlaw when searching for “Raymond Richmond” is the Court's Order on Richmond's objections to his PSR. United States v. Richmond, No. 4:22-CR-7 (CDL), 2023 WL 4624700 (M.D. Ga. July 19, 2023); Order, July 19, 2023, ECF No. 38.
The “general rule” is that “claims not raised on direct appeal may not be raised on collateral review unless the petitioner shows cause and prejudice.” Massaro v. United States, 538 U.S. 500, 504 (2003) (first citing United States v. Frady, 456 U.S. 152, 167-68 (1982); and then citing Bousley v. United States, 523 U.S. 614, 621-622 (1998)). While this rule is not a statutory or constitutional requirement, federal courts enforce the rule “to conserve judicial resources and to respect the law's important interest in the finality of judgments.” Id. Because Richmond has not brought his sentencing claim in a direct appeal, he is barred from pursuing it in this § 2255 proceeding unless he can show cause and prejudice, or a miscarriage of justice, which is another way of saying that he is actually innocent. McKay v. United States, 657 F.3d 1190, 1196 (11th Cir. 2011) (citing Lynn v. United States, 365 F.3d 1225, 1234 (11th Cir. 2004) (per curiam)).
One important caveat, discussed in more detail, infra: ineffective assistance of counsel claims do not need to be brought on direct appeal before being asserted in § 2255 proceedings. Massaro, 538 U.S. at 509 (holding “that failure to raise an ineffective-assistance-of-counsel claim on direct appeal does not bar the claim from being brought in a later, appropriate proceeding under § 2255.”).
For the exception for cause and prejudice to apply, Richmond must show “cause for not raising the claim of error on direct appeal and actual prejudice from the alleged error.” Id. (citing Lynn, 365 F.3d at 1234). Richmond has not addressed either cause or prejudice, so the first exception does not apply. Under the miscarriage of justice exception, Richmond must show “factual innocence, not mere legal insufficiency.” Bousley, 523 U.S. at 623-24 (citing Sawyer v. Whitley, 505 U.S. 333, 339 (1992)). Richmond does not argue that he is factually innocent. Rather, Richmond seeks a sentence reduction, which is inconsistent with any claim-if he had made one-of factual innocence. Mot. to Vacate 4. Because Richmond did not bring his sentencing claim on direct appeal, and he has not shown that an exception applies, he has procedurally defaulted his claim. Accordingly, it is recommended in the alternative that Richmond's sentencing claim be denied because it is procedurally defaulted.
B. Ineffective Assistance of Counsel
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 v. Washington, 466 U.S. 668, 687 (1984); Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000). However, 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, 466 U.S. at 689).
To establish deficient performance, a petitioner bears the burden to 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). 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 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). 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). The burden when bringing an ineffective assistance claim “is not insurmountable” but it “is a heavy one.” Chandler, 218 F.3d at 1314.
To recap Richmond's ineffective assistance claims, as construed by the Court, he asserts (1) that trial counsel advised him that he would serve a lesser sentence in the range of 80 months to 115 months (“reduced sentence claim”); (2) that trial counsel failed to present mitigating evidence which would have affected his acceptance of responsibility points (“acceptance of responsibility claim”); and (3) that trial counsel failed to fully evaluate the plea bargain (“plea evaluation claim”). Mot. to Vacate 5. For the following reasons, the Court finds Richmond's ineffective assistance claims have no merit.
As to his reduced sentence claim, assuming without deciding that trial counsel advised him he would serve a sentence of 80 to 115 months, Richmond was made aware that he could not expect to receive a sentence based on trial counsel's calculations-not only in his plea agreement, which he initialed and signed, but also by the Court at his change of plea hearing. Richmond initialed the page of his plea agreement which notified him “that the Court is not bound by any estimate of the advisory sentencing range that [Richmond] may have received from [his] counsel[.]” Plea Agreement 3. In its plea colloquy, the Court asked if he understood “that the sentence [he] ultimately receive[s] may be different from any estimated sentence that has been provided to [him] by [his] lawyer,” and when the Court asked if he understood that question, Richmond responded in the affirmative. Change of Plea Tr. 7. Thus, Richmond cannot show prejudice because, to the extent trial counsel advised him of his sentencing range, the Court “cured” any sentencing misconception during its plea colloquy. See Stillwell v. United States, 709 Fed.Appx. 585, 589-90 (11th Cir. 2017) (per curiam) (citing Barker v. United States, 7 F.3d 629, 633 (7th Cir. 1993), for the proposition that the district court's colloquy “cured” any misinformation from counsel as to plea consequences, so the § 2255 petitioner failed to demonstrate prejudice on his ineffective assistance claim).
As to his acceptance of responsibility claim, Richmond cannot show prejudice because he received all three points available for acceptance of responsibility. Revised Final PSR ¶¶ 27-28, ECF No. 34 (awarding 3 points for acceptance of responsibility, and showing a total offense level of 27); Statement of Reasons 1, ECF No. 40 (adopting without change the presentence investigation report, and showing a total offense level of 27). Thus, even assuming trial counsel failed to present mitigating evidence that would have affected Richmond's acceptance of responsibility points, he received all the points available, and he cannot show prejudice.
Finally, Richmond's plea evaluation claim is also without merit. Had Richmond been convicted of his crimes at trial, he was facing an advisory guideline range of 151 to 188 months, to be followed by a consecutive mandatory minimum term of 5 years imprisonment up to life. Revised Final PSR ¶ 69, ECF No. 34. Under the plea agreement, however, Richmond's guideline range was 120 months, and his sentence could be run concurrently, partially concurrent, or consecutively to any other sentence. Id. ¶ 68. At his change of plea hearing, the Court noted that Richmond had been indicted “as a drug dealer and gun possessor who is a felon” and the Government “let him walk on all the drug dealing charges.” Change of Plea Tr. 19, ECF No. 43. The plea agreement Richmond received was so favorable to him, the Court told him that he “ought to pat your attorney on the back. He got you a good deal here. You understand that don't you?” Id. To which Richmond responded, “[y]es, sir.” Id. As a result, Richmond cannot show deficient performance. Accordingly, it is recommended that Richmond's ineffective assistance claims 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. Richmond 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 Richmond's motion to vacate (ECF No. 41) under 28 U.S.C. § 2255 be dismissed, or in the alternative, be denied as to his sentencing claim, and it be denied as to his ineffective assistance claims. 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.