Opinion
CIVIL ACTION NO. 14-0315-KD-C CRIMINAL NO. 12-0090-KD-C
05-08-2015
ZERRICK C. ROBINSON, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
REPORT AND RECOMMENDATION
Petitioner, Zerrick C. Robinson, has filed a motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 (Doc. 108). This action has been referred to the undersigned for entry of a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). Following consideration of all relevant pleadings in this case, it is recommended that Robinson's § 2255 motion be DENIED.
FINDINGS OF FACT
On April 26, 2012, Robinson was charged in a three-count indictment—along with two co-defendants—with conspiracy to use and carry a firearm in furtherance of and to possess a firearm in connection with a crime of violence (kidnapping) in violation of 18 U.S.C. § 924(o); kidnapping in violation of 18 U.S.C. § 1201(a)(1); and knowingly using, carrying and brandishing a firearm in connection with and in furtherance of a crime of violence (here, kidnapping). (Doc. 1, at 1-4.) Robinson admitted during his July 18, 2012 guilty plea proceeding that the government would be able to prove all three charges and, more specifically, that the government could prove that he and his co-defendants unlawfully entered the residence of DH and AE in Chickasaw, Alabama on November 26, 2011, and during their attempt to steal money and drugs from an individual they suspected was a drug dealer, they shot him and kidnapped his girlfriend (AE) and during her abduction used cellphones to demand additional monies or drugs in exchange for her safe return; that his co-defendants implicated him in the transaction involving DH and AE, as well other incidences as part of their scheme to rob drug dealers and steal drugs and money while armed; and that the defendant was a convicted felon armed with a weapon or weapons which traveled in interstate commerce during the above-referenced incidences. (See Doc. 113, Exhibit 1, Guilty Plea Transcript, at 10-12; see also Doc. 56, Attached Factual Resume, at 2-20.)
W. Gregory Hughes, Esquire, who was appointed to represent the defendant on May 23, 2012, initially represented Robinson in this case. (Doc. 18.) A conflict of interest ultimately led to Mr. Hughes' withdrawal (compare Doc. 36 with Doc. 43). Prior to the withdrawal, however, Hughes sought funds to employ an expert for a psychological evaluation and/or testimony. (Doc. 29; see id. at ¶¶ 1 & 2 ("The Defendant is 27 years old and cannot read or write. He completed the 6th grade in special education classes. He then went for two [] years to the Continuing Learning Center. [] In order to properly represent the Defendant at trial and/or sentencing, the Defendant requires a psychological evaluation that can be performed by Dr. Bennett locally.").) The defendant's motion for funds was granted (see Doc. 35) and the record makes clear that Dr. Bennett psychologically evaluated Robinson in June of 2012 (compare Doc. 77, ¶ 139 ("Robinson also reported that his lawyer in the instant offense had a psychiatrist visit him at Mobile Metro Jail during June 2012.") with Doc. 110, Sentencing Transcript, at 5-6 (defense counsel references evaluation performed by Dr. Bennett)).
Robinson signed both the plea agreement (Doc. 56, at 14) and the attached factual resume (see Doc. 56, Attached Factual Resume, at 21.)
During his change of plea hearing, Robinson informed the Court that he completed the sixth grade and could read and write a "little bit[]" but indicted he understood the proceedings. (Doc. 113, Exhibit 1, Guilty Plea Transcript, at 4.) Robinson stated that his attorney read the plea agreement to him and explained it; indicated he was fully satisfied with his attorney's advice and representation; and also informed the Court that he had never been treated for any mental illness. (Id. at 5.) The defendant acknowledged his understanding that in exchange for pleading guilty to all indicted charges, the government would recommend a low-end guidelines sentence and, further, because he had substantially cooperated with the government, that the government was going to further recommend that the Court "go below those guidelines." (Id. at 6.) After Robinson agreed that the government could prove the facts proffered by the government, as more specifically outlined above (id. at 12; see also id. at 10-12), the following occurred:
THE COURT: . . . Do you have any hesitation that your client is competent and understand[s] what's going on?(Id. at 13.)
ATTORNEY HARRELL: Judge, I have no question at all. I have made - I think[,] about five trips to the metro jail. I have had no trouble at all communicating with Mr. Robinson[,] going over the evidence, none whatsoever.
THE COURT: Mr. Robinson, how do you plead?
THE [DEFENDANT]: Guilty.
THE COURT: It is the finding of the Court in this case, the United States versus Zerrick Charles Robinson, that the Defendant is fully competent and capable of entering an informal plea. The Defendant is aware of the nature of the charges and the consequences of the plea, that the plea of guilt is a knowingly and voluntarily plea supported by an independent base of the facts, containing each of the essential elements of the offense[s], the plea is accepted and you're adjudicated guilty of Counts 1, 2 and 3.
The confidence exuded by defense counsel at the guilty plea proceeding relative to Robinson's competency to plead guilty is explained more fully during the course of Robinson's June 28, 2013 sentencing proceeding. (See Doc. 110.) Defense counsel specifically referenced the mental evaluation performed by Dr. Bennett and explained to the Court that although that evaluation did not rise to the level for requesting a competency examination under 18 U.S.C. § 4241 (see id. at 6 ("[T]he evaluation [by Dr. Bennett] did not rise to where we could argue for a mental evaluation[.]")) and the assertion of an insanity defense, the defendant was requesting further downward departure with respect to his sentence on account of his mental condition, namely his mild mental retardation (a 69 IQ) (id.). After hearing from counsel for the defendant (id. at 5-6), the defendant himself (id. at 7 ("I want to apologize to the Court and say I'm sorry, Your Honor, that . . . being a father at this time in my life and I'm sorry [] for my mistakes and my background. I want to apologize to the Court and to the district attorney and to my mother that I'm sorry for this situation.")), and the Assistant United States Attorney (id.), the trial court sentenced Robinson to "a total of 30 years, which is 276 months as to Counts 1 and 2, and then the mandatory 84 months for Count 3, for a total of 360 months." (Id. at 8-9.)
Section 4241(a) provides that "[a]t any time after the commencement of a prosecution for an offense and prior to the sentencing of the defendant, . . . the defendant or the attorney for the Government may file a motion for a hearing to determine the mental competency of the defendant." Id.; see also id. ("The court shall grant the motion, or shall order such a hearing on its own motion, if there is reasonable cause to believe that the defendant may presently be suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense.").
Rule 12.2(a) of the Federal Rules of Criminal Procedure requires "[a] defendant who intends to assert a defense of insanity at the time of the alleged offense" to "notify an attorney for the government in writing within the time provided for filing a pretrial motion," and to "file a copy of the notice with the clerk." Id.
The United States Attorney requested a sentence of 384 months, that is, 32 years imprisonment. (See id.)
I have considered the guidelines, and I have departed based on your substantial cooperation as to Counts 1 and 2. I've considered . . . your mental abilities but determined that that is not an appropriate basis for a downward departure in this case.(Id. at 9-10.)
A notice of non-appeal was filed on July 12, 2013. (Doc. 104.) On June 27, 2014, Robinson filed the pending motion to vacate pursuant to 28 U.S.C. § 2255 (Doc. 108, at 13) and asserts that he was denied effective assistance of counsel, as follows: (1) counsel failed to conduct an independent investigation into his mental condition at the time of the offenses and criminal proceedings and failed to raise an insanity defense, which was the only plausible defense; and (2) counsel did nothing to raise the issue of his severe mental disease or defect at sentencing and had he done so there is a reasonable probability that he would have received a "lesser term of imprisonment." (Doc. 108, at 4 & 5.) In addition, petitioner claims that his sentence should be vacated inasmuch as it constitutes cruel and unusual punishment since he has the IQ of a 5-year-old and this country does not incarcerate 5-year-olds. (Id. at 7.)
Robinson did not sign this document; however, Sidney M. Harrell, Robinson's attorney, initialed the form for his client. (Id.)
The government filed its response in opposition on September 30, 2014 (Doc. 113) and Robinson was twice granted 90-day extensions of time to file his reply to the government's response (see Docs. 115, 117 & 119-120). Most recently, Robinson was ordered to file his reply not later than May 4, 2015 (see Doc. 120); however, that date has come and gone without a reply from petitioner (compare id. with Docket Sheet).
CONCLUSIONS OF LAW
Section 2255 reads, in relevant part, as follows: "A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released 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, may move the court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. § 2255(a).
A. Ineffective Assistance of Counsel Standard . In this instance, petitioner's primary argument is that constitutionally ineffective assistance of counsel during pre-plea proceedings and at sentencing entitles him to the relief afforded by 28 U.S.C. § 2255. In order to establish a claim of ineffective assistance of counsel, a petitioner is required to show (1) that his attorney's representation fell below "an objective standard of reasonableness" and (2) that a reasonable probability exists that but for counsel's unprofessional conduct, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); see also Jones v. United States, 478 Fed.Appx. 536, 539-540 (11th Cir. Sept. 23, 2011) ("To make a successful claim of ineffective assistance of counsel, a defendant must show that: (1) his counsel's performance was deficient; and (2) the deficient performance prejudiced his defense."). "The burden of persuasion is on a section 2255 petitioner to prove, by a preponderance of the competent evidence, both that counsel's performance was unreasonable, and that []he was prejudiced by that performance." Demar v. United States, 228 Fed.Appx. 940, 950 (11th Cir. Jun. 21, 2007) (quotation marks, brackets and citations omitted); see also Johnson v. Alabama, 256 F.3d 1156, 1176 (11th Cir. 2001) ("The petitioner bears the burden of proof on the 'performance' prong as well as the 'prejudice' prong of a Strickland claim, and both prongs must be proved to prevail."), cert. denied sub nom. Johnson v. Nagle, 535 U.S. 926, 122 S.Ct. 1295, 152 L.Ed.2d 208 (2002).
"Unpublished opinions are not considered binding precedent, but they may be cited as persuasive authority." 11th Cir. R. 36-2.
It is proper in considering claims made by a federal prisoner under § 2255 to look for guidance from cases discussing claims raised by state prisoners under 28 U.S.C. § 2254. See Hagins v. United States, 267 F.3d 1202, 1205 (11th Cir. 2001) (citing Holladay v. Haley, 209 F.3d 1243 (11th Cir. 2000)), cert. denied, 537 U.S. 1022, 123 S.Ct. 545, 154 L.Ed.2d 432 (2002).
The Strickland v. Washington standard for evaluating claims of ineffective assistance of counsel was held applicable to guilty pleas in Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985). The Eleventh Circuit has held that "'counsel owes a lesser duty to a client who pleads guilty than to one who decides to go to trial, as in the former case counsel need only provide his client with an understanding of the law in relation to the facts, so that the accused may make an informed and conscious choice between accepting the prosecution's offer and going to trial.'" Carter v. United States, 288 Fed.Appx. 648, 649 (11th Cir. Aug. 4, 2008), quoting Wofford v. Wainwright, 748 F.2d 1505, 1508 (11th Cir. 1984). Moreover, in the context of sentencing following entry of a guilty plea, the court simply considers whether petitioner has established, in accordance with Strickland, supra, that his attorney was deficient and that he was prejudiced by this deficiency in performance. See, e.g., Myers v. United States, 2009 WL 1505638, *1 (W.D. Pa. May 12, 2009) ("In order for petitioner to succeed on an ineffective assistance of counsel claim, he must prove: (1) that his counsel was deficient; and (2) that he was prejudiced by his counsel's deficiency."), aff'd, 364 Fed.Appx. 769 (3rd Cir. 2010), cert. denied, ___ U.S. ___, 131 S.Ct. 1026, 178 L.Ed.2d 848 (2011).
The performance prong of the ineffective assistance standard entails a deferential review of counsel's conduct. In assessing the reasonableness of counsel's performance, courts must indulge a strong presumption that counsel's conduct falls within the wide range of
reasonable professional assistance. Thus, the Sixth Amendment does not require criminal defense attorneys to take a nothing to lose approach and raise every available nonfrivolous defense.Means v. Secretary, Department of Corrections, 433 Fed.Appx. 852, 855 (11th Cir. Jul. 12, 2011) (internal quotation marks and citations omitted; footnote added), cert. denied sub nom. Means v. Tucker, ___ U.S. ___, 132 S.Ct. 1580, 182 L.Ed.2d 198 (2012); see also Pair v. Cummins, 373 Fed.Appx. 979, 981-982 & 982 (11th Cir. Apr. 20, 2010) ("The performance prong of an ineffective assistance claim requires the petitioner to show that, considering all the circumstances, his attorney's representation fell below an objective standard of reasonableness. The standard is that of a reasonable attorney, not a paragon of the bar or an Aristotle or a Clarence Darrow. Moreover, judicial review of an attorney's performance is highly deferential, and the court must eliminate the distorting effects of hindsight and evaluate performance from the attorney's perspective at the time the challenged conduct occurred. In so doing, the court must indulge a strong presumption that the attorney's conduct was objectively reasonable. A petitioner fails to overcome that presumption if the challenged conduct might be considered sound trial strategy. . . . Pair must [also] establish prejudice. It is not enough for him to show that his counsel's deficient performance had some conceivable effect on the jury's verdict. Instead, Pair must show 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." (internal quotation marks and citations omitted)).
With respect to prejudice, courts ask whether there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.
In order to satisfy the first prong, "the petitioner must establish that no competent counsel would have taken the action that his counsel did take[.]" Hall v. Thomas, 611 F.3d 1259, 1290 (11th Cir. 2010) (quotation marks and citation omitted).
Given the two-prong nature of the test for adjudicating ineffective-assistance-of-counsel claims, it can come as no surprise that "'the cases in which habeas petitioners can properly prevail on the ground of ineffective assistance of counsel are few and far between.'" Johnson, supra, 256 F.3d at 1176 (citation omitted). When applying the Strickland standard, it is clear that courts "are free to dispose of ineffectiveness claims on either of its two grounds." Oats v. Singletary, 141 F.3d 1018, 1023 (11th Cir. 1998) (citation omitted), cert. denied, 527 U.S. 1008, 119 S.Ct. 2347, 144 L.Ed.2d 243 (1999); see also Adamson v. United States, 288 Fed.Appx. 591, 594 (11th Cir. Jul. 29, 2008) ("The defendant must satisfy both prongs of this test to show a Sixth Amendment violation; if the defendant fails to demonstrate one of these prongs sufficiently, we do not need to address the other."), cert. denied, 555 U.S. 1010, 129 S.Ct. 526, 172 L.Ed.2d 385 (2008); Butcher v. United States, 368 F.3d 1290, 1293 (11th Cir. 2004) ("[O]nce a court decides that one of the requisite showings has not been made it need not decide whether the other one has been.").
Finally, "vague, conclusory, speculative, or unsupported claims cannot support an ineffective assistance of counsel claim." Rosado v. Secretary, Dep't of Corrections, 2010 WL 2976886, *4 (M.D. Fla. Jul. 20, 2010), citing Tejada v. Bugger, 941 F.2d 1551, 1559 (11th Cir. 1991). And with these principles in mind, the undersigned now considers each of Robinson' claims of alleged ineffective assistance of counsel.
1. Insanity Defense Claim . Robinson's first contention is that counsel failed to conduct an independent investigation into his mental condition at the time of the offenses and criminal proceedings and failed to raise the only plausible defense available to him, an insanity defense (and, in his second claim, he argues that trial counsel did nothing to raise his mental disease or defect at sentencing and had he done so, there exists a reasonable possibility he would have received a lesser sentence). Initially, the undersigned notes that the evidence of record reflects the knowing and voluntary nature of petitioner's pleas of guilty (see Doc. 113, at ), see, e.g., United States v. Moriarty, 429 F.3d 1012, 1020 (11th Cir. 2005) (finding plea voluntary and knowing, in part because the defendant did "not cite, and we do not find, anything in the record indicating that he meant to plead other than guilty."); United States v. Medlock, 12 F.3d 185, 187 (11th Cir.) ("There is a strong presumption that statements made during the plea colloquy are true. . . . He does not assert that his plea was involuntarily entered or was coerced."), cert. denied, 513 U.S. 864, 115 S.Ct. 180, 130 L.Ed.2d 115 (1994), a matter (that is, the voluntary and knowing nature of the plea) which Robinson does not question in his motion to vacate (see Doc. 108); therefore, it is certainly arguable that petitioner waived an insanity defense and any claim of ineffective assistance of counsel related to his attorney's alleged failure to independently investigate and pursue such a defense (including at sentencing). Compare, e.g., Todd v. United States, 418 F.2d 134, 135 (5th Cir. 1969) ("[A] guilty plea that is understandingly and knowingly made is a waiver of all prior non-jurisdictional defects. . . . [A] plea of guilty so entered bars appellant from raising on motion to vacate the issue of insanity at the time of the offense.") with United States v. Johnson, 2014 WL 1356229, *6 (S.D. Ala. Apr. 7, 2014) ("Johnson's plea of guilty was clearly voluntary and intelligent[, and], therefore, he is precluded from collaterally attacking his plea with claims involving alleged deprivations occurring prior to plea, even claims of ineffective assistance of counsel that do not attack the voluntariness of the guilty plea.").
The Eleventh Circuit, in Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), adopted as binding precedent all decisions of the former Fifth Circuit issued before October 1, 1981. See id. at 1209.
Even if Robinson has not waived these claims of ineffective assistance of counsel, however, he is entitled to no relief because he has established neither that his counsel was deficient nor that he was prejudiced by his counsel's performance. With respect to the insanity defense claim, the undersigned notes that in Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960), the Supreme Court established the standard for determining a defendant's competency to stand trial in federal court: "whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding[] and whether he has a rational as well as factual understanding of the proceedings against him[,]" id. at 402, 80 S.Ct. at 789 (internal quotation marks omitted). "In the context of a federal habeas case brought under 28 U.S.C. § 2255, [the former Fifth Circuit established] that the Dusky test of mental competency also applies to entering a plea in a federal criminal case." Bolius v. Wainwright, 597 F.2d 986, 988 n.3 (5th Cir. 1979) (citation omitted).
The law is clear that it is a fundamental requirement of Due Process that defendants be mentally competent upon entering a guilty plea or proceeding to trial. . . . [T]he mere presence of mental illness or other mental disability at the time of trial does not necessarily mean that a defendant is incompetent under the Dusky test. The mental illness or disability must have been so debilitating that the defendant was unable to consult with his lawyer and did not have a rational and factual understanding of the proceedings.Onate-Sosa v. United States, 2011 WL 1878211, *14 (S.D. Fla. Jan. 13, 2011) (citing Bolius, 597 F.2d at 990), report & recommendation adopted, 2011 WL 1883167 (S.D. Fla. May 17, 2011). Furthermore, to meet the burden under Strickland to "demonstrate prejudice from his lawyer's failure to have him evaluated, [Robinson] has to show that there was at least a reasonable probability that a psychological evaluation would have revealed that he was incompetent to [enter a plea of guilty]." Alexander v. Dugger, 841 F.2d 371, 375 (11th Cir. 1988) (citation omitted).
Robinson has failed to show that his trial counsel was ineffective for failing to conduct an independent investigation into his mental competency and raise an insanity defense. First, "[r]elevant indicia of a defendant's incompetence include a defendant's irrational behavior, courtroom demeanor, or medical opinion." Onate-Sosa, supra, at *15, citing Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975). At the guilty plea hearing, held July 12, 2012, in response to the Court's questioning, Robinson informed the Court that even though he could only read and write a "little bit[,]" he understood the proceedings, he had never been treated for any mental illness, and that his attorney read the plea agreement to him and explained it to him and that he understood that the government had agreed to recommend a downward departure from the guidelines. (See Doc. 113, at 4-6.) Moreover, Robinson's attorney informed the Court that his client was competent and understood the proceedings as he had made five visits to see his client in jail and never had any problems communicating with him on those occasions about the case and the evidence. Thus, the only indicia of Robinson's incompetence leading up to, and during, the guilty plea (and sentencing) hearings are Robinson's current self-serving, conclusory allegations, which are rebutted by his counsel's clear statements to the Court during both referenced proceedings that Robinson was competent (Doc. 113, Exhibit 1, at 13) and that Dr. Bennett's psychological evaluation did not rise to the level necessary to request a competency examination (Doc. 110, at 6). Compare id. with Onate-Sosa, supra, at *15 ("Because it is often defense counsel who is in the best position to discover whether the defendant's competency is questionable, failure of defense counsel to raise competency is compelling evidence that the defendant's competency was not really in doubt."); see also id. at *15 (finding no right to habeas relief where allegations that a petitioner "was suffering from schizophrenia and/or a bipolar disorder, and the like which prevented him from assisting his attorney [were] wholly conclusory with no substantiation in the record other than the movant's own self-serving statements."); Thomas v. Snyder, 2001 WL 1297812, *6 (D. Del. Oct. 3, 2001) ("[D]uring his plea colloquy, Thomas stated that he understood the charges and the terms of his agreement. Thomas' rational and coherent answers which were transcribed during his plea and sentencing hearings do not demonstrate that he lacked an ability to consult with his lawyer with a reasonable degree of rational understanding or that he lacked a rational and factual understanding of the proceedings."). In addition, given that Robinson "was . . . candid when addressing the court" during the guilty plea hearing, even if his counsel had moved for a competency examination, "no showing has been made here that such an exam was warranted, nor that the court would have granted the request. Consequently, no prejudice has been established arising from counsel's failure to pursue this claim." Onate-Sosa, supra, at *15; see also id. (concluding that the petitioner was "therefore entitled to no relief on [a similar] claim").
As revealed during the sentencing proceeding, petitioner's "second" appointed attorney—the attorney who represented Robinson during both his guilty plea proceeding and at sentencing—had the benefit of the psychological evaluation of his client performed by Dr. Thomas S. Bennett, performed at the behest of petitioner's first attorney (see Doc. 29), and, based upon the conclusions reached by Dr. Bennett, specifically determined/concluded that there existed no basis to request a competency examination under 18 U.S.C. § 4241 (Doc. 110, at 6).
2. Counsel's Conduct During the Sentencing Hearing Relative to Petitioner's Mental Condition . Robinson also contends that his trial attorney did nothing to raise his "severe mental disease or defect" at sentencing and had he done so, there exists a reasonable possibility that he would have received a lesser sentence. (Doc. 108, at 5.) The evidence of record also refutes this conclusory assertion made by petitioner and, as well, the undersigned's previous analysis relative to Robinson's "insanity defense claim" applies equally to this claim and dictates denial of the claim. During the sentencing proceeding, trial counsel specifically argued that even though the evidence of petitioner's mild mental retardation did not warrant a competency evaluation, the Court could and should consider Robinson's mental condition (that is, mental retardation) as a basis for "further downward departure" from the guidelines than contemplated by the agreement with the government. (Doc. 110, at 6.) Thus, counsel was not deficient in the manner asserted by Robinson. Moreover, Robinson cannot show that he was prejudiced in this regard inasmuch as the Court specifically determined that though departure downward was being made because of his "substantial cooperation" with the government, it was determined that there was no basis for further "downward departure" based on Robinson's "mental abilities[.]" (Id. at 9-10.) Petitioner has come forward with no cases establishing that an IQ score of 69 establishes—in and of itself—a basis for downward departure by the Court and, therefore, the prejudice prong is lacking as well.
B. Cruel and Unusual Punishment Claim . Petitioner's final claim is that his 360-month sentence violates his right to due process of law under the Fifth Amendment and constitutes cruel and unusual punishment under the Eighth Amendment given the Court's recognition that he had the IQ of a 5-year-old and the federal criminal justice system "does not incarcerate five year old children for obvious reasons." (Doc. 108, at 7.) In the next breath, petitioner states that no appeal was taken from his convictions and sentences. (See id.) Therefore, it comes as no surprise that the government contends that this Court should not consider the merits of this claim since Robinson has procedurally defaulted the claim. (Doc. 113, at 7-8.)
The general rule of thumb is that claims which could have been raised on direct appeal may not be pursued in a § 2255 motion. Massaro v. United States, 538 U.S. 500, 504, 123 S.Ct. 1690, 1693, 155 L.Ed.2d 714 (2003); see also McKay v. United States, 657 F.3d 1190, 1196 (11th Cir. 2011) ("Under the procedural default rule, a defendant generally must advance an available challenge to a criminal conviction or sentence on direct appeal or else the defendant is barred from presenting that claim in a § 2255 proceeding." (internal quotation marks and citation omitted)), cert. denied, ___, U.S. ___, 133 S.Ct. 112, 184 L.Ed.2d 52 (2012). Indeed, in those cases where the defendant pleads guilty, it is clear that "'a defendant must assert an available challenge to a sentence on direct appeal or be barred from raising the challenge in a section 2255 proceeding.'" Berry v. United States, 2010 WL 883445, *3 (M.D. Fla. Mar. 5, 2010) (quoting Greene v. United States, 880 F.2d 1299, 1305 (11th Cir. 1989)), aff'd, 468 Fed.Appx. 924 (11th Cir. Mar. 22, 2012); cf. Black v. United States, 373 F.3d 1140, 1142 (11th Cir. 2004) ("Generally, if a challenge to a conviction or sentence is not made on direct appeal, it will be procedurally barred in a 28 U.S.C. § 2255 challenge . . . [unless the petitioner shows] both cause for his default as well as demonstrating actual prejudice suffered as a result of the alleged error."), cert. denied, 543 U.S. 1080, 125 S.Ct. 942, 160 L.Ed.2d 824 (2005). Defaulted claims are barred from collateral review unless the moving party is able to demonstrate cause and prejudice or that he is actually innocent of the crimes underlying his sentences. Bousley v. United States, 523 U.S. 614, 622 & 623, 118 S.Ct. 1604, 1611, 140 L.Ed. 2d 828 (1998).
At no time has Robinson made any argument that he is actually innocent of the charges lodged against him, namely, (1) that he conspired to use and carry a firearm in furtherance of and to possess a firearm in connection with a crime of violence (kidnapping), (2) that he kidnapped AE, or (3) that he knowingly used, carried, and brandished a firearm in connection with and in furtherance of a crime of violence (again, kidnapping). (See Doc. 108.)
In order to excuse a procedural default, the cause ordinarily deemed sufficient is when some external impediment has prevented "counsel from constructing or raising the claim." Murray v. Carrier, 477 U.S. 478, 492, 106 S.Ct. 2639, 2648, 91 L.Ed.2d 397 (1986). "Constitutionally ineffective assistance of counsel can constitute cause." Holladay v. Haley, 209 F.3d 1243, 1254 (11th Cir.) (citations omitted), cert. denied, 531 U.S. 1017, 121 S.Ct. 578, 148 L.Ed.2d 495 (2000). "In order to do so, however, the claim of ineffective assistance must have merit." United States v. Nyhuis, 211 F.3d 1340, 1344 (11th Cir. 2000) (citation omitted), cert. denied, 531 U.S. 1131, 121 S.Ct. 892, 148 L.Ed.2d 799 (2001). "To demonstrate prejudice, the second prong, [Robinson] 'must shoulder the burden of showing, not merely that the errors [of] his [attorney, for example] at his trial [or sentencing] created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial [court proceedings] with error of constitutional dimensions.' Brown v. United States, 720 F.3d 1316, 1333 (11th Cir. 2013) (quoting United States v. Frady, 456 U.S. 156, 170, 102 S.Ct. 1584, 1596, 71 L.Ed.2d 816 (1982)), cert. denied, ___ U.S. ___, 135 S.Ct. 48, 190 L.Ed.2d 53 (2014).
In this instance, Robinson has not filed a reply to the government's response and, therefore, has not argued, much less established, cause or prejudice for his procedural default of his sentencing claim. Accordingly, this Court is procedurally barred from reaching the merits of this claim.
Besides, the transcript of the sentencing proceeding refutes Robinson's conclusory argument that his Fifth Amendment right to due process was violated. (See Doc. 110.) And, additionally, although it is clear that "[a] sentence of death shall not be carried out upon a person who is mentally retarded[,]" 21 U.S.C. § 848(l); see also Atkins v. Virginia, 536 U.S. 304, 321, 122 S.Ct. 2242, 2252, 153 L.Ed.2d 335 (2002) ("Construing and applying the Eighth Amendment in the light of our 'evolving standards of decency,' we [] conclude that such punishment [the death penalty] is excessive and that the constitution 'places a substantive restriction on the State's power to take the life' of a mentally retarded offender."), a mentally retarded defendant in a noncapital case like the instant one still must make a threshold showing that "'the sentence imposed is grossly disproportionate to the offense committed.'" United States v. McDade, 399 Fed.Appx. 520, 524 (11th Cir. Oct. 8, 2010), quoting United States v. Reynolds, 215 F.3d 1210, 1214 (11th Cir. 2000). Robinson has made no showing whatsoever that his sentence is grossly disproportionate to the offenses committed in this case (see Doc. 180) and, indeed, his total 360-month sentence—84 months below his guideline ranges, given the mandatory consecutive 7-year sentence required by statute for using a firearm in furtherance of a crime of violence (kidnapping)—falls between the statutory minimum and maximum for kidnapping of "any term of years or for life[.]" 18 U.S.C. § 1201(a). As observed in McDade, the Eleventh Circuit "routinely recognize sentences within the statutory limits generally do not violate the Eighth Amendment, and that a defendant whose sentence falls below the statutory maximum [as here] cannot make the threshold showing of gross disproportionality." Id. at 524-525, citing United States v. Johnson, 451 F.3d 1239, 1243 (11th Cir. 2006) and United States v. Raad, 406 F.3d 1322, 1324 & n.4 (11th Cir. 2005). In addition, like the McDade court, this Court is not in a position to find that Robinson's mild mental retardation warrants a finding of gross disproportionality given Robinson's active (and "leadership-type") participation in the crimes, as described in the Factual Resume attached to the plea agreement (see, e.g., Doc. 56, Factual Resume, at 5, 7 & 7-8 ("Both victims [in the D.H./A.E. home invasion] identified Zerrick Robinson in a photo lineup as one of the home invaders. According to D.H., Robinson is the one who shot him. . . . [In the M.A. home invasion,] K.P. described the first suspect as the obvious leader of the group. He repeatedly struck K.P. and M.A. with his pistol. . . . K.P. and M.A. stated that the first suspect's mask fell down at one time, and they both saw his face. Agent Vittitow showed K.P. and M.A. photo lineups, and each picked out a photograph of Zerrick Charles Robinson as the first suspect, the one who shot M.A. Agent Vittitow did not communicate to either K.P. and M.A. whether or which photograph was identified by the other.")), and the Court's significant downward departure—below the downward departure requested by the government (compare Doc. 110, at 7 (Assistant United States Attorney specifically argued that the government's motion for departure "provides for a reasonable sentence and that the sentence of 300 months followed by the 7-year mandatory consecutive sentence [that is, a total of 384 months] is appropriate in this case for protection of the community, if nothing else.") with id. at 8-9 ("I've determined that an appropriate sentence in this case is going to be a total of 30 years, which is 276 months as to Counts 1 and 2, and then the mandatory 84 months for Count 3, for a total of 360 months.")). Having downwardly departed two years more than the departure requested by the government in light of petitioner's substantial cooperation, this Court cannot be found to have erred in considering Robinson's "mental abilities" but determining those abilities were not an "appropriate basis for a [further] downward departure in this case." (See id. at 9-10.)
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In addition to the foregoing, the undersigned finds that Robinson waived his right to collaterally attack his sentence, as reflected in his plea agreement. Robinson signed the Plea Agreement on July 10, 2012. (Doc. 56, at 14.) Per the terms of the agreement, Robinson waived his right to file any "motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255[,]" (id. at 11), except for claims of ineffective assistance of counsel (id. at 12). "It is well-settled that sentence-appeal waivers are valid if made knowingly and voluntarily." Williams v. United States, 396 F.3d 1340, 1341 (11th Cir.), cert. denied, 546 U.S. 902, 126 S.Ct. 246, 163 L.Ed.2d 226 (2005); see also United States v. Bushert, 997 F.2d 1343, 1350 (11th Cir. 1993) ("We agree with the basic reasoning of our sister circuits that sentence appeal waivers may be enforced. However, just as a guilty plea must be made knowingly and voluntarily to be effective, so must a sentence appeal waiver." (internal citation omitted)), cert. denied, 513 U.S. 1051, 115 S.Ct. 652, 130 L.Ed.2d 556 (1994). The Williams court, for the first time, determined that "a valid sentence-appeal waiver, entered into voluntarily and knowingly, pursuant to a plea agreement, precludes the defendant from attempting to attack, in a collateral proceeding, the sentence through a claim of ineffective assistance of counsel during sentencing." Id. at 1342. The Eleventh Circuit "will enforce a sentence appeal waiver if the government demonstrates either that '(1) the district court specifically questioned the defendant concerning the sentence appeal waiver during the Rule 11 colloquy, or (2) it is manifestly clear from the record that the defendant otherwise understood the full significance of the waiver.'" Lattimore v. United States, 185 Fed. Appx. 808, 810 (11th Cir. Jun. 19, 2006), quoting Bushert, supra, 997 F.2d at 1351. Therefore, when it is determined that a petitioner has knowingly and voluntarily waived his right to attack his sentence collaterally, he is barred from pursuing collateral relief under § 2255 even based on ineffective assistance of counsel at sentencing, see Patel v. United States, 252 Fed.Appx. 970, 974-975 (11th Cir. Nov. 1, 2007) (a valid sentence-appeal waiver precludes both direct appeal and collateral review of both the sentence and conviction but does not bar a claim explicitly challenging the validity of the guilty plea or the appeal waiver based on ineffective assistance of counsel), cert. denied, 553 U.S. 1087, 128 S.Ct. 2890, 171 L.Ed.2d 825 (2008), a claim (that is, challenging the validity of the guilty plea or the appeal waiver based on ineffective assistance of counsel) Robinson does not make in the instant motion to vacate. In addition to not attacking the validity of his plea or the appeal waiver, Robinson also raises no claim of ineffective assistance of counsel with respect to his claim that his 360-month sentence violates the due process clause of the Fifth Amendment and the Eighth Amendment's proscription against cruel and unusual punishment. (See Doc. 108.) Moreover, United States District Judge DuBose specifically questioned Robinson about the waiver set forth in the plea agreement and the record demonstrates that petitioner understood the significance of the waiver. (See Doc. 113, Exhibit 1, at 8.) Thus, the undersigned recommends that the Court find that the sentence-appeal waiver was knowingly and voluntarily entered in compliance with Bushert and deny petitioner the ability to collaterally attack his sentence.
C. Certificate of Appealability . In consideration of the foregoing, the Magistrate Judge recommends that the Court deny Robinson's motion to vacate, set aside or correct his sentence under 28 U.S.C. § 2255. Moreover, pursuant to Rule 11(a) of the Rules Governing § 2255 Proceedings, the undersigned recommends that a certificate of appealability in this case be denied. 28 U.S.C. foll. § 2255, Rule 11(a) ("The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant."). The habeas corpus statute makes clear that an applicant is entitled to appeal a district court's denial of his habeas corpus petition only where a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1). A certificate of appealability may issue only where "the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2243(c)(2). Here, Robinson's habeas petition is being denied both on procedural grounds without reaching the merits of the constitutional claims, such that "a COA should issue [only] when the prisoner shows . . . 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[,]" Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 1604, 146 L.Ed.2d 542 (2000), and also on the merits, such that a COA should issue only when the petitioner demonstrates "that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong[,]" id.; see also id. at 483-484, 120 S.Ct. at 1603-1604 ("To obtain a COA under § 2253(c), a habeas prisoner must make a substantial showing of the denial of a constitutional right, a demonstration that, under Barefoot, includes showing that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were 'adequate to deserve encouragement to proceed further.'"); see Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003) ("Under the controlling standard, a petitioner must 'sho[w] that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were "adequate to deserve encouragement to proceed further."'"). Inasmuch as petitioner has defaulted his Eighth Amendment sentencing claim and arguably waived his ineffective assistance of counsel claims in light of his voluntary entry of guilty pleas, a reasonable jurist could not conclude either that this Court is in error in denying the instant petition or that Robinson should be allowed to proceed further regarding this claim, Slack, supra, 529 U.S. at 484, 120 S.Ct. at 1604 ("Where a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further."). In addition, it is recommended that the Court find that reasonable jurists could not debate whether Robinson's § 2255 habeas petition should be resolved in a different manner or that the issues presented are adequate to deserve encouragement to proceed further. Accordingly, petitioner is not entitled to a certificate of appealability with respect to any of his claims.
Rule 11(a) further provides: "Before entering the final order, the court may direct the parties to submit arguments on whether a certificate should issue." If there is an objection to this recommendation by either party, that party may bring this argument to the attention of the district judge in the objections permitted to this report and recommendation. Brightwell v. Patterson, CA 11-0165-WS-C, Doc. 14 (Eleventh Circuit order denying petitioner's motions for a COA and to appeal IFP in a case in which this Court set out the foregoing procedure); see also Castrejon v. United States, 2011 WL 3241817, *20 (S.D. Ala. Jun. 28, 2011) (providing for the same procedure), report and recommendation adopted, 2011 WL 3241580 (S.D. Ala. Jul. 29, 2011); Griffin v. DeRosa, 2010 WL 3943702, at *4 (N.D. Fla. Sept. 20, 2010) (providing for same procedure), report and recommendation adopted sub nom. Griffin v. Butterworth, 2010 WL 3943699 (N.D.Fla. Oct. 5, 2010).
CONCLUSION
The Magistrate Judge is of the opinion that petitioner's rights were not violated in this cause and that his request to vacate, set aside or correct his sentence (Doc. 108) should be DENIED. Petitioner is not entitled to a certificate of appealability and, therefore, he is not entitled to appeal in forma pauperis.
NOTICE OF RIGHT TO FILE OBJECTIONS
A copy of this report and recommendation shall be served on all parties in the manner provided by law. Any party who objects to this recommendation or anything in it must, within fourteen (14) days of the date of service of this document, file specific written objections with the Clerk of this Court. See 28 U.S.C. § 636(b)(1); FED.R.CIV.P. 72(b); S.D.ALA. L.R. 72.4. The parties should note that under 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." 11th Cir. R. 3-1. In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the Magistrate Judge's report and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the Magistrate Judge is not specific.
DONE this the 8th day of May, 2015.
s/ WILLIAM E. CASSADY
UNITED STATES MAGISTRATE JUDGE