Opinion
CR No. 00-291-4, Civil No. 01-2239
July 17, 2002
MEMORANDUM OF DECISION
Presently before the Court is the Motion of Isaac Tillman filed under 28 U.S.C. § 2255 contending that his counsel, at sentencing, was ineffective for failing to file a sentencing departure motion under § 5H1.4 of the Sentencing Guidelines.
BACKGROUND
On June 12, 2000, Defendant pleaded guilty to seven Counts of Hobbs Act conspiracy in violation of 18 U.S.C. § 1951 (Counts 4, 10, 13, 16, 19, 22, and 25), and two Counts of use of a weapon in relation to the robberies in violation of 18 U.S.C. § 924(c) (Counts 24 and 27). Pursuant to a plea agreement, the Government moved to dismiss the seven substantive Counts of Hobbs Act robbery (Counts 5, 11, 14, 17, 20, 23, and 26). In accordance with the plea agreement, the Defendant agreed to cooperate with the Government in the criminal investigation of other individuals. As a result of the Defendant's cooperation, the Government filed a Motion for Downward Departure requesting that this Court depart from the statutory mandatory minimum pursuant to 18 U.S.C. § 3553(e) and from the Guidelines pursuant to § 5K1.1 of the Sentencing Guidelines.
The Court adopted the factual findings and guideline application in the August 29, 2000 revised Pre-Sentence Investigation Report which found a total offense level of 31 and a criminal history category of II for a sentencing guideline range of 121 to 151 months on the Hobbs Act Counts. The two weapons counts carried additional mandatory minimum sentences of 384 months (seven years and 25 years, respectively) consecutive to all other sentences in accordance with 18 U.S.C. § 924(c)(10(A) and 18 U.S.C. § 924(c)(1)(C). The Defendant's total sentencing exposure was 505 months to 535 months.
On April 23, 2001, this Court granted the Government's Motion for Downward Departure from the Sentencing Guidelines and the mandatory minimum and sentenced Tillman to 100 months imprisonment. As the Government points out, instead of receiving a sentence of at least 42 years and 1 month, Tillman received a reduction of almost 34 years in prison. By contrast, Tillman's co-defendant, who was equally culpable, but was convicted by a jury, received a sentence of over 213 years imprisonment.
INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM
The legal standard applicable to petitioner's ineffective assistance of counsel claim is that articulated in Strickland v. Washington, 466 U.S. 668, 687 (1984); see also United States v. Gray, 878 F.2d 702, 709-13 (3d Cir. 1989); Diggs v. Owens, 833 F.2d 439, 444-445 (3d Cir. 1987), cert. denied, 485 U.S. 979 (1988). In Strickland, the Supreme Court created a two-pronged test that a defendant must satisfy before his conviction will be overturned based on ineffective assistance of counsel:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial whose result is reliable.Strickland, 466 U.S. at 687.
In assessing an attorney's performance, courts must be "highly deferential", and must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption, under the circumstances, that the 'challenged action might be considered sound trial strategy'". Id. At 689 (citing Michel v. Louisiana, 350 U.S. 91, 101 (1955)). In Strickland, the Supreme Court cautioned that the courts must be careful to avoid second guessing counsel's decisions from the vantage point of hindsight. Id. At 689.
The Supreme Court clarified the second prong of the Strickland standard, the prejudice component, in Lockhart v. Fretwell, 113 S.Ct. 838 (1993). Lockhart held that to prove prejudice, a defendant must show that "the result of the proceeding was fundamentally unfair or unreliable."Id. At 844.
The Court was well aware that the Defendant had had cancer and that it was in remission. The Court was made aware of this through a pre-trial motion filed by Mark Wilson, Esquire, by a Sentencing Memorandum filed by Mr. Wilson, and from the revised Pre-Sentence Investigation Report at Paragraph 103, which states:
Physical Condition
103. The subject stands 5' 10" tall and weighs 165 pounds. He has brown hair and brown eyes. Diagnosed in 1997 with a cancerous nodule in his chest, he had the nodule removed in 1997. Soon thereafter he underwent chemotherapy for 6 months. He noted that the cancer was in remission but his lymph nodes are again swollen. He takes no medications but pleaded for a check up on his cancer while incarcerated.
The current motion does not deny this, but contends that counsel was ineffective for not filing a formal motion for downward departure under § 5H1.4 of the Sentencing Guidelines, which states:
Physical condition or appearance, including physique, is not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range. However, an extraordinary physical impairment may be a reason to impose a sentence below the applicable guideline range; e.g., in the case of a seriously infirm defendant, home detention may be as efficient as, and less costly than, imprisonment.
The notion that a past history of cancer, that is in remission, would constitute "an extraordinary physical impairment" as used in the Sentencing Guidelines, is without merit. It is even more so in view of the fact that the episode of cancer, its treatment and its remission, all occurred prior to the crime spree for which Tillman is currently imprisoned. See Defense Motion filed July 20, 2000, Dkt. No. 62, ¶ 2. I recognize that I would have had the power to grant a downward departure, but I would have declined to exercise that discretion under the facts and circumstances of this case.
I find that failure to raise such a motion under the circumstances of this case cannot be considered an "error" under the Strickland test.
In the Memorandum that accompanied the current Motion, Defendant uses the term "alleged remission" hinting, I suspect, that maybe the cancer was not in remission at the time of sentence. That has never been questioned. On July 20, 2000, then counsel, Mark Wilson, Esquire, filed with the Court Defendant Isaac Tillman's Request for Transfer to Bureau of Prison's Medical Facility for Physical Evaluation and any Necessary Treatment. Four days later, on July 24, 2000, this Court signed an Order granting that request. A report received from the Bureau of Prisons Medical Center for Federal Prisoners in Springfield, Missouri indicated that Mr. Tillman was there from August 31, 2000 to November 17, 2000. The final diagnosis in that report was "history of germ cell carcinoma with no evidence of disease at this time". A copy of that report is attached to this Memorandum.
For all of the above reasons, I enter the following Order.
ORDER
AND NOW, this 17th day of JULY, 2002, upon consideration of the Motion of Isaac Tillman filed under 28 U.S.C. § 2255, said Motion is DENIED with prejudice. There is no cause to issue a Certificate of Appealability.
ORDER
AND NOW, this 17th day of JULY, 2002, it is hereby ORDERED that the attached Memorandum and Order are filed under Seal.