Case Information
*1 IN THE LINITED STATES DISTRICT COURT FORTHE SOUTHERN DISTRICT OF GEORGIA AUGUSTA DIVISION
ROGER GAMBREL.
Petitioner,
c v 1 1 2 - 1 2 6 (Formerly CR 109-003) UNITED STATES OF AMERICA,
Respondent. MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
Petitioner, an inmate confined to federal custody at FCI Butner Low in Butner, North Carolina, has filed with this Court a motion under 28 U.S.C. $ 2255 to vacate, set aside, or correct his sentence. This case is now before the Court on Respondent's motion to dismiss Petitioner's $ 2255 motion. (Doc.no.3.) Petitioner opposes the motion. (Doc.no.4.) For the reasons set fofih below, Respondent's Motion to Dismiss should be GRANTED.
T. BACKGROUND
On January 7,2OO9, a federal grand jury indicted Petitioner on three counts: (1) transpofiation ofchild pornography, in violation of 18 U.S.C. $ 2252A(aXl); (2) receipt ofchild pornography, inviolation of21 U.S.C. g 2252A(a)(2); and, (3) possession ofchild pomography, in violation of 18 U.S.C. $ 2252A(a)(5)(B). United States v. Gambrel, CR 109-003, doc. no. I (S.D. Ga. Jan. 7 ,2009) (hereinafter "CR 109-003"). The indictment also included a forfeiture allegation, providing that ifPetitioner was convicted for any count in the indictment, he would forleit properly used or intended to be used in committing the offense, as well as property traceable to such property. Id.
Thereafter, pursuant to a written plea agreement, Petitioner pled guilty to the second count, receipt of child pomography. Id., doc. no. 31. Petitioner's plea agreement included a broad appeal and collateral attack waiver provision that stated in relevant part:
Understanding that 18 U.S.C. $ 3742 provides for an appeal by a defendant of the sentence under ceftain circumstances, as a parl of this agreement and in consideration for the govemment's promises hereunder, to the maximum extent permitted by federal law, the defendant voluntarily and expressly rvaives the riglrt to appeal the conviction and sentence and the right to collaterally attack the sentence in any post-conviction proceeding, including a g 2255 proceeding, on any ground, except that: the defendant may file a direct appeal ofhis sentence if it exceeds the statutory maximum, and the defendant may file a direct appeal ofhis sentence if, by variance or upward departure, the sentence is higher than the advisory sentencing guideline range as found by the sentencing court.
Id. at 6. Furthermore, by signing the plea agreement, Petitioner represented that he understood that:
[T]he U.S. Probation Office will prepare a presentence investigation report for the Court, and that the U.S. Probation Office will consider all of defendant's conduct related to the offense to which he is pleading, as well as the defendant's criminal history and thatthese facts will be consideredbythe Cou( in determining the defendant's sentence.
Id. at 8-9. By signing it, Petitioner attested that he had read and understood the plea agreement and that the plea agreement accurately set forth the terms and conditions ofhis agreement with the goverament. Id. at 13.
The Honorable J. Randal Hall, United States District Judge, held a Rule 1 I hearing on June 5, 2009. During that hearing, Judge Hall conducted questioning to determine whether Petitioner was competent to plead guilty. Id., doc. no. 60, pp. 5-8 (transcript ofRule 1 t hearing). Judge Hall explained the rights that Petitioner would waive by pleading guilty, including the right to plead not guilty and have the govemment carry its btnden ofproofon his guilt at ajury trial, and Petitioner affirmed he clearly understood those rights. Id. at 8-l l. Judge Hall asked *3 Petitioner whether he was satisfied with the help that he received from retained counsel, Jacque Hawk, to which Petitioner answered, "Yes, sir." Id.
Next, Judge Hall proceeded to review the entire indictment, explaining the charges and the conduct forming the basis of each charge. Id. at 11-13. Petitioner testified that he understood the contents ofthe indictment. Id.at14. Judge Hall then reviewed the elements of Count Two, to which Pstitioner was pleading guilty:
First, that [Petitioner] knowingly received electronic images containing child pomography.
Second, that the child pornography was transported, via computer, in interstate and foreign commerce and was produced using materials that traveled in interstate and foreign commerce. the child pomography,
And, third, that at the time [Petitioner]possessed [he] believed it contained at least one minor engaged in the sexually explicit conduct.
Id. at 14. When Judge Hall asked Petitioner ifhe understood that the govemment would have to prove these elements to convict him, Petitioner responded, "Yes, sir. " Id. at l 4- 1 5 .
Judge Hall also explained at the Rule I I hearing that the statutory mandatory minimum sentence for Petitioner's crime was five years of imprisonment, and that the maximum was twenty years, along with a fine ofup to $250,000.00, a supervised release term offive years to life, and a special assessment of$100.00. Id.at15. When Judge Hall asked Petitioner whether he understood the penalties, Petitioner responded, 'Yes, sir." Id. at 16. Moreover, Judge Hall explained the role of the United States Sentencing Guidelines ('U.S.S.G."), emphasizing that "they are not mandatcry; they are advisory." Id. at 16. After Judge Hall explained the advisory nature of the U.S.S.G., he further advised Petitioner that'1he probation office will conduct an investigation into yourcrime. What we call aPrssentence Investigation. Your background, your crime and other factors" and "[a]s a result ofthat, theywill determine an appropriate sentencing guideline range." Id. at 16. Judge Hall then asked Petitioner whether he was familiar with the *4 guidelines and had discussed them with counsel, to which Petitioner responded "Yes. sir." Id. at 16. Judge Hall also asked Petitioner whether "anyone promised you or represented to you or made a prophesy orprediction that you could receive a specific sentence in this case?" Id. at l6- I 7. Under penalty of perjury, Petitioner responded, 'No, sir." Id. at 17.
Next, Judge Hall summarized the terms of Petitioner's plea agreement and explained to Petitioner that he had agreed "to waive the right to directly appeal [his] conviction and sentence and to file an appeal in connection with a post conviction process like a Habeas Corpus proceeding," subject to the two limited situations provided for in the plea agreement. Id. at 17- 18. Judge Hall asked if Petitioner understood those rights and still wished to waive his post- conviction rights, and Petitioner responded, "Yes, sir." Id. Petitioner lirrther testified that he read and discussed the plea agreement with counsel before he signed it. Id. at 19.
Petitioner also averred, in response to a question asked by Judge Hall, that no one had "fcrce[d]" or "require[d]" him to come to court to plead guilty, and that no one had "promisefd] [him] anything to induce [him]" to do so. Id. at 5. He furlher swore that, "[o]rher than the promises made in that plea agreement," no one from the government "made any promise to [him] regarding the outcome of[his] case." Id. at 19-20. Judge Hall then asked ifPetitioner still wanted to plead guilty to Count Two, to which Petitioner responded, "Yes, sir." Id. at 20. Petitioner also averred, in response to a question from Judge Hall, that he was pleading guilty because he was "in fact, guilty[.]" Id. Judge Hall thus found that Petitioner was competent, that he fully understood the charges against him, and that he "offered his plea of guilty as a matter ofhis own free choice, without any other coercion or other influence," and Judge Hall approved the plea agreement. Id. at 21-22-
In addition, Special Agent Brian Ozden with the Federal Bureau of Investigation *5 provided testimony as to the factual basis for the plea, the truth ofwhich Petitioner confirmed. Id. at 22-27 . Petitioner then briefly explained his conduct to Judge Hall. kL at 28-29. When Petitioner was finished, Judge Hall asked him how he wished to plead, and Petitioner answered, "I'm guilty, sir." Id. at29. Judge Hall specifically asked ifPetitioner was "guilty as charged in Count Two of the indictment," to which Petitioner answered, 'Yes, sir." Id. At the conclusion ofthe Rule I I colloquy, Judge Hall accepted Petitioner's guilty plea. Id.
After the Rule I t hearing, the United States Probation O{fice prepared a presentence investigation report ("PSI"). The PSI provided for a base offense level of 22 and several enhancements: ( I ) two points because the offense involved a minorunder age 12; (2) five points because the offense involved distribution for receipt ot expectation ofreceipt ofa thing ofvalue; (3) four points because the offense involved violent material; (4) two points because the offense involved the use ofa computer; and, (5) five points because the offense involved more than 600 images. PSI tftl22-27. Petitionet' s resulting total offense level was 40 and his criminal history category was I. Id.fltT35,38. Pursuant to the sentencing guidelines, the range for imprisonment for Petitioner was 292 to 365 months, but because the statutory maximum of 240 months was less than the minimum applicable guideline range, the guideline sentence was 240 months pursuant to U.S.S.C. $ 5G1.1(a). Id. flfl 56-57.
At Petitioner's sentencing hearing, which was held on December 2,2OO9, Judge Hall found, consistent with the PSI, that Petitioner had a total offense level of40 and a criminal history category of I, which resulted in the statutory maximum sentence of 240 months imprisonment. five years to life supervised release, $25,000.00 to $250,000.00 fine, and a $100.00 special assessment. CR 109-003, doc. no. 61, pp. 27-28 (transcript of sentencing hearing). Judge Hall then sentenced Petitioner to serve the statutory maximum 240-month term *6 of imprisonrnent, fined him $2,000.00, and ordered him to pay a special assessment of $ 100.00 and to be placed on supervised release for life. Id. at 60-62.
OnDecember11,2009,Petitionerfiledaprosenoticeofappeal.rId.,doc.no.43. In an Order dated September 2, 2010, the Court ofAppeals granted Petitioner leave to proceed IFP on appeal, and advised Mr. Hawk that he was obligated to continue representing Petitioner.2 k!=. doc. no. 53. On June 1,201 I, the Eleventh Circuit alfirmed Petitioner's conviction and sentence. United States v. Gambrel,427 F. App'x861,867 (llthCir.2011) Qter curiam). ln the opinion, the Court ofAppeals noted that Mr. Hawk had filed a briefpursuant to Anders v. California,336 U.S. 738 (1976),' and the Court stated that its "independent review ofthe entire record reveals that counsel's assessment ofthe relative merit ofthe appeal is correct" and that an "independent examination of the entire record reveals no arguable issues ofmerit." !!
Petitioner then timely filed the instant $ 2255 motion. (Doc. no. 1, pp. 1,31.) Petitioner rIn a letter in the record dated Novernber 22, 2010, Petitioner alleged that he filed the notice ofappealpro se because Mr. Hawk would not. See CR 109-003, doc. no. 62, p. 2.
2Petitioner includes as an attachment a letter from Mr. Hawk, dated October 13, 2010, in which Mr. Hawk explained that "[d]espite [his] best efforts to get [Petitioner] an independent counsel to brief [Mr. Hawk's]own ineffectiveness, the Court ofAppealshas denied therequest." (Doc. no. 1, p. 36.) According to other attachments to his g 2255 motion, Petitioner then submitted motions for an extension oftime to frle his briefand for appointment ofnew counsel. gd. at 42-46,47-50.) In an Order dated January 5, 2011, the Court of Appeals denied Petitioner's motions to dismiss Mr. Hawk and have replacement counsel appointed, as well as his motion lbr an extension of time, and Mr. Hawk was again advised of his obligation to continue representing Petitioner. CR 109-003, doc. no. 64.
3Petitioner submitted an apparent copy of Mr. Hawk's Anders motion and brief with his $ 2255 motion. (See doc. no. 1, pp. 51-66.) In the motion, Mr. Hawk argued that he had "conscientiously examined the record and proceedings" and found that "any appeal in the case would be wholly frivolous," but he also submitted a brief"which refers to any'thing in the record that might arguably suppot an appeal." (d. at 51.) In the briel Mr. Hawk argued on Petitioner's behalf that trial counsel Mr. Hawlg himself - was ineffective for conceding Petitioner's guilt at an early stage "as a strategy to hopefully lessen his sentence." (Id. at 63.) *7 raises four grounds for relieftherein:o (1) his counsel provided ineffective assistance in that he: (a) "prematurely'' advised Petitioner to plead guilty and coop€rate with the govemment; (b) failed to review the indictment and plea agreement and explain Petitioner's rights to him; and, (c) failed to explain the ramifications ofPetitioner's pro-sentence interview with the Probation Department and allowed the interview to takeplace before Petitioner entered his guiltyplea; (2) his guilty plea was not knowing or voluntary; (3) he received ineffective assistance ofcounsel resulting in an "unreasonable" sentence; and, (4) his counsel "abandoned" him on direct appeal. (!qgid. at4-19.) In its motion to dismiss, Respondent contends that Petitioner's $ 2255 motion should be dismissed because his claims are either baned by the collateral attack waiver in his plea agreement or otherwise lack merit. (See senerally doc. no. 3.) Petitioner filed a response to the motion to dismiss. (Doc. no. 4.) The Court resolves the matter as follows.
II. DISCUSSION
A. No Need For Evidentiary Hearing
Petitioner requests an evidentiaryhearing in his $ 2255 motion. (Doc. no. 1,pp.21-23.) With regard to that request, the Eleventh Circuit has recognized that an evidentiary hearing "is often required for development ofan adequate record" for effective assistance claims. Vick v. '708 United States, 730 F.2d 7O7, (11th Cir. 1984). Nonetheless, this general rule does not require the Court to hold an evidentiary hearing every time an ineffective assistance ofcounsel clairn is raised. Id. Stated another way, "A hearing is not required on patently fiivolous clairns or those which are based upon unsupported generalizaticns. Nor is a hearing required where the petitioner's allegations are affirmatively contradicted in the record." Holmes v. United States,
aPetitioner's fifth pro ffered ground is not a separate ground forrelief, but rather arequest for an evidentiary hearing on his $ 2255 motion. (Sgg doc. no. I, pp.21-23.) *8 8'76F.2d 1545, 1553(1lthCir. 1989). Moreover, a petitioner is not entitled to an evidentiary hearing where he asserls only conclusory allegations. Lvnn v. United States, 365 F.3d 1225. 1238-39 (t lth Cir. 2004); see also Tejada v. Dueeer,941 F.2d 1551, 1559 (1 lth Cir. l99l) (noting that petitioner is not entitled to an evidentiary hearing if his claims "are merely conclusory allegations unsupported by specifics or contentions that in the face ofthe record are wholly incredible").
As described in detail below. the Court finds that Petitioner's claims are baned from review, lack merit as a matter of law, or are otherwise allrmatively contradicted by the record. Thus, no evidentiary hearing is necessary in this case. Accordingly, Petitioner's request for an evidentiary hearing should be denied.
B. Effect Of Collateral Attack Waiver In The Plea Agreement 1 Knowing and Voluntary Nature of Waiver It is well settled that a waiver of the right to collaterally attack a sentence is only enforceable if the waiver is knowing and voluntary. United States v. Weaver,275 F.3d,1320, 1333 (l lth Cir. 2001); United States v. Busherr,997 F.2d,1343, 1345 (llth Cir. 1993).5 "To establish the waiver's validity, the govemment must show either that (1) the district court specifically questioned the defendant about the provision during the plea colloquy, or (2) it is manifestly clear from the record that the defendant fully understood the significance of the waiver." Weaver, 2'7 5 F.3d at 1333. Thus, if the government meets this burden in the instant case, then the appeal and collateral attack waiver provisions ofPetitioner's plea agreement are enforceable. See United States v. Pease, 240 F.3d, 938, 942 (11th Cir. 2001) (per curiam)
'Case law conceming waiver of a direct appeal has also been applied to waiver ofthe right to collateral proceedings. $99 Bushert,99'7 F.2dal1345; see also Vaca-Ortiz v. United States, 320 F. Supp. 2d 1362, \365-67 (N.D. Ga. 2004).
(enforcing waiver provision where defendant was specifrcally questioned during plea proceedings about waiver); United States v. Hcwle, 166 F.3d I166, 1168-69 (l lth Cir. 1999); United States v. Benitez-Zapata, l3l F.3d 1444,1146-47 (l lth Cir. 1997).
Here, Respondent has met its burden in demonstrating the existence ofa valid collateral attack waiver. The plea agreement signed and verified by Petitioner explicitly set forth that he was voluntarily waiving his right to collaterally attack his sentence "in any post-conviction proceeding, including a g 2255 proceeding." CR 109-003, doc. no. 31, p. 6. Moreover, Judge Hall thoroughly reviewed the terms ofthe plea agreement during the plea colloquy, emphasizing to Petitioner that he had ageed '1o waive the right to directly appeal [his] conviction and sentence and to file an appeal in connection with apost conviction process like a Habeas Corpus proceeding," subject to the exceptions noted above. Id., doc. no. 60, pp. 17- 18. After Judge Hall concluded his review ofthe plea agreement, Petitioner acknowledged that he understood and agreed with the terms of the plea agreemont as explained by Judge Hall. Id.
While Petitioner would have the Court ignore his responses to Judge Hall's questions, "solemn declarations in open court carry a strong presumption of verity'' and "constitute a formidable barrier in any subsequent collateral proceedings." Blackledge v. Allison,43l U.S. 63,'74 (1977). The record before the Court therefore demonstrates that the collateral attack waiver was knowing and voluntary. Thus, the Court concludes tlat the collateral attack waiver is valid. Of course, the Coul is aware that Petitioner has also challenged the assistance of counsel in entering into the plea agreement and the validity ofhis guilty plea, claims which, if found to have merit, would cast doubt on whether Petitioner validly waived his right to collaterally attack his sentence. However, as discussed infra, the Court determines that these claims lack merit, thus supporting the conclusion that Petitioner validly waived his right to a *10 collateral post-conviction attack of his sentence.
Moreover, "[a]n ineffective assistance ofcounsel argument survives a waiver ofappeal [or collateral attack] only when the claimed assistance directly affected the validity of that waiver or the plea itselfl" Williams v. United States,396F.3d 1340,1342 n.2 (llthCir.2005) (quoting United States v. White, 307 F.3d 506, 508-09 (5th Cir. 2002)). Applying this principle, the EleventhCircuit concluded in Williams that the petitioner's ineffective assistance ofcounsel claims conceming his counsel's representation at sentencing were covered by the collateral attack waiver in the plea agreement, as the claims "[did] not concem representation relating to the validity of the plea or waiver." Seeid. Therefore, Petitioner's claims in Ground Three, in which he contends that his sentence was "unreasonable'{ and that counsel was ineffective for failing to investigate and challenge the enhancements to his sentence - i.e., that counsel was ineffective at sentencing - are barred from review.
2. Claims in Grounds One and Two not Barred bv Waiver. but Lack Merit
Notwithstanding the above analysis, some claims, including those of ineffective assistance ofcounsel, can suwive a valid waiver. In pafticular, the Eleventh Circuit recognizes that "there may be a distinction between a $ 2255 claim of ineffective assistance in entering or negotiating the plea versus a claim of ineffectiveness at sentencing or a claim challenging the validity of the plea or agreement." Williams, 396 F.3d at 1342; see also Vaca-Ortiz, 320 F. Supp. 2d at 1365 ("[T]he court notes that a criminal defendant could not waive the right to bring a claim for ineffective assistance ofcounsel in which he alleees ineffectiveness at the time he
6Specifically, Petitioner contends that his sentence "resulted in a punishment greater than necessary to achieve the appropriate sentencing goals dictated by u8 U.S.C. g 3553(aX2)1." (Doc. no. I, p. 14.)
1 0 *11 was entering the plea or ineffectiveness related to advice he received regarding the waiver."). This is so because ineffective assistance ofcounsel in entering the plea 'Vould require a hnding that the plea was not entered knowingly and voluntarily, which would in tum mean that a court could not enforce a waiver contained within that plea agreement." Vaca-Ortiz, 320 F. Supp. 2d at 1365.
Petitioner's claims in Grounds One purpofi to challenge his counsel's perlormance as it relates to the validity of his plea and waiver while his claims in Ground Two puryort to challenge the knowing and voluntary nature of the plea itself (See doc. no. l, pp. 4-13.) Accordingly, these claims are not barred by the provision in the plea agreement waiving Petitioner's right to collaterally attack his sentence.
z. Ineffective Assistance of Counsel Claims in Ground One Lack Merit
Thathavingbeen said, ineffective assistance ofcounsel claims are subjectto the two-pafi test enunciated in Strickland v. Washington,466 U.S. 668 (1994), which is not a favorable standard to Petitioner. Massaro v. United States,538 U.S. 500, 505 (2003). First, Petitioner must show that "counsel's representation fell below an objective standard of reasonableness." Strickland,466 U.S. at 688. ln applyng this test, reviewing coufis "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonably professional assistance[.]" Id.; see also Lancaster v. Newsome, 880 F.2d 362,3'75 (llth Cir. 1989) (emphasizing "that petitioner was not entitled to error-free representation"). "A petitioner must overcome a strong presumption of compgtence, and the court must give significant delerence to the anomey's decisions." Hagins v. United States,267 F.3d 1202,1204-05 (11th Cir. 2001). Second, Petitioner must establish prejudice by showing 'that counsel's errors were so serious as to deprive the defendant ofa fair trial, a trial whose result is reliable." Strickland,466 U.S.
l l *12 at 687. In the context ofa guilty plea, the Cout must normally inquire as to whether counsel's performance aflbcted the outcome of the plea process. Hill v. Lockhart,474U.5.52, 59 (1985).
In applying the Strickland components outlined above, "[a] cout need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies . . . . If it is easier to dispose of an ineffectiveness claim on the ground oflack of suffrcient prejudice, which we expect will often be so, that course should be followed." Smith v. Wainwright,7'77 F.2d,609, 616 (11th Cir. 1985). Under the prejudice component, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result ofthe proceeding would have been different. A reasonable probability is a probability suflicient to undermine confrdence in theoutcome...." ld. at616(ciling Stricklan4 466U.S. at694-95). For as the Eleventh Circuit has ruled, an attrmative showing of prejudice that would undermine the results of the proceedings is necessary because "'attomey errors come in an infinite variety and are as likely to be utterly harmless in a particular case as they are to be prejudicial. That the errors had some conceivable effect on the outcome ofthe proceeding' is insuflicient to show prejudice." Butcher v. United States, 368 F.3d 1290, 1293 (1lth Cir. 2004) (citations omitred).
"Given the strong presumption in favor of competence, the petitioner's burden of persuasion though the presumption is not insurmountable - is a healy one." Fuqate v. Head, 261 F.3d 1206, l2l7 (11$Cir. 2001) (citation omitted). As the Eleventh Circuit has succinctly stated, "The test has nothing to do with what the best lawyers would have done. Nor is the test even what most good lawyers would have done." Waters v. Thomas,46F.3d,1506, 1512 (1 l th Cir. 1995) (en banc). "[C]ases in which habeas petitioners can properly prevail on the ground of ineffective assistance of counsel are few and far between." Id. at 151 1 .
12 *13 Petitioner levels a host of allegations conceming his counsel's alleged ineffectiveness before he ultimately entered his guilty plea. The Courl addresses these in tum. Counsel's Alleged "Premature" Advice to Plead
i. Guilty and Cooperate with the Government Petitioner first contends that counsel was ineffective for "prematurely'' advising Petitioner to plead guilty and cooperate with the govemment before Petitioner was indicted. (Doc. no. 1, p. 5.) According to Petitioner, he met with counsel for the first time in May of 2008, after the FBI had already executed a search warrant for computers containing child pomography.T (Id.) Petitioner asserts that counsel "immediatell' advised him to plead guilty, without "ever having reviewed the search warrant, discovery documents, or any paperwork naming the charged criminal conduct[.]" (kL) Petitioner states that he "felt that he had committed a serious crime and that he was indeed willing to plead guilty to it," and that he based his decision to plead guilty on the May 2008 meeting with counsel. (Id. at 5, 6.)
Petitioner's allegation that counsel was ineflective for "prematurely'' advising him to plead guilty, however, lacks merit because Petitioner fails to show prejudice. By the time Petitioner met with counsel in May of2008, the goverffnent had already secured a wealth of evidence against him, including a candid confession in which Petitioner took full responsibility tbr his receipt ofchild pomography. See PSI!l!l 11-12,1,4-15. Petitioner now faults counsel for advising him to plead guilty and cooperate with the government under these circumstances,
TThe PSI reflects that on March 28, 2008, FBI and GBI agents executed a search wanant at Petitioner's home, and recovered computers and other hardware containing "over 2,000 images ofchild pornography," as well as 8 videos containing child pornography. PSI'lTfl 11-12. The PSI also reflects that Petitioner consented to an interview with Special Agent Ozden on the same date, in which he "professed that he utilized the web site hello.com to download pomography ofall kinds, to include child pomography," as well as stating that "he had received all ofthe child pomography in his possession from others" and that "approximately 25 percent ofhispomographycollectioncontainedimagesofchildrenundertheageof77;'Id.Tfl14-15.
T J *14 w ithout, for instance, "reviewIing] the search warrant" or "discovery documents." Yet Petitioner fails to explain how such conduct by counsel would have resulted in a different outcome here. Petitioner does not deny that he received child pomography, nor does he challenge the legality of the govemment conduct that resulted in the seizure of evidence and his confession. Even if counsel could have rnore fully investigated the case before advising Petitioner to plead guilty, Petitioner l'ails to show that he wasprejudiced bycounsel's failure to do so.8 See Strickland, 466 U.S. at 687: Hill. 474 U.S. at 59.
ii. Counsel's Alleged Failure to Review the Indictment and Plea Agreement and to Explain Petitioner's Rights to Him
Petitioner also alleges that counsel was ineffective for failing to explain the "legal principles" involved in a multiple-count indictment and the difference between concurent and consecutive sentences, as well as for failing to explain "the value ofajury trial over a plea deal." (Doc. no. l, p. 5.) Petitioner fuither alleges that counsel presented the plea agreement to him on the same afternoon it "had to be frled," and that counsel became "fiustrated" when Petitioner asked questions about its contents and "never explained the counts or the sentencing exposure ofeach count." (k!. at 6.) Petitioner finallyalleges that counsel never informed him ofhis rights to "not change his plea to guilty' and "go to trial." (kL at 7.)
Even if counsel did not review these matters with Petitioner.' he still fails to show slndeed, this claim is similar to the one Petitioner raised on direct appeal, that counsel was ineffective for conceding Petitioner's guilt early on and advising him to cooperate with the govemment "as a strategy to hopefirlly lessen his sentence." (Dcc. no. 1, p. 63.) As noted earlier, however. the Eleventh Circuit found that thsre were "no arguable issues of merit" on Petitioner's appeal. !99 Gambrel, 427 F. App'x at 867.
eNotably, at the Rule I I hearing, Petitioner testified that he met with counsel "several times" to discuss his case, and that counsel went over the indictment with him and allowed him to ask questions. CR 109-003, doc. no. 60, p. I L Moreover, Petitioner testified that he read and
1 4 *15 prejudice here because Judge Hall fully reviewed the indictment and the plea agreement at Petitioner's Rule 1l hearing, and he also explained all ofthe rights Petitioner was waiving by pleading guilty, including the right to a jury trial, r0 CR I 09-003, doc. no. 60, pp. 8-1 l, I 1- 13. On the cusp ofpleading guilty at the Rule 1 I hearing, Petitioner was advised that it was not too late lor him to change his mind and maintain his innocence. Nonetheless, Petitioner informed Judge Hall that he wished to plead guitty, id. at 20, 29, and he thus fails to show how the outcome would have been different ifit had been counsel who reviewed these matters with him rather than Judge Hall. SeeHill,474U.S.at59.
iii. Counsel's Alleged Ineffectiveness with Respect to the Pre-Sentence Interview Petitioner also contends that counsel was ine{fective for failing to correctly advise him of the ramifications ofhis pre-sentenca interview with the Probation Depafiment, as well as for allowing the interview to take place, before the Rule I I hearing. (Doc. no. 1, p. 7.) Petitioner clarifies in his response to the govemment's motion to dismiss that counsel "never" explained discussed the plea agreement with his attomey before signing it. Id. at 19. Finally, in the plea agreement, Petitioner explicitly represented that he and his attorney "discussed the defendant's right to a public trial byjury or by the Coufi," and that he had "weighed the relative benefits of a trial byjury or by the Court versus a plea ofguilty" with his attomey. Id., doc. no. 31, p.10.
"'Moreover, with regard to Petitioner's allegation that counsel failed to explain'the counts or the sentencing exposure ofeach count," (doc. no. 1, p. 6), Petitioner fails to explain how knowing the pafiicular penalties associated with each ofhis charges would have changed his decision to plead guilty to Count Two. To the extent he might be asseting that he would have triedto plead to a count with a lower sentencing exposure, such as Count Three (possession of child pornography), see CR 109-003, doc. no. 2, he falls well short of estahlislting that he would not have entered the plea he did and would have taken his chances at trial had he not been offered such a deal. It is wholly speculative that Petitioner would have been given the option to plead to something more favorable than Count Two. See. e.g., United States v. Palmer, 809 F.2d I 504, I 508 ( 1 l th Cir. 1987) (explaining that plea bargaining decisions are entirely within the prosecutor's discretion and that "[t]he government [is] under no obligation to enter into any plea bargaining or to accept any deal offered by [a defendant].").
1 5 *16 to him that "the [P]robation [D]eparlment could utilize uncharged conduct in the indictment, plea agreement, or Rule I t hearing to increase [Petitioner's] sentencing exposure 18 levels above the 22 levels that Petitioner had plead (sic) guilty to."r' (Doc. no. 4, p. 11.) According to Petitionel counsel's failure to inform him about the potential sentence enhancements caused a "'Lack ofNotice' as to the exact nature ofthe charged conduct in the plea agreement." (Doc. no. I, p. 7.)
This claim ofineffective assistance ofcounsel also fails for lack ofprejudice, however. So long as the Rule ll court correctly advises a defendant of the minimum and maximum penalties he laces as a result of pleading guilty, a petitioner fails to establish prejudice by alleging that counsel gave erroneous advice about the sentence he might receive or the possibility for enhancements under the Sentencing Guidelines. See United States v. Wilson,245 F. App'x 10, I 1- l2 (1 l th Cir.2007) (per curian) (no prejudice where counsel's deficient advice about possible sentencing implications was "cured" by district court, which explained "the consequences ofthe plea agreement, range ofpunishment, and sentencing contingencies before accepting [the] guilty plea."); see also United States v. Shedrick, 493 F.3d 292, 299 (3d Cir. 2007) (district court conectly denied $ 2255 claim that counsel was ineffective for failing to advise petitioner of"thepotential for enhancement orupward departure" where such failure was "con'ected by the written plea agreement and the detailed in-court plea colloquy, both of which accurately stated [petitioner's] potential sentence.").
Here, Judge Hall correctly explained to Petitioner the minimum and maximum penalties that might be imposed in the event of his convictior\ including no less than five and no more
I'As noted earlier, Petitioner's base offense level for purposes of the U.S.S.G. was 22, before any enhancements were imposed. See PSI tf 22.
1 6 *17 than twenty years oI incarceration, and Petitioner testified that he understood those penalties. CR 109-003, doc. no. 60, pp. 15-16. Moreover, the plea agreement that Petitioner signed clearly provided that the U.S. Probation office would "consider all of [his] conduct related to the offense to which he is pleading," id., doc. no. 31, pp. 8-9, and Judge Hall informed petitioner that his sentence would be based on this investigation by the probation oflice and application ofthe advisory Sentencing Guidelines, !g!, doc. no. 60, pp. 16-17. Thus, no prejudice inured to Petitioner as a result ofcounsel's alleged failure to conectly inform him about the impact of the presentence interview on his sentence,rt because he was sufficiently infomed by the plea agreement and the Rule I I court ofthe penalties he was facing before he entered his guiltyplea, and he still elected to do so. See Wilson, 245 F. App'x at I l-12; Hill, 474rJ.5. at 59.
Petitioner ultimately contends that counsel's failure to inform him about potential sentencing enhancements caused a "'Lack of Notice' as to the exact nature of the charged conduct in the contractual plea agreement[.]" (Doc. no. 1, p. 7.) ln making this claim, however, Petitioner appears to have confused the criminal charge to whichhepled guiltywith the sentence he ultimately received. As discussed in greater detail infra, petitioner was fully and correctly informed of the elements of the charge to which he was pleading guilty, receipt of child pomographyunder 18 U.S.C. g 2252A(a)(2), as well as the statutorypenalties. See part II.B.2.b.
''Nor can Petitioner show any prejudice based on the mere fact that the presentence interwiew happened to take place before the Rule 11 hearing. Indeed, the Federal Rules of criminal Procedure specifically contemplate that apresentence report, ofwhich the presentence interview is a part, may be prepared before the trial court has actually accepted a guilty plea. See Fed' R. crim. P. 32(e)(1) ("unless the defendant has consented in writing, the probation officer must not submit a presentence report to the coull or disclose its contents to anyone ur?/i/ the defendant has pleaded guilty or nolo contendere, or has been found guilty.") (emphasis added); seealsoGreegv.UnitedStates,394U.S.489,49l-92(1969)(interpretinganearlier version ofRule 32, which provided that the '.repon shall not be submitted to the court . . . unless the defendant has pleaded guilty or been found guilty," and noting that the rule "clearlypermits the preparation ofa presentence report before guilty plea or conviction.").
The enhancements to Petitioner's sentence, on the other hand, were based on characteristics of that offense delineated under the u.s.S.G. for determining the appropriate sentence within that range, such as the fact that sorne ofthe pomography "involved material that portrays sadistic or masochistic conduct or other depictions of violence." See U.S.S.G. g 2G2.2(b); pSI:.n22-27. There was no requirement that Petitioner be informed of the specific enhancements to his sentence before entering his guiltyplea, see United Statesv. Herrington, 350 F. App'x 363, 369 ( 1 l th cir. 2009) (per curiam), nor were those enhancements pan ofthe charge to which he was pleading. See Corona v. United States,8:05-CV-1213-T-30MAP, 2006 WL 1232650, at *4 (M.D. Fla. May 8, 2006) (rejecting petitioner's argument that he did not understand "nature of the charge" because he was not advised ofa sentencing enhancement, as "the enhancernent did not affect the "nature of the charge' set out in the indictment and in [p]etitioner's plea agreement."). Therefore, Petitioner's claim that he lacked "notice" abort flie charge in his plea agreement because ofthe subsequent application ofsentencing enhancements is meritless, and he can thus show no prejudice from counsel's alleged failure to infom him about the sentencing enhancements.
In sum, for the reasons discussed above, Petitioner has failed to establish that counsel was ineffective with his various allegations ofcounsel's deficiencies before he entered the guilty plea. Put another way, Petitioner has failed to show how the outcome of the proceeding would have been different i.e., that he would not have entered the guilty plea he did but for counsel's alleged errors. See Strickland,466 u.s. at 687; Hill, 474 u.s. at 59. petitioner is therefore not entitled to reliefon any ofthe claims ofineffective assistance ofcounsel in Ground One of his 6 2255 motion.
1 8 *19 Petitioner's Guilty Plea Was Knowing and Voluntary
b. Thus, having resolved Petitioner's claims of ineffective assistance of counsel before entry ofthe plea, the Court will address his claim that his guilty plea itselfwas not knowing and voluntary, which overlaps significantly with his various allegations of pre-plea ineffective assistance ofcounsel. Once a guilty plea becomes final, unless the record demonstrates that the sentencing court lacked the powgr to enter the conviction or impose the sentence, a petitioner may only challenge the knowing, voluntary nature ofthe plea. United States v. Broce, 488 U.S. 563,574(1989). ln conducting its analysis, the Court starts with the proposition that a trial court may not accept a guilty plea without an alfirmative showing on the record that the plea was intelligent and voluntary. Bqykin v. Alabama, 395 U.S. 238,242-43 (1969). The Eleventh Circuit has described the requirements for a valid guilty plea as follows:
"The Fourteenth Amendment Due Process Clause requires that a plea ofguilty be knowingly and voluntarily entered because it involves a waiver ofa nurnber of the defendant's constitutional rights." A plea of guilty "cannot suppofi a judgment ofguilt unless it was voluntary in a constitutional sense." Aside from the obvious involuntariness ofa coerced plea, the Supreme Court has identified two other ways that a defendant's guilty plea may be involuntary in a constitutional sense:
A plea may be involuntary either because the accused does not understand the nature ofthe constitutional protections that he is waiving, orbecause he has such an incomplete understanding of the charge that his plea cannot stand as an intelligent admission of guilt. Without adequate notice of the nature ofthe charge against him, or proofthat he in fact understood the charge, the plea cannot be voluntary in this latter sense.
As the Supreme Court has plainly instructed, the voluntariness requirement is not satisfied unless the defendant receives real notice ofthe true nature ofthe charged crime: "[C]learly the plea could not be voluntary in the sense that it constituted an intelligent admission that he committed the offense unless the defendant received 'real notice ofthe true nature ofthe charge against him, the first and most universally recognized requirement ofdue process."' United States v. Brown,II7 F.3d 471,476 (Ilth Ctr. 1997) (intemal citations omitted). The
1 9 *20 Eleventh Circuit has further explained that, for a guilty plea to be made knowingly and voluntarily, the court accepting the guiltypleamust "specifically address three "core principles,' ensuring that a defendant (l ) enters his guiltyplea free from coercion, (2) understands the nature ofthe charges, and (3) understands the consequences ofhis plea." United States v. Moriarty, 429 F.3d 1012, 1019 (l lth Cir. 2005). In addition, "a defendant who seeks reversal of his conviction after a guilty plea . . . must show a reasonable probability that, but for the error, he would nothave entered the plea." Id. at 1020 (quoting United States v. Dominzuez Benitez, 542 u.s. 74, 83 (2004)).
In his $ 2255 motion, Petitioner contends that he was instructed .,to not disagree with anyhing said during the [Rule I I ] hearing," that he was "induced,' to plead guilty by prospect ofreceiving a reduction for acceptance ofresponsibility and being sentenced as a "non-violent, first time oft'ender," that he did not understand the nature ofthe charges, and that he did not understand the consequences ofhis pleabecause he wasnot aware ofthepotential enhancements to his sentence. (See doc. no. l, pp. 9- I I ; doc. no. 4, pp. 8-9.) As the govemment persuasively argues, however, all ofthese allegations directly contradict Petitioner's swom testimony during the Rule I l hearing. (See doc. no. 3, p. 10.)
Indeed, the extensive plea colloquy conducted by Judge Hall addressed each of the aforementioned "core principles." Moriarty, 429 F.3d at 1019. Judge Hall informed petitioner in clear terms of the charges to which Petilioner was pleading guilty, by reading the entire indictment aloud, and then by specifically reviewing the three elements of the count to whicL Petitioner was pleading and explaining that the govemment would have to prove these elements to convict him. cR 109-003, doc. no. 60, pp. I I - 15. Petitionertestified that he understood those
20 *21 elemenls. '' Id. at 15. Judge Hall also explained to petitioner the maximum penalties that might be imposed in the event of his conviction, including twenty years of incarceration, and petitioner testified that he understood those penalties. Id. at 15-16. Judge Hall provided a detailed explanation ofthe rights that petitioner would forfeit by pleading guilty; petitioner stated thal he understood these rights and that his decision to plead guilty would result in a waiver ofthese rights. Id.at8-lL Petitioner furthertestified that no one had made him anypromise, prediction, or prophesy that he would receive a parlicula{ sentence, that no one had forced or required him to plead guilty, that no one had promised him anyhing to induce his guilty plea, and that he was pleading guilty because he was "in fact, guilry[.]" Id. ar 5, 16-17, l9_20. Finally, in the plea agreement, which .Iudge Hall verified that Petitioner read and understood, Petitioner explicitly acknowledged his understanding that his sentence would reflect ..4!l of [his] conduct related to the offense."'o !!, doc. no. 31, pp. 8-9.
IrPetitioner contends that a statement he mads during the Rule 1 I colloquy demonstrates that he did not understand the elements ofhis charge. He asserls that his statement that ..not one single picture do they have ofa child taken by me in an [in]appropriate manner,' at the hearing, cR 109-003, doc. no. 60, p. 35, shows that he must have thought "production of chiia pomography" was an element of the offense, which it was not. (Doc. no. t, p. t t..y Nctably, however, Petitioner made that statement at the enzl ofthe hearing, after acceptance ofthe guilty plea, when Judge Hall was considering whether to detain petitioner awaiting sentencing. Judge Hall reviewed the elements ofthe offense much earlier in the hearing, and pititioner evinced no misunderstanding ofthose elements at that point. See cR 109-003, doc. no. 60, pp. 14- 15. The courl is not persuaded that this out-of-context statement overcomes the strong presumption afforded Petitioner's swom testimony that he understood the elements ofthe ofrense. ''of note, so long as a defendant is informed of the maximum possible penalties he ^
faces, his lack ofknowledge about specific sentencing enhancemerts doei not render his guilty ple^a unftnowing and involuntary, See Heningtor\ 350 F. App'x at 369 (where court infoimei defendant ofpotential for 50 years' imprisonment ifhe pled guilty to two counts ofindictment, and that counsel's advice about possible sentence was not binding on the court, failure to inform him ofpotential for career-offender enhancement did not establish that his guilty plea was not knowing and voluntary). Rather, "[w]here the court elicits that a defendant ii aware of the Guidelines, and that the defendant has discussed the effect of the Guidelines with his attomev. Rule I I compliance has occurred." United states v. Simpson, 154 F. App'x g60. g6l (l I th cir. 2005) Qter curian). (continued on next page)
2 l *22 In short, Judge Hall's thorough plea colloquy ensured that Petitioner's guilty plea was liee from coercion and that Petitioner understood both the nature ofthe charge to which he was pleading guilty and the consequences ofhis plea. See Moriaqv, 429 F.3d, at 1019. The record is therefore clear as to the intelligent and voluntary entry ofPetitioner's guilty plea. Moreover, the Court declines Petitioner's belated invitation to ignore his "solemn declarations in open courl," Blackledge,431 U.S. at 74, in favor ofhis self-serving allegations that he was not only instructed to be dishonest at the Rule 1 t hearing, but that he complied with that instruction by repeatedly lying under oath to the very Court from which he now seeks relief. See also United States v. Stitzer,785 F-zd 1506, 1514 n.4 (llth Cir. 1986) ("[I]f the Rule 11 plea+aking procedure is careful and detailed, the defendant will not later be heard to contend that he swore falsely.") (citing united stares v. Barrett,5l4F.2d 1241,1243 (5th Cir. 1975)).r5
For that matter, Petitioner's allegations fall well short of establishing a reasonable probability that he would not have pled guilty absent the alleged "instruction" from counsel or misunderstanding based on counsel's alleged ineffectiveness, especially given his unwavering admission of guilt.r6 See Moriartv, 429 F.3d at 1020. Accordingly, the Court finds that
Here, Judge Hall informed Petitioner ofthe maximum penalties he faced because ofhis charge, regardless ofanypossible sentencing enhancements. CR 109-003, doc. no. 60, pp. l5- 16. Judge Hall also made Petitioner aware ofthe use ofthe Sentencing Guidelines and insured that he had discussed them with his attomey. Id. at l6- 17. Petitioner testified that he understood all ofthis. Id. at 16, 17. Judge Hall thus fulfilled his obligations under Rule I I with respect to informing Petitioner of the consequences of his guilty plea. Accordingly, there is no merit to Petitioner's claim that his guilty plea was not knowing and voluntary because he was unaware ofthe specific enhancements that would be added to his sentence. (See doc. no. l, p. 7; doc. no. 4 , p p . 1 2 - 1 3 . )
r5ln Bonner v. Citv of Prichard , 66l F .2d 1206, 1209 (1 1th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding precedent all decisions ofthe former Fifth Circuit handed down prior to October l, l98l .
'"As noted earlier, as part ofthe agreement, Petitioner avoided having to stand trial on Count One ofthe indictment, transportation of child pomography, which canied, in ter alia, an *23 Petitioner's guilty plea was entered knowingly and voluntarily. Therefore, Ground Two of Petitioner's $ 2255 motion is without merit.
C. Ineffective Assistance of Counsel Claim in Ground Four Lacks Merit Finally, Petitioner contends in Ground Four that counsel ..abandoned" him on direct appeal. Notably, whether a claim ofinefGctive assistance ofcounsel based on counsel's failure to consult with his client conceming filing a direct appeal survives a collateral attack waiver is cunently a question on appeal before the Eleventh circuit. See Jones v. united States, No.12- 10562 (l lth cir. Feb. l,2012). The court is aware that Petitioner's claim of "abandonment" is distinct from the claim that counsel failed to consult with his client about an appeal. However, Judge Hall recently issued a certificate of appealability on the related issue of whether a collateral attack waiver bars a $ 2255 claim that "trial counsel provided ineffective assistance ofcounsel as a result ofhis actions related to pursuing a direct appeal." See Marshall v. united States, CV lll-097, doc. no. 17, p. 5 (S.D. Ga. Feb.28,2013).
Fortunately, the court need not address the effect of the collateral attack waiver on Ground Four of the instant $ 2255 motion since, notwithstanding the waiver, the claim asseted in Ground Four fails on the merits under strickland.rT Accordingly, the court will apply the additional minimum offive years incarceration and the potential for up to twenty years. see cR 109-003, doc. nos. 1, 2, 31. while Petitioner is obviously dissatisfied that he received the statutory maximum term ofincarceration for receipt ofchild pomography as a result ofpleading gui lty, the Cout is simplynot persuaded that Petitioner would have takenhis chances attrial and risked receiving an even more severe sentence.
_rTPetitioner confusingly asserts, in his response to the govemment's motion to dismiss, that he is not arguing ineffective assistance ofcounsel in Ground Four, but rather that counsei failed_ to act as Petitioner's "agent" and "abandoned" him. (Doc. no.4,p.2 n.2.) petitioner nonetheless assets that he has met the cause and prejudice standard of Strickland. Moreover, in the primary case Petitioner relies upon, Roe v. Flores-Ortesa, 528 U.S. 470 (2000), the Supreme Court applied the Strickland ineffective assistance ofcounsel framework to a claim that counsel failed to file an appeal for a defendant. Put another way, petitionerdoes not cite and the court is not aware ofany authority for Petitioner's claim being govemed by a standard other
23 *24 same two-parl test for prejudice and ineffectiveness set forth supra Part ILB.2.a, and it makes no finding as to whether Petitioner's claim that Mr. Hawk "abandoned" him on appeal is barred by the collateral attack waiver.ro
That having been said, Petitioner's claim that he received ineffective assistance from Mr. Hawk on direct appeal lacks merit, as Petitioner fails to show prejudice. While Petitioner filed his notice of appeal pro se, CR 109-003, doc. no. 43, Mr. Hawk not only submitted an Anders brief, but he also apparently submitted a briefto the Eleventh Circuit Court ofAppeals arguing his own ineffectiveness as trial counsel (see doc. no. 1,pp.51-66). Put another way, Petitioner was not "abandoned" on appeal by counsel at all, but in fact received assistance ofcounsel at that stage. More significantly, the Eleventh Circuit found that "counsel's assessment ofthe relative merit of the appeal [was] correct." Gambrel, 427 F. App'x at 867. Accordingly, the Eleventh Circuit found no issues of arsuable merit and affirmed Petitioner's conviction and sentence. !!
In light ofthe fact that Petitioner received full consideration by the Eleventh Circuit and was found to have no meritorious issues to present on appeal, as well as the fact that Mr. Hawk in fact handled his appeal, Petitioner simply fails to show prejudice based on Mr. Hawk's alleged performance on direct appeal.re Strickland,466 U.S. at 687. Accordingly, Petitioner is not than that for ineffective assistance ofcounsel. See Cuesta v. United States ,05-21626-ClV , 0l- 377 -CR,2008 WL 6'78677, at * I (S.D. Fla. Mar. 12,2008) (construing petitioner's claim in a motion for reconsideration that counsel "abandoned" him during proceedings on his $ 2255 motion as an attempt to make an ineffective assistance of counsel claim). Accordingly, the Coutl will analyze this claim under the Strickland standard.
rEThe Court's decision to analyze Ground Four on the merits does not result in any prejudice to Respondent, given that Respondent has already argued the merits ofGround Four in its motion to dismiss. (Doc. no. 3, p. 16.)
reFor that matter, Petitioner's reliance on llglg!:Q4€gq is misplaced. In that case, the Supreme Court held that "when counsel's constitutionally deficient performance deprives a
24
entitled to any reliefon the claim in Ground Four.
In sum, Petitioner is not entitled to reliefon any ofthe four grounds that he asserts in his $ 2255 motion.
III. CONCLUSION
For the reasons set forth above, the Court REPORTS and RECOMMENDS that Respondent's Motion to Dismiss be GRANTED (doc. no. 3), that rhe instant $ 2255 motion be DISMISSED without an evidentiary hearing, and that this civil action be CLOSED.
SO REPORTED and RECOMMENDED on this,/7Aday of May,20t3, at Augusta, Georuia.
IAIITED STATES MA defendant of an appeal that he otherwise would have taken, the defendant has made out a successful ineffective assistance ofcounsel claim entitling him to an appeal." 528 U.S. at 484. Accordingly, any claim relying on that case fails out of the gate, because Petitioner was lol deprived ofan appeal. Moreover, as explained supra, Petitioner has failed to otherwise explain how he was prejudiced by counsel's performance on direct appeal.
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