Mayes v. United States of America (INMATE3)

Filing 28

REPORT AND RECOMMENDATIONS that 1 28 U.S.C. § 2255 motion filed by Mayes be denied, as the claims therein entitle him to no relief; Objections to R&R due by 12/4/2008. Signed by Honorable Terry F. Moorer on 11/21/2008. (cc, )

IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA S O U T H E R N DIVISION C H A R L IE MAYES, P e titio n e r, v UNITED STATES OF AMERICA, R e sp o n d e n t. ) ) ) ) ) ) ) ) )

Civil Action No. 1:07cv253-MEF (WO)

R E C O M M E N D A T I O N OF THE MAGISTRATE JUDGE T h is matter is before the court on a motion by Charlie Mayes ("Mayes") to vacate, set a s i d e , or correct his sentence pursuant to 28 U.S.C. § 2255. After considering Mayes's § 2255 motion, the supporting and opposing submissions, and the record in this case, the c o u rt concludes that the motion should be denied without an evidentiary hearing. See Rule 8 (a), Rules Governing Section 2255 Proceedings in the United States District Courts. I. PROCEDURAL HISTORY

O n August 10, 2005, a jury found Mayes guilty of violating 18 U.S.C. § 922(g)(1), w h ic h proscribes possession of a firearm by a convicted felon. Mayes was sentenced to 60 m o n th s in prison. He appealed to the Eleventh Circuit, which affirmed his conviction and s e n te n c e on December 29, 2006. See United States v. Mayes, 212 Fed.Appx. 934 (11 th Cir. D e c . 29, 2006) (unpublished). On March 6, 2007 (Doc. No. 1), Mayes filed a § 2255 motion, w h i c h he was later allowed to amend. (See Doc. Nos. 9-11.) In his § 2255 motion, as a m e n d e d , Mayes asserts the following claims:

1.

T h e trial court failed to consider Mayes's mental condition before trial a n d prior to sentencing. T h e trial court erred in denying Mayes's motion for a judgment of a c q u i t ta l . M a ye s 's trial counsel was ineffective for the following reasons: a. C o u n s e l failed to investigate and prepare a defense by re q u e s tin g and obtaining complete discovery of e x c u lp a to ry medical records and presenting testimony r e g a rd i n g Mayes's mental illness. C o u n s e l failed to inform and advise Mayes of the law a p p lic a b le to his case. C o u n se l failed to preserve certain issues for appellate re v ie w .

2.

3.

b.

c.

(D o c. Nos. 1, 9 & 11.) The government answers that Mayes's claims are either meritless or procedurally b a rre d . (Doc. Nos. 7 & 14.) Mayes was allowed an opportunity to respond to the

g o v e rn m e n t's submissions and has done so. (Doc. Nos. 9 & 16.) II. A. S u b sta n tive Claims 1. T h e Court's Failure to Consider Defendant's Mental Condition DISCUSSION

M a ye s contends that the trial court erred by failing to consider his mental condition p rio r to trial and before his sentencing. (Doc. No. 1 at 5.) a. P r io r to trial

M a ye s's claim regarding the court's failure to consider his mental condition prior to 2

trial was not advanced on direct appeal. Therefore, it is procedurally barred from review in th is § 2255 proceeding unless Mayes can establish both cause for the failure to raise the c l a i m on direct appeal and actual prejudice arising from that failure. See Mills v. United S ta te s, 36 F.3d 1052, 1055-56 (11 th Cir. 1994). Mayes, however, does not attempt to d e m o n s tra te any cause to overcome this procedural default. Nor does he assert his actual in n o c e n ce .1 Thus, this claim is defaulted and is barred from this court's consideration. b. Before sentencing

M a ye s's claim that the trial court failed to consider his mental condition before his s e n te n c i n g was raised on direct appeal. The Eleventh Circuit found the claim to be meritless a n d decided the attendant issues adversely to Mayes. See United States v. Mayes, 212 F e d .A p p x . 934 (11 th Cir. Dec. 29, 2006) (unpublished). Because this claim was raised and re s o lv e d on direct appeal, this court will not reconsider the claim here. United States v. N y h u is, 211 F.3d 1340, 1343 (11 th Cir. 2000). 2. M o tio n for Judgment of Acquittal

M a ye s also contends that the trial court erred by denying his motion for a judgment o f acquittal. (Doc. No. 1 at 6.) He presented this claim on direct appeal, and the court of a p p e a ls determined it to be without merit. Therefore, this court will not reconsider the claim in this § 2255 proceeding. Nyhuis, 211 F.3d at 1343. B. I n e ffe c tiv e Assistance of Counsel
1

See Murray v. Carrier, 477 U.S. 478, 496 (1986) (even where cause and prejudice are not shown, proof of actual innocence may open the door to review of an otherwise defaulted claim). 3

1.

S t a n d a r d of Review

A claim of ineffective assistance of counsel is governed by the standards of Strickland v . Washington, 466 U.S. 668 (1984). Grossman v. McDonough, 466 F.3d 1325, 1344 (11 th C ir. 2006). Under Strickland's two-part test, a petitioner must demonstrate (1) that

" c o u n se l's representation fell below an objective standard of reasonableness" and (2) that " th e re is a reasonable probability that, but for counsel's unprofessional errors, the result of th e proceeding would have been different." Darden v. Wainwright, 477 U.S. 168, 184 (1986) (in ter n a l quotation marks omitted); Chandler v. United States, 218 F.3d 1305, 1313 (11 th Cir. 2 0 0 0 ). A "reasonable probability is one "sufficient to undermine confidence in the

o u tc o m e ." Strickland., 466 U.S. at 694. S c r u tin y of counsel's performance is "highly deferential," and the court indulges a " s tro n g presumption" that counsel's performance was reasonable. Chandler, 218 F.3d at 1 3 1 4 (internal quotation marks omitted). The court will "avoid second-guessing counsel's p e rf o rm a n c e : It does not follow that any counsel who takes an approach [the court] would n o t have chosen is guilty of rendering ineffective assistance." Id. (internal quotation marks a n d brackets omitted). Thus, "[g]iven the strong presumption in favor of competence, the p e t itio n e r 's burden of persuasion ­ though the presumption is not insurmountable ­ is a h e a v y one." Id. U n le ss a petitioner satisfies the showings required on both prongs of the Strickland inq u iry, relief should be denied. Strickland, 466 U.S. at 687. Accordingly, once a court 4

d e c id e s that one of the requisite showings has not been made, it need not decide whether the o th e r one has been. Id. at 697; Duren v. Hopper, 161 F.3d 655, 660 (11 th Cir. 1998) ("if a d e f en d a n t cannot satisfy the prejudice prong, the court need not address the performance p ron g "). 2. F a i lu r e to Investigate and Prepare a Defense

M ayes argues that his counsel was ineffective for failing to investigate and prepare a n adequate defense. (Doc. No. 11 at 1-6; Doc. No. 9 at 2-5.) In this regard, Mayes contends th a t his counsel was derelict in failing to request and obtain his medical records during d is c o v e ry and in failing to present testimony from the physician who treated him for a mental illn e ss . According to Mayes, his medical records and testimony from his physician could h a v e been used to bolster a trial strategy based on mental disease or defect.2 In addtion, M a ye s argues that "trial counsel could have used the doctor's testimony to substantially w e a k e n and destroy the State's case because the trial counsel knew that the State's whole c a se rested upon the doctor's testimony and petitioner's medical records." (Doc. No. 11 at 4 .) Mayes also contends that his medical records and his physician's testimony could have b ee n presented at his sentencing, where they would have supported a downward departure ­ or, in the alternative, a sentence at the low end of the Guidelines range ­ based on his m e n t a l illness.

Mayes also suggests that the prosecution deliberately withheld his medical records from the defense. However, there is no evidence indicating that the government or its agents either held or withheld such documents. 5

2

In compliance with directives of this court, Mayes's trial counsel, Kevin L. Butler, f ile d an affidavit addressing Mayes's allegations of ineffective assistance. (Doc. No. 13.) W ith specific regard to the instant claim, Butler avers as follows: M r. Mayes asserts that I provided him ineffective assistance of counsel by f a ilin g to investigate and prepare a defense for trial. A complete reading of his p e titio n reveals Mr. Mayes asserts my representation was ineffective for se v e ra l reasons. First, I erroneously failed to request and obtain complete d is c o v e ry/B r a d y information and subsequently based Mr. Mayes' trial strategy u p o n incomplete discovery. Second because of my failure to obtain and s u b m it for the court's consideration his medical records, Mr. Mayes was not a b le to rebut the government's trial case and receive full and fair sentencing c o n s id e ra tio n . ... A s to Mr. Mayes' first assertion, my case review indicates that discovery re la te d to the charged offense and was completely provided. Mr. Mayes e rro n e o u sly asserts that the government's case was grounded upon medical e v id e n c e and the government withheld information related to this issue. This is simply incorrect; at no stage of the proceedings did the government rely u p o n medical evidence. The government charged Mr. Mayes with being a f e lo n in possession of a firearm and only presented evidence at trial and s e n te n c in g that supported that accusation. If this allegation is construed as an a ss e rtio n the defense should have put on an "insanity" defense, as discussed in f ra based upon the case investigation, this was not a viable option. A s to Mr. Mayes' second assertion, in preparation for trial and sentencing u n d e rs ig n e d extensively investigated Mr. Mayes' medical and psychological h i sto r y. Additionally, undersigned counsel consulted with Mr. Mayes' p e rs o n a l psychologist and funded an independent psychiatric examination. No in f o rm a tio n helpful for trial or sentencing was obtained as a result of the in f o rm a tio n gathered. (D o c . No. 13 at 2-3.) W e ig h in g the cursory allegations in Mayes's § 2255 motion against the averments of c o u n se l, and considering the record in this case, the court finds that Mayes has failed to show 6

th a t counsel's performance in this regard was deficient or that Mayes was prejudiced by c o u n se l's performance. Counsel's affidavit establishes that he acted diligently in conducting d isco v ery and in investigating and preparing a defense. Counsel investigated Mayes's p s yc h o lo g ic a l and medical history prior to trial, consulted with Mayes's personal physician, a n d funded an independent psychiatric examination before concluding that a trial strategy b a s e d upon mental disease or defect was not a viable option. Other than Mayes's selfs e rv in g allegation, this court has been presented with nothing to indicate that counsel failed to request or obtain full discovery from the government of documents and evidence related to the government's case. As counsel states in his affidavit, Mayes is simply incorrect in a ss e rtin g that the government's case was grounded upon medical records or other evidence re la te d to his treatment for a mental disease. At trial, the government presented a s tra ig h tf o rw a rd case showing that Mayes was stopped while operating a vehicle in which a lo a d e d pistol was found. Mayes's counsel presented a defense attempting to show that the g u n did not belong to Mayes and that Mayes was unaware of its presence in the vehicle. M ayes points to nothing in his medical records which might reasonably undermine counsel's c o n c lu s io n that an insanity defense was not viable in his case. N o r does Mayes show a reasonable likelihood that testimony beneficial to him might h a v e been obtained from his treating physician. The transcript of the sentencing proceedings re f lec ts that Mayes's counsel spoke to Mayes's physician prior to sentencing in an effort to d e t e r m i n e whether he might provide mitigating evidence concerning Mayes's mental 7

c o n d itio n . However, counsel did not present testimony from the physician when it became ap p are n t that he could not provide testimony beneficial to Mayes. Counsel did, however, i n tro d u c e Mayes's medical records at sentencing and argued for a downward departure or o th e r sentence reduction based on Mayes's "significantly reduced mental capacity." 3 (S e n te n c e Hearing at 2-5.) The medical records, which indicated that Mayes's physician had d ia g n o se d him with a schizophrenic disorder, were considered by the trial court and rejected as a basis for a downward departure or other mitigation. The trial court's ruling in this regard w a s upheld by the Eleventh Circuit on Mayes's direct appeal. G re a t deference is shown to the choices of counsel that are dictated by reasonable trial s tra te g y. Rogers v. Zant, 13 F.3d 384, 386 (11 th Cir. 1994); see Strickland v. Washington, 4 6 6 U.S. 668, 689 (1984). This court cannot say that the performance of Mayes's counsel " f ell below an objective standard of reasonableness." Strickland, 466 U.S. at 688. The re c o rd before this court indicates that counsel requested and obtained full discovery, c o n d u c te d ample pretrial investigation, and prepared and pursued a defense that was re a so n a b le under the facts as determined by counsel's diligent efforts on behalf of his client. B e c au s e Mayes fails to show that his counsel's performance was deficient and that such p e rf o rm a n c e prejudiced his case, see Strickland, 466 U.S. at 687-89, he is not entitled to re lief based on this claim of ineffective assistance of counsel. 3. F a ilu r e to Advise Regarding Applicable Law

3

See U.S.S.G. § 5K2.13 8

M ayes contends that his counsel rendered ineffective assistance by failing to inform a n d advise him of the elements of the charged crime or the law applicable to his case. (Doc. N o . 11 at 5-6.) With regard to this allegation, Mayes's counsel states in his affidavit: I, as well as others in my office,[4 ] regularly and routinely met with Mr. Mayes to discuss with him the legal issues in his case [and] the relevant and a p p lica b le facts and consult with him regarding case strategy (i.e., this is ref le cted in the 323 hours my office invested in Mr. Mayes' represenation). M r. Mayes' assertion that he was not fully advised by undersigned counsel or m y office is without merit. (D o c . No. 13 at 3.) C o u n s e l's affidavit reflects that he and members of his office spent extensive time w ith Mayes discussing the relevant legal and factual issues as well as case strategy. As noted b y the government in its supplemental answer, the record also establishes that, prior to trial, M a ye s was informed of ­ and indicated his understanding of ­ the charge against him, the e le m e n t s the government would need to establish to prove him guilty, and the possible p e n a lty he faced if convicted. (Courtroom Deputy Minutes, Doc. No. 10, Criminal Case No. 1 :0 5 c r1 2 .) Mayes's cursory and self-serving allegation that counsel failed to advise him of th e law applicable to his case fails to demonstrate deficient performance by counsel or any re s u ltin g prejudice. See Strickland, 466 U.S. at 687-89. This allegation of ineffective a ss is ta n c e of counsel lacks merit and does not entitle Mayes to any relief.

Mr. Butler is employed as the First Assistant Federal Defender with the Federal Public Defender's office for the Middle District of Alabama. 9

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4.

F a ilu r e to Preserve Issues for Appellate Review

M a ye s's final contention is that his trial counsel "was ineffective for not preserving th e issues raised at the trial level for the appellate counsel to raise on appeal." (Doc. No. 11 a t 6.) However, he fails to point to any specific issue that his trial counsel failed to preserve fo r appellate review. Moreover, the record reflects that the issues raised by Mayes's a p p e lla te counsel were in fact raised and properly preserved by trial counsel. Once again, M a ye s fails to demonstrate deficient performance by counsel or any resulting prejudice. S tr ic k la n d , 466 U.S. at 687-89. Therefore, he not entitled to any relief based on this a lleg a tio n of ineffective assistance of counsel. III. CONCLUSION

A c c o rd in g ly, it is the RECOMMENDATION of the Magistrate Judge that the 28 U .S .C . § 2255 motion filed by Mayes be denied, as the claims therein entitle him to no relief. It is further O R D E R E D that the parties shall file any objections to this Recommendation on or b e fo r e December 4, 2008. A party must specifically identify the findings in the

R e c o m m e n d a tio n to which objection is made; frivolous, conclusive, or general objections w ill not be considered. Failure to file written objections to the Magistrate Judge's proposed f in d in g s and recommendations shall bar a party from a de novo determination by the District C o u rt of issues covered in the Recommendation and shall bar the party from attacking on a p p e a l factual findings accepted or adopted by the District Court except upon grounds of 10

p la in error or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5 th Cir. 1982). See S te in v. Reynolds Securities, Inc., 667 F.2d 33 (11 th Cir. 1982). See also Bonner v. City of P r ic h a r d , 661 F.2d 1206 (11 th Cir. 1981) (en banc). D o n e this 21 st day of November, 2008.

/s/Terry F. Moorer TERRY F. MOORER U N IT E D STATES MAGISTRATE JUDGE

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