Porter v. United States of America (INMATE 3)
Filing
43
MEMORANDUM OPINION AND ORDER directing as follows: (1) Porter's 40 objection is OVERRULED; (2) ADOPTING 39 Report and Recommendation of the Magistrate Judge; (3) Porter's 28 USC 2255 motion and amended 2255 motion are DENIED; and (4) this action is DISMISSED with prejudice. Signed by Chief Judge William Keith Watkins on 10/10/18. (djy, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
WILLIAM PORTER,
Petitioner,
v.
UNITED STATES OF
AMERICA,
Respondent.
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CASE NO. 1:15-CV-790-WKW
(WO)
MEMORANDUM OPINION AND ORDER
On April 4, 2018, the Magistrate Judge filed a Recommendation that William
Porter’s 28 U.S.C. § 2255 motion and subsequent amendment be dismissed with
prejudice. (Doc. # 39.) On May 7, 2018, Petitioner William Porter filed objections.
(Doc. # 40.) The court has conducted an independent and de novo review of those
portions of the Recommendation to which objection is made. See 28 U.S.C.
§ 636(b). For the following reasons, the objections are OVERRULED and the
recommendation is ADOPTED.
I. DISCUSSION
Through counsel, Porter objects to the Recommendation that his § 2255
motion and subsequent amendment be denied and dismissed. Counsel reargues the
claims presented in Porter’s § 2255 motion and in his later amendment. Those
claims are (1) that Porter’s trial counsel was constitutionally ineffective in failing to
advise him that he could be sentenced as a career offender under the guidelines, and
(2) that trial counsel was constitutionally ineffective for failing to object to the
residual clause of the career offender enhancement as void for vagueness. The
amendment to Porter’s § 2255 motion added claims that his trial counsel was
ineffective for (1) advising him that the appeal/collateral attack waiver in his plea
agreement was only boilerplate language that would not prevent him from
challenging his status as a career offender in appellate and collateral proceedings,
and (2) failing to cite Begay v. United States, 553 U.S. 137 (2008), and Chambers v.
United States, 555 U.S. 122 (2009), to support his argument at sentencing that the
offense conduct underlying his conviction for second-degree escape was not a crime
of violence for purposes of the career offender guideline.
A. Counsel’s Advice Regarding Career Offender Enhancement
In his initial § 2255 motion, Porter maintains that he entered his guilty plea
and original plea agreement without being informed by his trial counsel that the
career offender enhancement could be applied to him. He also alleges that his
counsel led him to falsely believe he could avoid application of the career offender
enhancement by waiving completion of a presentence investigation report (PSI) and
immediately executing a plea agreement. Porter also maintains that even after he
entered an amended plea agreement, because of counsel’s inadequate advice, he did
not understand he could be sentenced as a career offender.
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As correctly stated in the Magistrate Judge’s Recommendation, Porter can
demonstrate no Strickland prejudice resulting from his trial counsel’s inadequate
advice regarding the career offender enhancement because the record demonstrates
he was well aware the enhancement could apply. The addendum to the original plea
agreement specifically contemplated the possibility that the career offender
enhancement could apply, (Doc. # 4-5, at 4), and Porter’s counsel argued at
sentencing that it should not. (Doc. # 4-5, at 5.) When the district court rejected the
original plea, it gave Porter an opportunity to withdraw it, and advised him that the
court “may dispose of the case less favorably toward [Porter]” than the plea
agreement contemplated. (Doc. # 11-4, at 6.) Yet, Porter chose to stand by his
decision to plead guilty and accepted an amended plea agreement. The amended
plea agreement under which Porter ultimately pleaded guilty contained the same
terms as the original, except that the parties agreed that the appropriate sentence was
one within the applicable guidelines range as determined by the district court at
sentencing. (Doc. # 11-5.) At the second sentencing hearing, Porter’s counsel — at
Porter’s request — again objected to application of the career offender enhancement.
(Doc. # 13-3, at 3, 7-9.) Because the record makes plain that Porter knew during
both plea negotiations he could be sentenced as a career offender, Porter cannot
establish Strickland prejudice based on his counsel’s failure to inform him of that
possibility.
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Moreover, the Magistrate Judge advised Porter of the sentencing possibilities
during the plea colloquy, undermining his claim that trial counsel’s misadvice was
prejudicial. See United States v. Wilson, 245 F. App’x 10, 11-12 (11th Cir. 2007)
(“During the plea colloquy, the district court itself explained to Wilson—in detail—
the consequences of the plea agreement, range of punishment, and sentencing
contingencies before accepting Wilson’s guilty plea. Thus, any failure on the part
of Wilson’s counsel to clearly explain the possible punishment was cured by the
district court.”); United States v. Carter, 688 F. App’x 595, 602 (11th Cir. 2017)
(“Ms. Carter cannot now blame [her counsel] for allegedly misleading her when the
district court asked her if she understood the parameters of her plea agreement and
she answered in the affirmative.”). In this case, Porter told the court he understood
the maximum possible sentence for his offense, (Doc. # 11-3, at 6-7), that the
advisory guidelines range could not be calculated until after the PSI had been
completed, and that the district court could impose a sentence greater or lesser than
the guidelines range. (Doc. # 11-3, at 13). Since he was on notice of all of the
sentencing contingencies, Porter cannot establish that he was prejudiced by his
counsel’s failure to advise him of the application of the career offender guideline. 1
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For the same reason, Porter cannot argue his counsel was constitutionally ineffective
because he mistakenly told Porter that he could avoid application of the career offender
enhancement by waiving completion of the PSI and immediately executing a plea agreement. As
demonstrated above, Porter was clearly aware that the proper sentence could not be calculated
until after completion of the PSI and that he could be subject to the career offender enhancement.
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B. The Career Offender Guideline and Johnson2
In his initial § 2255 motion, Porter asserts two grounds for relief based on the
purported vagueness of the career offender guideline. The first he frames as an
ineffective assistance claim based on trial counsel’s failure to argue that the career
offender guideline is unconstitutionally vague.
The second is framed as a
substantive claim that, following Johnson, Porter’s sentence was improperly
enhanced because the career offender guideline is unconstitutionally vague. His first
argument is unavailing because Johnson was decided well after Porter’s sentencing,
and counsel cannot be deemed ineffective for failing to anticipate such a change in
the law. See Denson v. United States, 804 F.3d 1339, 1344 (11th Cir. 2015) (“Trial
counsel is not required to make argument or raise objections based on predictions as
to how the law may develop.”). His second argument is foreclosed by Beckles v.
United States, 137 S. Ct. 886 (2017), which held that the sentencing guidelines are
not subject to vagueness challenges.3 Porter is therefore not entitled to relief on
either of these grounds.
2
Porter’s amended § 2255 motion argues that the career offender enhancement does not
apply to him because his conviction of second-degree escape is not a “crime of violence” under
U.S.S.G. § 4B1.1(a). But Porter already raised this issue on direct appeal, and the Eleventh Circuit
held that it was barred by the valid appeal/collateral attack waiver in his plea agreement. United
States v. Porter, 591 F App’x 724, 724-25 (11th Cir. 2014). Accordingly, the court declines to
address the merits of this claim.
3
In his Objections, Porter acknowledges that the Recommendation correctly found that
his vagueness challenge is foreclosed by Beckles. (Doc. # 40, at 29.).
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C. Amendment to § 2255 Motion
Porter amended his initial § 2255 motion to add claims that his counsel was
ineffective for (1) advising him that the appeal/collateral attack waiver in his plea
agreement was only boilerplate language that would not prevent him from
challenging his status as a career offender in appellate and collateral proceedings,
and (2) failing to cite Begay v. United States, 553 U.S. 137 (2008), and Chambers v.
United States, 555 U.S. 122 (2009), to support his argument at sentencing that his
conviction for second-degree escape was not a crime of violence for purposes of the
career offender guideline. As both parties acknowledge, this amendment was
untimely. Therefore, unless these new claims relate back under Federal Rule of Civil
Procedure 15(c), they are barred by the one-year time limitation of § 2255(f).
The Recommendation correctly concluded that these new claims bear no legal
or factual relationship to Porter’s earlier claims and instead seek to insert new
theories of relief. In order for an amendment to a § 2255 motion to relate back under
Rule 15(c), “the untimely claim must have more in common with the timely filed
claim than the mere fact that they arose out of the same trial and sentencing
proceedings.” Davenport v. United States, 217 F.3d 1341, 1344 (11th Cir. 2000).
“Instead, in order to relate back, the untimely claim must have arisen from the same
set of facts as the timely filed claim, not from separate conduct or a separate
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occurrence in both time and type.” Id. (internal quotations omitted). The Eleventh
Circuit “concluded in Davenport that new claims alleging different trial errors were
not part of the same course of conduct, and, as such, did not relate back to the date
of the appellant’s timely filed § 2255 motion.” Farris v. United States, 333 F.3d
1211, 1215 (11th Cir. 2003).
Here, Porter alleges new trial errors that were not part of the same course of
conduct as his original claims. In his initial § 2255 motion, Porter argued that his
counsel was constitutionally deficient for: (1) not advising Porter that he could
potentially be subject to the career offender enhancement; and (2) not objecting to
the residual clause as unconstitutionally vague. Porter’s new claims are premised
on ineffective assistance regarding: (1) counsel’s misadvice with respect to the
appeal/collateral attack waiver; and (2) counsel’s failure to cite Begay and Chambers
in objecting to the application of the career offender enhancement.
The Recommendation correctly found that counsel’s misadvice with respect
to the appeal/collateral attack waiver is based on an entirely different set of facts
than counsel’s alleged errors with respect to the career offender enhancement.
Accordingly, the ineffective assistance claim based on counsel’s representations
regarding the appeal/collateral attack waiver does not relate back and is therefore
time-barred.
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The Recommendation also correctly found that the ineffective assistance
claim based on counsel’s failure to cite Begay and Chambers at sentencing does not
relate back. This argument is based on trial counsel’s conduct in arguing to the court
that the career offender enhancement should not apply.
It bears no factual
relationship to the claim that, in advising Porter, his trial counsel did not inform him
that he was potentially subject to the enhancement. Moreover, trial counsel’s
conduct in arguing that the enhancement does not apply to Porter is based on
separate conduct from trial counsel’s alleged failure to object to the enhancement as
wholly unconstitutional. Porter attempts to gloss over these distinct courses of
conduct by arguing that his amendment “arises from the same conduct and
occurrences—trial counsel’s representations to Mr. Porter during the plea process
regarding the career offender enhancement—upon which his original ineffective
assistance claim was based.” (Doc. # 40, at 30.) But as the Eleventh Circuit has
stated, “the mere fact that [the new claims] arose out of the same . . . sentencing
proceedings” is not enough to support an untimely amendment. Davenport, 217
F.3d at 1344. Because the claims in Porter’s amendment do not relate back under
Rule 15(c) to claims in the timely § 2255 motion, the new claims are time-barred
under § 2255(f).
Accordingly, it is ORDERED as follows:
1.
Porter’s objection (Doc. # 40) is OVERRULED;
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2.
The Recommendation (Doc. # 39) is ADOPTED;
3.
Porter’s 28 U.S.C. § 2255 motion and amended § 2255 motion are
DENIED; and
4.
This action is DISMISSED with prejudice.
A separate final judgment will be entered.
DONE this 10th day of October, 2018.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE
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