Leatherwood v. United States of America

Filing 9

MEMORANDUM OPINION. Signed by Judge L Scott Coogler on 1/21/2014. (MSN)

FILED
2014 Jan-21 PM 03:51
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
RICKY GUY LEATHERWOOD,
Movant,
vs.
UNITED STATES OF AMERICA,
Respondent.

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2:10-cv-8054-LSC-JHE
2:08-cr-0064-LSC-JHE

MEMORANDUM OPINION
This is a motion to vacate, set aside, or correct a sentence, brought by a federal
prisoner, pursuant to 28 U.S.C. § 2255.
PROCEDURAL HISTORY
The movant, Ricky Guy Leatherwood, was convicted in this court on July 2, 2008, on
his plea of guilty1 to one count of conspiracy to possess with intent to distribute fifty grams
or more of cocaine base, five kilograms or more of cocaine hydrochloride, and marijuana,
in violation of 21 U.S.C. §§ 846, 841(a)(1), and (b)(1)(A)(Count 1s); one count of possession
with intent to distribute five grams or more of cocaine base, in violation of 21 U.S.C. §
841(a)(1) and (b)(1)(B)(Count 8s); one count of criminal forfeiture, in violation of 21 U.S.C.
§ 853(a)(1) and (2)(Count 34s); and two counts of use of a communication device to
facilitate a drug trafficking crime, in violation of 21 U.S.C. § 843(b)(Counts 49s and 52s).

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Leatherwood entered his guilty plea without the benefit of a written plea agreement.

He was sentenced on October 23, 2008, to a term of imprisonment for 120 months on each
count, to be served concurrently, and to be followed by a 60-month supervised release term.
On appeal, Leatherwood’s court-appointed attorney Thomas Wolsoncroft filed a
motion to withdraw, supported by an Anders brief. The Eleventh Circuit Court of Appeals
affirmed Leatherwood’s conviction and sentences on September 17, 2009, noting that its
“independent examination of the entire record revealed no arguable issues of merit.”
CLAIMS
In support of his motion to vacate, Leatherwood claims that he received
constitutionally ineffective counsel because counsel:
1. failed to inform him that he could be sentenced below the mandatory
minimum 120-month sentence pursuant to the “safety-valve”; and
2. failed to argue that his sentence should be reduced pursuant to the Fair
Sentencing Act of 2010, which was pending at the time.
In response to the court’s order to show cause, the respondent has filed an answer in
which it maintains that the motion to vacate is due to be denied. In response, Leatherwood
has filed a traverse.
ANALYSIS
The United States Supreme Court has established a national standard for judging the
effectiveness of criminal defense counsel under the Sixth Amendment. “The benchmark for
judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the
proper functioning of the adversarial process that the trial cannot be relied upon as having

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produced a just result.” Strickland v. Washington, 466 U.S. 668 (1984). The Court
elaborated:
A convicted defendant’s claim that counsel’s assistance was so defective as to
require reversal of a conviction or death sentence has two components. 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, a trial whose result is reliable.
Strickland, 466 U.S. at 687. “Because the [petitioner] must prove both deficiency and
prejudice, a [petitioner’s] failure to prove either will be fatal to his claim.” Johnson v. Scott,
68 F.3d 106, 109 (5th Cir. 1995).
Under the Strickland test, the petitioner must initially show that counsel’s
representation fell below an “objective standard of reasonableness.” Strickland, 466 U.S. at
688. “While it need not be errorless, counsel’s advice ‘must be within the realm of
competence demanded of attorneys representing criminal defendants.’” Jones v. White, 992
F.2d 1548, 1557 (11th Cir. 1993)(quoting Stano v. Dugger, 921 F.2d 1125, 1151 (11th
Cir.)(en banc), cert. denied, 502 U.S. 835 (1991)). In making such an evaluation, “the court
should recognize that counsel is strongly presumed to have rendered adequate assistance and
made all significant decisions in the exercise of reasonable professional judgment.”
Strickland, 466 U.S. at 690. The effectiveness or ineffectiveness of counsel must be
evaluated by consideration of the totality of the circumstances. Stanley v. Zant, 697 F.2d
955, 962 (11th Cir. 1983), cert. denied, 467 U.S. 1219 (1984).
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The second requisite element in a claim of ineffective assistance of counsel is a
showing of prejudice. Even if counsel made an error so egregious as to be outside the broad
scope of competence expected of attorneys, a movant can obtain relief only if the error
caused actual prejudice. Strickland, 466 U.S. at 691-92. In order to establish actual
prejudice, a petitioner must show that “there is a reasonable probability that but for the
attorney’s unprofessional errors, the result of the proceeding would have been different.”
Armstead v. Scott, 37 F.3d 202, 207 (5th Cir. 1994). A reasonable probability is a probability
sufficient to undermine confidence in the outcome of the proceedings. Strickland, 466 U.S.
at 694. Furthermore, in addition to showing that the outcome would have been different, a
petitioner must prove that “counsel’s deficient performance caused the outcome to be
unreliable or the proceeding to be fundamentally unfair.” Armstead v. Scott, 37 F.3d 202,
207 (5th Cir. 1994)(citing Lockhart v. Fretwell, 113 S. Ct. 838, 844 (1993)). “In other
words, a ‘counsel’s unprofessional errors [must] so upset the adversarial balance between the
defense and prosecution that the trial was rendered unfair and the verdict suspect.’” Weekley
v. Jones, 56 F.3d 889, 897 (8th Cir. 1995)(quoting Fretwell, 113 S. Ct. at 842).
“Unreliability or unfairness does not result if the ineffectiveness of counsel does not deprive
the defendant of any substantive or procedural right to which the law entitles him.” Fretwell,
113 S. Ct. at 844.
The Strickland two-part test applies to challenges to guilty pleas based on ineffective
assistance of counsel. United States v. Pease, 240 F.3d 938, 941 (11th Cir. 2001); Hill v.

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Lockhart, 474 U.S. 52, 60 (1985). In a guilty plea context, a defendant must show “a
reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and
would have insisted on going to trial.” Gordon v. United States, 518 F.3d 1291, 1297 (11th
Cir. 2008)(quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)).
A. Safety-Valve Provision
Leatherwood first claims that counsel was ineffective for failing to inform him that
he could be sentenced below the mandatory minimum 120-month sentence pursuant to the
“safety-valve.” A district court may impose a sentence of imprisonment below the statutory
minimum if the defendant meets the “safety-valve” criteria set forth in 18 U.S.C. § 3553(f).
Title 18 U.S.C. § 3553(f) provides:
(f) Limitation on applicability of statutory minimums in certain cases.-Notwithstanding any other provision of law, in the case of an offense under
section 401, 404, or 406 of the Controlled Substances Act (21 U.S.C. 841, 844,
846) or section 1010 or 1013 of the Controlled Substances Import and Export
Act (21 U.S.C. 960, 963), the court shall impose a sentence pursuant to
guidelines promulgated by the United States Sentencing Commission under
section 994 of title 28 without regard to any statutory minimum sentence, if the
court finds at sentencing, after the Government has been afforded the
opportunity to make a recommendation, that-(1) the defendant does not have more than 1 criminal history
point, as determined under the sentencing guidelines;
(2) the defendant did not use violence or credible threats of
violence or possess a firearm or other dangerous weapon (or
induce another participant to do so) in connection with the
offense;
(3) the offense did not result in death or serious bodily injury to
any person;
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(4) the defendant was not an organizer, leader, manager, or
supervisor of others in the offense, as determined under the
sentencing guidelines and was not engaged in a continuing
criminal enterprise, as defined in section 408 of the Controlled
Substances Act; and
(5) not later than the time of the sentencing hearing, the
defendant has truthfully provided to the Government all
information and evidence the defendant has concerning the
offense or offenses that were part of the same course of conduct
or of a common scheme or plan, but the fact that the defendant
has no relevant or useful other information to provide or that the
Government is already aware of the information shall not
preclude a determination by the court that the defendant has
complied with this requirement.
Leatherwood alleges that he met all the requirements for application of the “safetyvalve” and, but for counsel’s failure to discuss the “safety-valve” provision with him or argue
in court for a “safety-valve” reduction, he would have been eligible for a sentence reduction.
To meet the requirements of the “tell-all” provision of the “safety-valve,” a defendant
has an “affirmative responsibility to ‘truthfully disclose to the government all information
and evidence that he has about the offense and all relevant conduct.’” United States v.
Johnson, 375 F.3d 1300, 1302 (11th Cir. 2004)(citing United States v. Yate, 176 F.3d 1309,
1310 (11th Cir. 1999)). The offense for which the defendant is convicted determines the
scope of information a defendant must disclose. Id. (citing United States v. Figueroa, 199
F.3d 1281, 1283 (11th Cir. 2000).
In response to the allegations against him, Leatherwood’s court-appointed attorney,
Thomas Wolsoncroft, has submitted an affidavit. Doc. 6-3. In his affidavit, Mr. Wolsoncroft

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states that on several occasions he discussed possible sentence reductions with Leatherwood,
but Leatherwood affirmed on more than one occasion that he “would not give evidence or
cooperate with the Government.” Id. at 2. Additionally, the government states in its
response to the motion to vacate, that following the plea hearing, the prosecutor, in the
presence of Mr. Wolsoncroft, took an additional, un-required step, and advised Leatherwood
that he would be required to serve the full 10-year sentence unless he cooperated with the
government. Doc. 6 at 12. Leatherwood initially indicated he would “think about it,” but
later in the same conversation stated “he did not want to cooperate with the government.”
Id.
Leatherwood admits that on July 2, 2008, after the plea hearing, he stated that he was
not interested in cooperating with the government. Doc. 8 at 3. He seems to believe that his
statement that he did not want to cooperate should have led Mr. Wolsoncroft to question his
understanding of the benefit of cooperating. Id. However, Mr. Wolsoncroft cannot be held
responsible for reading Leatherwood’s mind. The court concludes that given Leatherwood’s
statements that he was not interested in cooperating, it was reasonable for Mr. Wolsoncroft
to neither advise Leatherwood of his eligibility for the safety-valve, nor move for safetyvalve treatment. Because Leatherwood has not established that counsel’s failure to discuss
the safety-valve with him or raise it in court was deficient, there is no need to address
prejudice. Johnson v. Scott, 68 F.3d 106, 109 (5th Cir. 1995).

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B. Fair Sentencing Act
The Fair Sentencing Act of 2010 (“FSA”), which became effective on August 3, 2010,
lowered the statutory mandatory minimum penalties for crack cocaine offenses under 21
U.S.C. § 841(b). See Fair Sentencing Act of 2010, Pub.L. No. 111–220 § 2(a), 124 Stat. 2372
(2010). Leatherwood was sentenced on October 23, 2008. He claims that Mr. Wolsoncroft
should have argued for his sentence to be reduced pursuant to the FSA, since the law was
pending at the time.
In Dorsey v. United States, 567 U.S. ––, 132 S. Ct. 2321, 2335, 183 L. Ed. 2d 250
(2012), the Supreme Court held that the more lenient mandatory-minimums in the FSA apply
to defendants sentenced after August 3, 2010, the effective date of the FSA, where their
conduct occurred before that date. The Eleventh Circuit Court of Appeals has since held that
the FSA applies retroactively only to those defendants sentenced after August 3, 2010, the
date on which the FSA took effect. United States v. Berry, 701 F.3d 374, 377–78 (11th Cir.
2012) (noting that Dorsey did not suggest that the FSA’s new mandatory minimums should
apply to defendants who were sentenced long before the effective date of the Fair Sentencing
Act).
The Fair Sentencing Act does not apply to Leatherwood since he was sentenced on
October 23, 2008, almost two years before the effective date of the FSA. Thus, even
assuming that Mr. Wolsoncroft should or could have raised this issue at sentencing,
Leatherwood was not prejudiced by that omission since the FSA does not apply to him.

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CONCLUSION
The motion to vacate is due to be DENIED and DISMISSED. An appropriate order
will be entered.
DONE this 21st day of January, 2014.

L. SCOTT COOGLER
UNITED STATES DISTRICT JUDGE
174256

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