Hicks v. United States of America, The
MEMORANDUM OPINION AND ORDER: Petitioner's request for an evidentiary hearing and the motion to set aside Petitioner's sentence are DENIED. Signed by Judge Abdul K Kallon on 11/05/12. (CVA)
2012 Nov-05 PM 04:20
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
THE UNITED STATES OF
Civil Action Number
MEMORANDUM OPINION AND ORDER
Petitioner Walter Hicks (“Petitioner”), a federal prisoner, seeks to have his
sentence vacated, set aside, or corrected pursuant to 28 U.S.C. § 2255. Doc. 1.
Petitioner was convicted in this court on April 21, 2011, pursuant to his plea of
guilty to one count of possession of a firearm by a felon in violation of 18 U.S.C. §
922(g)(1). 2:11-cr-00070-AKK-JEO doc. 21. On July 25, 2011, the court
sentenced Petitioner to a term of imprisonment for thirty months and a $100.00
special assessment fee, followed by a three year term of supervised release. 2:11cr-00070-AKK-JEO doc. 22 at 11. Petitioner did not file a direct appeal but,
instead, alleges ineffective assistance of counsel at his sentencing hearing and
requests that the court reduce the sentence or consider home detention. Doc. 1.
For the reasons stated below, the court DENIES Petitioner’s § 2255 motion.
I. STANDARD OF REVIEW
Following conviction and sentencing, 28 U.S.C. § 2255 allows a federal
prisoner to file a motion in the sentencing court “to vacate, set aside or correct the
sentence” on the basis “that the sentence was imposed in violation of the
Constitution or laws of the United States, or that the court was without jurisdiction
to impose such sentence, or that the sentence was in excess of the maximum
authorized by law, or is otherwise subject to collateral attack[.]” 28 U.S.C. §
2255(a). In order to obtain relief under § 2255, a petitioner must (1) file a nonsuccessive petition or obtain an order from the Eleventh Circuit authorizing a
district court to consider a successive § 2255 motion, 28 U.S.C. § 2255(h); Rule 9,
§ 2255 Rules, (2) file the motion in the court where the conviction or sentence was
received, see Partee v. Attorney Gen. of Georgia, 451 Fed. App’x. 856 (11th Cir.
2012), (3) file the petition within the one-year statute of limitations, 28 U.S.C. §
2255(f), (4) be “in custody” at the time of filing the petition, Spencer v. Kemna,
523 U.S. 1, 7 (1998), (5) state a viable claim for relief under the heightened
pleading standards of § 2255 Rule 2(b), see also McFarland v. Scott, 512 U.S.
849, 856 (1994), and (6) swear or verify the petition pursuant to 28 U.S.C. § 1746.
A hearing may be necessary to resolve claims raised in a petitioner’s § 2255
motion. “In deciding whether to grant an evidentiary hearing, a federal court must
consider whether such a hearing could enable an applicant to prove the petition’s
factual allegations, which, if true, would entitle the applicant to federal habeas
relief.” Schriro v. Landrigan, 550 U.S. 465, 474 (2007). However, “if the record
refutes the applicant’s factual allegations or otherwise precludes habeas relief, a
district court is not required to hold an evidentiary hearing.” Id.
Petitioner asserts that the court should set aside his sentence because his
attorney stated during the sentencing hearing that Petitioner possessed the gun in
question because “someone was ste[a]ling [Petitioner’s] tools.” Doc. 1 at 3.
Petitioner claims he instead informed his attorney that “someone tried to murder
[him] and [he] was in fear for [his] life.” Id. Petitioner further asserts that by
making this false statement, his attorney “made [him] look like a bad person and
that [he] would hurt someone over some tools.” Id. According to Petitioner,
counsel’s performance was constitutionally deficient because counsel “willfully
made falsified statements at his own accord and in the process presented Petitioner
in a negative light causing Petitioner to receive a greater sentence.” Doc. 8 at 2.
Allegedly, “[h]ad counsel investigated the details of the truth, he would have had
enough information to support a downward departure pursuant to U.S.S.G. §
5k2.12.” Id. at 3.
Although “[t]he proper measure of attorney performance remains simply
reasonableness under prevailing professional norms,” Strickland v. Washington,
466 U.S. 668, 688 (1984), the court need not determine whether counsel’s
performance was deficient in this case because Petitioner has made an insufficient
showing of prejudice. See Sauders v. U.S., 278 Fed. App’x. 976, 978 (11th Cir.
2008)(citing Strickland, 466 U.S. at 697). To prove prejudice, “[t]he [petitioner]
must show that there is a reasonable probability that but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. Petitioner cannot make this showing because, despite
his assertions to the contrary, the court actually had knowledge of the fact that an
attempt had been made on Petitioner’s life prior to his arrest for possessing a
firearm. See Presentence Investigation Report at 11. Notwithstanding that fact,
the court found “no reason to depart from the sentence called for by the
application of the guidelines inasmuch as the facts in this case as found are the
kind contemplated by the Sentencing Commission.” Case 2:11-cr-00070-AKKJEO doc. 22 at 10. Moreover, although “when sentencing within the advisory
Guidelines range, the district court is not required to give a lengthy explanation for
its sentence[,]” U.S. v. Rodriguez, 280 F. App’x. 920, 921 (11th Cir. 2008), the
court detailed that it considered factors from 18 U.S.C. § 3553(a), such as “the
nature and circumstances of the offense and the history and characteristics of this
Defendant; the need to reflect the seriousness of the offense, to promote respect
for the law, and to provide just punishment for this offense; the need to afford
adequate deterrence to criminal conduct; the need to protect the public from
further crimes of the Defendant; and finally, the need to provide this Defendant
with needed education and vocational training.” Id. at 11. In short, by finding that
the guideline range is the appropriate sentence for Petitioner, the court implicitly
declined a downward departure. See U.S. v. Dominquez-Chacon, 254 Fed. App’x.
786, 790 (11th Cir. 2007).
The court concludes that Petitioner’s petition is without merit because the
court, in fact, considered all the relevant circumstances and factors in determining
the appropriate sentence for Petitioner, including the information Petitioner
provided about an attempt on his life. In other words, Petitioner has failed to
otherwise show that the court would have sentenced him differently but for his
attorney’s alleged deficiencies. Given Petitioner’s failure to demonstrate prejudice
stemming from his attorney’s alleged deficiencies, the court finds that Petitioner’s
sentence is not due to be set aside because of ineffective assistance of counsel.
Ultimately, while Petitioner obviously disagrees with the court’s sentence, the
court reviewed all the relevant facts, listened to the arguments Petitioner and his
counsel made on Petitioner’s behalf, and concluded that a sentence of thirty
months was not greater than necessary to comply with the statutory purposes of
sentencing. See 18 U.S.C. § 3553(a).
Petitioner has failed to allege facts that, if true, would constitute ineffective
assistance of counsel at his sentencing hearing and entitle him to relief under §
2255. See Schriro, 550 U.S. at 474. Therefore, Petitioner’s request for an
evidentiary hearing and the motion to set aside Petitioner’s sentence are DENIED.
DONE this 5th day of November, 2012.
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE
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