McDaniel v. United States of America

Filing 9

MEMORANDUM OF OPINION. Signed by Judge L Scott Coogler on 2/12/2018. (PSM)

FILED
2018 Feb-12 PM 12:55
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
DAMIEN LARON MCDANIEL,
Petitioner,
vs.
UNITED STATES OF AMERICA
Respondent.

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2:16-cv-08012-LSC
(2:13-cr-67-LSC-JEO)

MEMORANDUM OF OPINION
This is a motion to vacate, set aside, or correct a sentence pursuant to 28
U.S.C. § 2255, filed by petitioner Damien Laron McDaniel (“McDaniel”). (Docs.
1 & 2.) The Government opposes the motion. (Doc. 5.) McDaniel has replied in
support. (Doc. 8.) For the reasons set forth below, the motion is due to be denied.
I.

Background
In October 2013, a six-count superseding indictment was issued against

McDaniel. Count One charged McDaniel with possession with intent to distribute
cocaine hydrochloride, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C); Count
Two charged McDaniel for using and carrying a firearm in relation to the drug
trafficking offense alleged in Count One, in violation of 18 U.S.C. §
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924(c)(1)(A)(i); Counts Three and Six charged McDaniel with being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g); Count Four charged
McDaniel with possession with intent to distribute marijuana, in violation of 21
U.S.C. §§ 841(a)(1) and (b)(1)(D); and Count Five charged McDaniel with
possessing a firearm in furtherance of the drug trafficking offense alleged in Count
Four, in violation of 18 U.S.C. § 924(c)(1)(A).
On December 6, 2013, this Court set a trial date of January 6, 2014. On
December 17, 2013, McDaniel filed a pro se motion requesting new counsel to be
appointed. On January 6, 2014, McDaniel’s appointed counsel was allowed to
withdraw, and McDaniel retained private counsel of his choosing. The jury panel
was cancelled, and the trial was re-scheduled for February 7, 2014.
Before trial, McDaniel’s new counsel negotiated a binding plea agreement
with the Government, whereby the Government agreed to dismiss Count Five,
saving McDaniel an additional 25 years’ imprisonment. McDaniel agreed to plead
guilty to the remaining counts, and he stipulated to a total sentence of 312 months’
imprisonment, pursuant to the binding plea agreement.
On February 7, 2014, after a hearing in which this Court fully explained to
McDaniel the binding aspect of his plea agreement, McDaniel pleaded guilty to

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Counts One, Two, Three, Four, and Six. As part of the plea agreement, the
Government agreed to dismiss Count Five at the sentencing hearing.
Before sentencing, McDaniel filed a pro se motion to suppress evidence. At
the sentencing hearing on May 27, 2014, McDaniel made a pro se oral motion to
withdraw his guilty plea. After a full hearing on the reasons why he wanted to
withdraw his guilty plea, this Court denied the motion. Abiding by the binding plea
agreement, this Court sentenced McDaniel to a total sentence of 312 months’
imprisonment and entered judgment on May 29, 2014.
McDaniel appealed his conviction and sentence, raising the issue of the
denial of his motion to withdraw his guilty plea and ineffective assistance of
counsel. The Eleventh Circuit Court of Appeals affirmed the conviction and
sentence on March 11, 2015, finding that this Court did not abuse its discretion in
denying McDaniel’s motion to withdraw his guilty plea. The Eleventh Circuit did
not entertain the ineffective assistance of counsel claim on appeal. That decision
was issued as a mandate on April 9, 2015.
McDaniel timely filed the instant motion on March 7, 2016, and it is his first
such motion.
II.

Discussion

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McDaniel raises three ineffective assistance of counsel claims in this
proceeding. To succeed on a claim of ineffective assistance of counsel, a defendant
must prove both that his counsel’s performance was deficient and that that
deficient performance prejudiced his case. Strickland v. Washington, 466 U.S. 668
(1984). More specifically, McDaniel must show that (1) identified acts or omissions
of counsel fell below an objective standard of reasonableness and (2) that his
counsel’s alleged errors or omissions resulted in prejudice to him to such an extent
that, without counsel’s alleged errors or omissions, there is a reasonable probability
that the outcome of his trial would have been different. Yordan v. Dugger, 909 F.2d
474, 477 (11th Cir. 1990).
In analyzing counsel’s performance under the performance prong of
Strickland, this Court must presume that the conduct of counsel was reasonable. Id.
A “[d]efendant must prove deficient performance by a preponderance of
competent evidence, and the standard is ‘reasonableness under prevailing
professional norms.’” Gallo-Chamorro v. United States, 233 F.3d 1298, 1303-04
(11th Cir. 2000) (footnotes omitted). Additionally, the Eleventh Circuit has
described a defendant’s burden with regard to the deficient performance prong of
an ineffective assistance of counsel claim as follows:

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Because there is such a wide range of constitutionally acceptable
performance, a petitioner seeking to rebut the presumption of
adequate performance must bear a heavy burden:
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. We ask only whether some reasonable lawyer at the
trial could have acted, in the circumstances, as defense counsel
acted at trial. . . . We are not interested in grading lawyers’
performances; we are interested in whether the adversarial
process at trial, in fact, worked adequately.
Thus, in order to show that counsel’s performance was unreasonable,
the petitioner must establish that no competent counsel would have
taken the action that his counsel did take.
Grayson v. Thompson, 257 F.3d 1194, 1216 (11th Cir. 2001) (internal citations
omitted).
Similarly, the Eleventh Circuit has described a defendant’s burden in
demonstrating that his counsel’s deficient performance prejudiced his case as
“high,” noting that it is not enough to show that any errors had some conceivable
effect on the outcome of the proceeding. Robinson v. Moore, 300 F.3d 1320, 1343-44
(11th Cir. 2002).
Finally, “[i]t is well established that a habeas petitioner must demonstrate
both deficient performance and prejudice, and that a failure to demonstrate either
prong constitutes a failure to demonstrate ineffective assistance of counsel.”
Bottoson v. Moore, 234 F.3d 526, 532 (11th Cir. 2000).
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A.

Counsel’s Failure to Support McDaniel’s Pro Se Motion to
Withdraw his Guilty Plea at his Sentencing

Contrary to McDaniel’s claim that counsel should have supported his
motion to withdraw his guilty plea, his (retained) counsel actually negotiated a
favorable deal for McDaniel by convincing the Government to dismiss Count Five,
which carried a mandatory consecutive sentence of 25 years’ imprisonment. To the
extent McDaniel is really arguing that his guilty plea was not knowing and
voluntary, such an argument is not only procedurally barred because it has already
been rejected on direct appeal but it is also belied by the record. McDaniel signed
his name at the end of the binding plea agreement itself, representing that he had
“read and underst[ood] the provisions” of the agreement; he had “discussed the
case and [his] constitutional and other rights with [his] lawyer”; and he was
“satisfied” with his lawyer’s representation. (Crim. Doc. 25 at 15-16.) McDaniel
further represented that he had “read, underst[ood], and approve[d] all of the
provisions of [the] Agreement, both individually and as a total binding agreement.”
(Id. at 16.) Similarly, counsel represented that he discussed the case with McDaniel
in detail, that he advised McDaniel of all rights and all possible defenses, and that
McDaniel conveyed he “underst[ood] this Agreement” and consented to all of its
terms. (Id. at 17.)

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Moreover, this Court conducted a thorough colloquy with McDaniel
pursuant to Rule 11 of the Federal Rules of Civil Procedure and determined that
McDaniel’s plea was knowing and voluntary. McDaniel acknowledged under
penalty of perjury that: he read the guilty plea advice of rights certification form
and the plea agreement (Crim. Doc. 48 at 4, 18); his attorney reviewed each
document with him before he signed them (id. at 5, 18); and he understood each
document (id. at 3-4, 5, 18). McDaniel stated that his retained attorney was “great”
and he had no complaints with the representation he received. (Id. at 4.) This
Court then explained to McDaniel the elements of the charged offenses, the
possible penalties, and the consequences of pleading guilty, and McDaniel
acknowledged that he understood. (Id. at 9-13, 14-18.) McDaniel also acknowledged
that the factual basis in the plea agreement was substantially correct. (Id. at 19.) He
agreed that he had entered into a binding plea agreement with the Government.
Finally, McDaniel acknowledged that no one coerced him in any way to plead
guilty. (Id. at 20.) He then entered guilty pleas to Counts One, Two, Three, Four,
and Six. (Id. at 21.) This Court accepted McDaniel’s guilty pleas, finding McDaniel
to be competent and informed, and aware of the nature of the charges and the
consequences of his plea. (Id.) This Court further found “that the plea of guilty is a

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knowing and voluntary plea supported by an independent basis in fact containing
each of the essential elements of the offenses.” (Id.)
When, four months later at his sentencing hearing, McDaniel made his pro se
oral motion to withdraw his pleas, this Court heard from McDaniel on the motion.
(Crim. Doc. 49 at 11-19.) McDaniel complained that he received the Presentence
Investigation Report (“PSR”) 12 days before sentencing and as a result he had
been denied due process. (Id. at 11.) He also stated:
I now ask this Honorable Court for a withdrawal of my plea
agreement because there are many other things relating to due process
as well as Sixth Amendment violations pertaining to my case that has
recently become aware to the defendant.
I also beg this Honorable Court for a new counsel that may infer
due diligence to a client who is considered innocent until proven
guilty. If this Honorable Court would not appoint new counsel to this
indigent defendant, the defendant prays that the court will provide
sufficient time and the legal resources to the defendant so that he may
represent himself sufficiently.
Your honor, I pray you understand that there are many things
wrong with my PSI as well as my plea agreement.
(Id. at 11-12.)
This Court then entered into the following exchange with McDaniel:
The Court:

All right. Let’s kind of take things one step at a
time. You had counsel originally appointed, I
believe, in this case. I’m working toward getting

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your electronic file up here for just a second. I
think it was Mr. Collins, Derrick Collins.
McDaniel:

Yes, Sir. Correct, Your Honor.

The Court:

And you asked that this Court terminate his
representation of you and allow your current
counsel to represent you?

McDaniel:

Yes, Sir. Yes, Sir.

The Court:

You actually retained him, correct?

McDaniel:

Yes, Sir.

The Court:

Is that correct?

McDaniel:

Yes, Sir, Your Honor.

The Court:

And we had your case set for trial, If I remember
right, the first time and had a jury - - was it the
morning of the trial? I can’t remember. It was
morning of the trial - - yeah, it was the morning we
had your trial ready to start that you did that, when
we replaced your counsel. Remember that?

McDaniel:

Yes, Sir, Your Honor.

The Court:

And you and I had a long conversation at that time.
And your current counsel said he would be ready
to try the case and we actually moved the case off a
number of months to allow him to do that. We had,
I think, some capital cases and what-not going, if I
remember right. And we were glad to
accommodate him to move the case off. Then
when we got ready for the trial, you entered into a
binding plea with the government, binding plea as I
explained means I don’t really have a choice. I can
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either reject it totally, which I can do now, or I can
accept it. And the binding plea was for 312 months
for the total counts. And, see, the plea agreement
in this particular point in time is, I am either bound
by it or I am not.
McDaniel:

Yes, Sir, Your Honor.

The Court:

And the presentence investigation is to help me
decide whether or not I want to go along with that
plea agreement or not. If I am going to reject the
plea agreement, I guess then the presentence
investigation, and you really want the plea
agreement, you want that 312 months, then sure, I
can see how that could affect you in the negative
way. But if I am going to accept that plea
agreement and sentence you to 312 months, I don’t
know how in the world anything in your
presentence investigation would be affecting you.
Do you understand what I am saying?

McDaniel:

Yes, Sir, Your Honor.

(Id. at 12-14.)
This Court then asked McDaniel about the pro se motion to suppress
McDaniel filed. (Id. at 14-15.) McDaniel stated that he wanted to suppress evidence
that was seized from him on September 19, 2012 because “[he] hadn’t did anything
to warrant an intrusion of my person on that day.” (Id. at 15.) This Court reminded
McDaniel of his statements at the plea hearing:
The Court:

You remember when we had a conversation at the
time I took the plea agreement and there was a
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factual basis in the plea agreement, do you
remember that?
McDaniel:

It was what, sir?

The Court:

A factual basis. A bunch of facts written out. Show
him the plea agreement. Remember, we talked
about the factual basis of your plea and I asked you
if all that was true? And what did you tell me then?

McDaniel:

Yes, Sir, I took - - -

The Court:

You said everything was true. And I said you are
under oath now, you can’t lie to me. If you lie to
me, what did I tell you could happen?

McDaniel:

I would think perjury.

The Court:

That’s right. You would be charged with an
additional count of perjury. I said don’t lie to me,
tell me the truth.

McDaniel:

No, sir, I won’t.

The Court:

I am talking then. At that time, you told me what
was in the plea agreement was true. Now, are you
telling me now it’s not true what’s in the plea
agreement?

McDaniel:

I was taking advice of my attorney.

The Court:

That’s not what I asked you.

McDaniel:

Yes, sir, that’s not true right there. That’s written
down.

The Court:

Okay. Uh-huh. Any other reason why you want to - then you said you want to withdraw your plea
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because there are things in the presentence report
that are inaccurate and wrong.
McDaniel:

Yes, sir.

The Court:

What?

McDaniel:

They have in there about murder, that I was
accused of, and that was clear of and they still in
there, and I felt that it would create a bias. It would
make - -

The Court:

Bias for who? Like me against you?

McDaniel:

Yes, sir. Yes, sir, I do.

The Court:

All right. Well, see, this is the thing. If I am
prepared to accept your guilty plea - - I mean your
sentence, this plea agreement, and sentence you to
how you say you originally wanted to be sentenced
--

McDaniel:

Yes, sir.

The Court:

- - Then clearly I might have a bias against you or
not, but I am not being affected by it.

McDaniel:

Yes, sir.

(Id. at 15-18.)
This Court then asked McDaniel if he wanted to withdraw his pleas knowing
that it would open him up to the entire range of punishment. (Id. at 18.) McDaniel

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still wanted to withdraw them. (Id. at 18.) This Court then denied McDaniel’s
motion to withdraw his guilty pleas and his motion to suppress. (Id. at 19.)
McDaniel argues in this § 2255 motion that any reasonably competent
attorney would have supported his motion to withdraw his guilty plea. On the
contrary, his counsel actually saved him a potential 25-year consecutive sentence
by negotiating this plea bargain, and McDaniel also avoided additional perjury
charges. For McDaniel to now claim that he was “suffering from severe stress and
duress” and that his “counsel and the Government were manipulating him into
pleading guilty” is simply unsupported by the record.
Moreover, there is nothing in the record to indicate that even had
McDaniel’s attorney supported this pro se motion to withdraw the guilty plea, that
this Court would have granted the motion. This Court reached its decision on the
withdrawal motion after a thorough analysis of the situation. Not only was
McDaniel’s attorney not deficient in his performance, but McDaniel certainly was
not prejudiced by the Court accepting the negotiated binding plea agreement.
B.

Counsel’s Failure to Argue that the 312 Month Sentence was
Greater than Necessary at Sentencing

McDaniel next argues that his counsel was constitutionally ineffective for
failing to argue that 312 months’ imprisonment (the agreed-upon sentence in the
binding plea agreement that he entered into voluntarily) was greater than necessary
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under the circumstances of his case. McDaniel’s main argument is that based upon
his conviction for Counts One, Two, Three, Four, and Six, his sentencing guideline
range was 140-175 months, plus a consecutive sentence of 60 months, and that a
312 month sentence exceeds that range. What McDaniel ignores, however, is that
had he been convicted for Count Five as well, his sentencing guideline range would
have been 140-175 months, plus a consecutive sentence of 360 months. By
negotiating away a conviction for Count Five, McDaniel’s attorney actually saved
him 300 months of imprisonment. McDaniel’s argument that his attorney was
ineffective at sentencing for failing to ask the Court to sentence him below the
agreed-upon total sentence of 312 months is unsupported by the record.
Considering McDaniel’s criminal history (Category VI) and the circumstances of
this case, had McDaniel’s attorney argued for a lesser sentence, the argument
would not have been successful.
C.

Counsel’s Failure to Object to the Sentence Being Based on
“Brandishing” of the Firearm

McDaniel’s final ineffective assistance of counsel claim is based on incorrect
facts. McDaniel claims that he was sentenced for “brandishing” the firearm and
therefore received a 72-month consecutive sentence for Count Two based on the
brandishing. Nowhere in the record is there any mention of McDaniel brandishing
the firearm. It is not in the indictment or plea agreement, nor is it in the PSR. The
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Court based its sentence for Count Two on McDaniel using and carrying the
firearm, not brandishing it. While it is true that this Court sentenced McDaniel to
72 months for Count Two, the statute allowed the Court to sentence him from 60
months to Life imprisonment for that conviction. The Court simply fashioned its
sentence in such a manner to reach the 312-month total imprisonment term, as
agreed upon by the parties in the binding plea agreement. The judgment provided a
240 month sentence for Count One, a 120 month sentence for Counts Three and
Six, and a 60 month sentence for Count 4, each of these counts to be run
concurrently with the other. The judgment provided a 72 month sentence for
Count Two, to be run consecutively to Counts 1, 3, 4, and 6. In this manner, the
Court achieved a total sentence of 312 months. So while the Court could have
imposed the minimum 60 month sentence for Count Two, it chose 72 months to
reach the desired goal. Counsel was not ineffective for failing to object to the
Court’s sentence, since McDaniel was not sentenced for brandishing the firearm.
III.

Conclusion
Because McDaniel has failed to show that his counsel’s representation fell

below an objective standard of reasonableness and has failed to demonstrate a
reasonable probability that counsel’s performance affected the outcome of the case,
there is no basis for granting relief for ineffective assistance of counsel. For this

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reason, McDaniel’s § 2255 motion is due to be denied and this action dismissed
with prejudice.
Additionally, a certificate of appealability will not be issued by this Court.
This Court may issue a certificate of appealability “only if the applicant has a made
a substantial showing of the denial of a constitutional right.”

28 U.S.C. §

2253(c)(2). To make such a showing, a “petitioner must demonstrate that
reasonable jurists would find the district court’s assessment of the constitutional
claims debatable and wrong,” Slack v. McDaniel, 529 U.S. 473, 484 (2000), or that
“the issues presented were adequate to deserve encouragement to proceed
further.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (internal quotations
omitted). McDaniel’s claims do not satisfy either standard. Accordingly, insofar as
an application for a certificate of appealability is implicit in McDaniel’s motion, it is
due to be denied.
A separate order will be entered consistent with this opinion.
DONE and ORDERED on February 12, 2018.

_____________________________
L. Scott Coogler
United States District Judge
160704

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