Buford v. United States of America
Filing
15
MEMORANDUM OPINION. Signed by Judge R David Proctor on 2/14/2019. (KAM)
FILED
2019 Feb-14 PM 02:14
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
RODERICK BUFORD,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
}
}
}
}
}
}
}
}
}
Case No.: 5:16-cv-08124-RDP
5:08-cr-00242-RDP-HNJ-7
MEMORANDUM OPINION
This case is before the court on Petitioner’s Motion to Vacate, Set Aside, or Correct
Sentence. (Civil Docket, Doc. # 1).1 The Government responded to Petitioner’s Motion on
October 5, 2016 (Id., Doc. # 10), and Petitioner replied on October 31, 2016. (Id., Doc. # 12).
The Motion to Vacate is now ripe for decision. After careful review, and for the reasons
explained below, the court concludes that Petitioner’s Motion to Vacate is due to be denied as
untimely without an evidentiary hearing.
I. Factual and Procedural Background
In June 2008, Petitioner was charged along with 32 co-defendants in a multi-count
indictment arising from a drug trafficking conspiracy. (Criminal Docket, Doc. # 60). On
September 23, 2008, Petitioner entered into a plea agreement with the Government. (Id., Doc. #
333). He agreed to plead guilty to Conspiracy to Distribute Cocaine, Crack Cocaine, and
Marijuana in violation of 21 U.S.C. §§ 846 and 841(a)(1) (Count Four) and Possession with
1
This memorandum opinion and the accompanying order refer to Case No. 5:16-cv-08124-RDP as the
“Civil Docket” and Case No. 5:08-cr-00242-RDP-HNJ-7 as the “Criminal Docket.”
1
Intent to Distribute Crack Cocaine (County Thirty-One) and Possession with Intent to Distribute
Cocaine (Count Thirty-Two), both in violation of 21 U.S.C. § 841(a)(1). (Id.).
The agreement contained the following relevant factual basis:
Cooperating witnesses have provided information that, following his
release from prison on a drug conviction in 2004, the defendant again became
involved in the drug trade. On April 9, 2008, the defendant was arrested in
Decatur, Alabama and found to be in possession of over 10 ounces of cocaine,
over an ounce of crack cocaine, a quantity of marijuana, and a large amount of
currency. After being advised of and waiving his Miranda rights, the defendant
stated that, following his release from prison, he began obtaining pound quantities
of marijuana and then multiple ounce quantities of cocaine from James Hicks. He
stated that some of the cocaine he obtained from Hicks was in the form of or was
cooked into crack cocaine. At trial, the government would establish that the
defendant, over the course of his dealings with Hicks, obtained multiple
kilograms of cocaine from him. The defendant also stated that he met a Hispanic
male named Ramon and later a Hispanic male known to him as Pedro. The
investigation has revealed that these individuals were Ramon Barajas and Galdino
Zamora, respectively. The defendant obtained multiple kilogram quantities of
cocaine from Zamora on several occasions. The defendant stated that he was told
that Zamora was the source of supply for the cocaine and that it was then sold to
Reco Willingham who was in turn supplying cocaine to Hicks. During his drug
trafficking, the defendant continued to obtain multiple pound quantities of
marijuana for resale from various sources. At trial, the government would produce
testimony which would corroborate statements made by the defendant.
(Id. at 3-4). Petitioner stipulated that these facts were substantially correct and acknowledged
that the purpose of the factual basis was to support his guilty plea. (Id. at 4). He further stipulated
that he was “responsible for distributing, possessing with the intent to distribute, and/or
conspiring to distribute or possess with the intent to distribute a quantity of controlled substance,
cocaine, the weight of which is at least 15 to 50 kilograms, some of which was in the form of
crack cocaine, and marijuana, the weight of which is at least between 100 and 400 kilograms.”
(Id. at 5).
The plea agreement contained a limited appeal waiver and a waiver of the right to seek
post-conviction relief. With certain exceptions, Petitioner waived his right to appeal the
2
conviction, sentence, fines, restitution, and forfeiture imposed by the court, as well as his right to
contest his conviction or sentence in any post-conviction proceeding, including a motion to
vacate under Section 2255. (Id. at 8-9). Petitioner retained the right to challenge a sentence above
the applicable statutory maximum and a sentence above the Sentencing Guidelines range as
determined by the court. (Id.). Finally, Petitioner affirmed that he understood and knowingly
entered into the waiver. (Id.). During Petitioner’s plea hearing, the court ensured that Petitioner
(1) had read each page of the agreement, (2) voluntarily signed the agreement, (3) agreed to its
contents, and (4) understood its operation and effect. (Id., Doc. # 1167 at 20-22).
Petitioner’s sentence was subject to enhancement pursuant to U.S.S.G. § 4B1.1, the
career offender provision, due to two prior controlled substance violations. (Id., Doc. # 606). On
January 26, 2009, the Government filed a motion which requested a downward departure in
Petitioner’s advisory guideline range from life to 262 months. (Id. Doc. # 547 at 5). Accordingly,
Petitioner was sentenced to 262 months in prison on January 27, 2009, and the court entered
Petitioner’s judgment on February 4, 2009. (Id., Doc. # 608).
Six years later on April 13, 2015, Petitioner filed a pro se motion to unseal the record,
judgment, sentencing transcripts, and discovery material from his federal case. (Id., Doc. #
1080). He alleged that he was the victim of a federal offense committed by the former head of
the Decatur Police Department, Sargent Faron White,2 and he needed the records to determine
whether his rights had been violated. (Id. at 2). White was convicted on September 22, 2009 of
Theft from Government Agency Receiving Federal Funds in violation of 18 U.S.C. § 666(a)(1).
See Case No. 5:09-cr-023-CLS. From 2007 to 2008, White embezzled approximately $60,000 of
the Decatur Police Department’s seized funds that were scheduled to be condemned through the
2
Petitioner alleges that White was the investigating officer for his state offenses as well as the subject
federal offenses.
3
court system. (Id., Doc. # 19). He then fled to Las Vegas, where he was eventually apprehended
by the United States Marshal’s Fugitive Task Force on January 5, 2009. (Id.). In light of this
factual basis, the court denied Petitioner’s motion because it found that his conviction was
“based on crimes wholly separate from and unrelated to the Theft from Government Agency for
which Mr. White was convicted.” (Id., Doc. # 1082 at 2).
Petitioner filed the instant Motion to Vacate on June 30, 2016.3 (Civil Docket, Doc. # 1).
In his Motion, he alleges that (1) he received ineffective assistance of counsel because his
attorney failed to investigate prosecutorial misconduct and police corruption (Grounds One and
Two4) and (2) his guilty plea was not knowingly and intelligently entered because the prosecutor
committed a Brady violation by withholding information about Faron White’s criminal activity
between 2007 and 2008 (Ground Three).5 (Id. at 6-7).
3
In conjunction with his Motion to Vacate, Petitioner also filed a pro se Motion to Unseal the Record,
Judgment, Sentencing Transcripts and all Discovery Material. (Criminal Docket, Doc. # 1153). Again, Petitioner
asserts that he is the victim of a federal offense committed by White, and he needs the records from his criminal case
to determine whether his rights have been violated. (Id.). Because the court finds that Petitioner’s Motion to Vacate
(Civil Docket, Doc. # 1; Criminal Docket, Doc. # 1166) is due to be denied, Petitioner’s Motion to Unseal the
Record (Criminal Docket, Doc. # 1153) is also due to be denied.
4
A fair reading of Ground Two shows that it does not present a stand alone claim, but rather expands upon
the claim raised in Ground One.
5
In his Motion to Vacate, Petitioner references a Johnson v. United States claim. (Civil Docket, Doc. # 1 at
5). Although he does not devote a separate Ground to this claim, the court briefly addresses the merits of a Johnson
claim here:
In Johnson v. United States, the Supreme Court held that increasing a sentence under the residual clause of
the Armed Career Criminal Act (ACCA) violates due process protections. 135 S. Ct. at 2551. The ACCA allows an
increased sentence to be imposed where a defendant has three prior convictions for a “violent felony,” which the
residual clause defines as any felony that “involves conduct that presents a serious potential risk of physical injury to
another.” 18 U.S.C. § 924(e)(1), 924(e)(2)(B). The court reasoned that the clause was unconstitutionally vague
because it created “uncertainty about how to estimate the risk posed by a crime” and “about how much risk it takes
for a crime to qualify as a violent felony.” 135 S. Ct. at 2554.
But, In Beckles v. United States, 137 S. Ct. 866 (2017), the Supreme Court clarified that its ruling in
Johnson had no impact on the advisory Sentencing Guidelines. 137 S. Ct. at 892. The plaintiff in Beckles was
sentenced as a “‘career offender’ under United States Sentencing Guideline § 4B1.1(a) because his offense qualified
as a ‘crime of violence’ under § 4B1.2(a)'s residual clause.” Id. at 888. Significantly, Johnson considered a
vagueness challenge to the ACCA’s residual clause, i.e., a “statute fixing permissible sentences.” Id. By contrast, the
advisory Guidelines “merely guide the exercise of a court’s discretion in choosing an appropriate sentence within
4
In support of his Motion, Petitioner alleges that, shortly after his indictment, the U.S.
Attorney questioned him about whether he knew any “corrupt police officers.” (Id., Doc. # 2 at
2). Despite his suspicion of White, Petitioner responded in the negative because White had
threatened him in the past relating to his prior state convictions. (Id.). Petitioner contends that
even though he answered “no,” White had actually attempted to bribe him twice by offering to
make his 1995 state charges “disappear” in exchange for a “substantial amount of money.” (Id. at
3). Petitioner claims that in November 2007, White made a similar offer and told him that if he
(Petitioner) gave White $20,000, White would make the warrant for his drug trafficking offenses
“disappear.” (Id. at 3). The crux of Petitioner’s argument is that his prior state offenses (which
were tainted by White’s criminal behavior) were improperly used to establish Petitioner as a
Career Offender, thus enhancing his federal sentence.6 (Id. at 12-13).
Although Petitioner filed his Motion long after the one-year statute of limitations,
Petitioner asserts that his Motion to Vacate is timely because his claims did not become
discoverable until May 9, 2016, when his girlfriend was finally able to obtain the documents
“establishing that prior police officer Sgt. Faron White…had been arrested for corruption.” (Id.
the statutory range,” and thus were not subject to a due process vagueness challenge. Id. Because Johnson had no
impact on the Sentencing Guidelines, any claim Petitioner intended to raise based on that rationale is due to be
denied.
Moreover, Petitioner’s sentence was not enhanced pursuant to the residual clause defining violent felonies.
Petitioner was characterized as a career offender based on two prior controlled substance violations. Consequently,
Petitioner is not entitled to any relief based on Johnson.
It is unclear from Petitioner’s pleadings whether he intends to attack his prior state convictions that were
used to enhance his federal sentence based on the same grounds—i.e., related to White’s corruption. In an
abundance of caution, the court addresses that argument here and finds that this Section 2255 habeas petition is not
the appropriate vehicle for such a challenge. See Daniels v. United States, 532 U.S. 374 (2001). With the exception
of convictions obtained in violation of a defendant’s right to counsel, a defendant may not collaterally attack prior
state court convictions through a Section 2255 federal habeas petition. Id. at 370-384. The proper method to raise
such a challenge would have been through a direct appeal, a postconviction proceeding under state law, or a Section
2254 habeas petition. Id. at 381. If at the time of sentencing, “a prior conviction has not been set aside on direct or
collateral review, it is presumptively valid and may be used to enhance the federal sentence.” Id. at375 (citing Custis
v. United States, 511 U.S. 485, 496-97 (1994)). Thus, the court only considers the validity of Petitioner’s federal
sentence in its ruling.
6
5
at 12-13; see 28 U.S.C. § 2255(f)(4). In the alternative, Petitioner claims that he is entitled to
equitable tolling both because he is factually innocent of his federal charges and because he
diligently pursued relief as soon as he obtained the information on White’s conviction. (Id. at
28-29).
The Government argues Petitioner’s claim is untimely because Petitioner admits in his
pleadings that he had personal knowledge of White’s corruption as early as 1995 when he was
first indicted on a controlled substance violation. (Id. at 7-8). Furthermore, White’s 2009
conviction was a matter of public record and apparently received a considerable amount of media
coverage. (Id. at 9; see also United States v. White, Case No. 5:09-cr-00023-CLS-HGD). Simply
put, the Government argues that, in any event, Petitioner did not act with due diligence because
he did nothing to pursue his claims “from February 14, 2009, the day on which his conviction
became final, and April 5, 2015, the day on which he claims to have learned that White had been
caught—a period of more than six years.” (Id. at 11). Lastly, the Government contends that
Petitioner is not entitled to equitable tolling because he has only alleged legal insufficiency of his
conviction as opposed to factual innocence. (Id. at 12-13).
II. Analysis
A federal prisoner may file a Motion to Vacate his or her sentence “upon the ground 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).
It is well settled that “to obtain collateral relief[,] a prisoner must clear a significantly higher
hurdle than would exist on direct appeal.” United States v. Frady, 456 U.S. 152, 166 (1982).
6
After careful review, and for the reasons explained below, the court finds that Petitioner’s claims
are due to be denied as untimely without an evidentiary hearing.
A. Petitioner’s Motion to Vacate is Due to be Denied as Untimely
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") imposes a one
year statute of limitations for filing a § 2255 motion. 28 U.S.C. § 2255(f). The one year
limitations period runs from the latest of: “(1) the date on which the judgment of conviction
becomes final; (2) the date on which the impediment to making a motion created by
governmental action in violation of the Constitution or laws of the United States is removed, if
the movant was prevented from making a motion by such governmental action; (3) the date on
which the right asserted was initially recognized by the Supreme Court, if that right has been
newly recognized by the Supreme Court and made retroactively applicable to cases on collateral
review; or (4) the date on which facts supporting the claim or claims presented could have been
discovered through the exercise of due diligence.” 28 U.S.C. §§ 2255(f)(1)-(4).
i. Petitioner’s Motion is Untimely Under Section 2255(f)(1)
As to the first event triggering the statute of limitations, Petitioner’s Motion to Vacate is
late. Petitioner pleaded guilty to the offense on September 23, 2008 and was sentenced on
January 27, 2009. (Criminal Docket, Docs. # 333, 608). Judgment was entered February 4,
2009. (Id., Doc. # 608). Because Petitioner did not pursue a direct appeal, his conviction became
final ten days after the entry of judgment when the time for filing a notice of appeal expired.
Federal Rule of Appellate Procedure 4(b)(1)(A)(i).7 Thus, Petitioner’s conviction was final on
February 14, 2009. Under Section 2255(f)(1), Petitioner had until February 14, 2010 to file a
Motion to Vacate. He did not do so until June 23, 2016—more than six years after the deadline.
See Federal Rules of Appellate Procedure 4 Advisory Committee’s note to 2009 amendment (changing
deadline from 10 to 14 days, effective December 1, 2009).
7
7
But, this threshold finding does not end the court’s inquiry. The court must still assess if any of
the other subsections of Section 2255(f) permit the otherwise belated filing of this action.
ii. Petitioner is Not Entitled to an Extended Statute of Limitations Under
Section 2255(f)(4)
In light of his failure to file his petition within one year of his conviction becoming final,
Petitioner attempts to rely on Section 2255(f)(4) to justify the timing of his filing. Section
2255(f)(4) grants a petitioner a filing deadline of one year from “the date on which the claim or
claims presented could have been discovered through the exercise of due diligence.” A petitioner
is not required to use the “maximum feasible diligence,” but is required to exercise “due, or
reasonable, diligence.” Aron v. United States, 291 F.3d 708, 712 (11th Cir. 2002) (internal
quotations omitted). The limitations period begins to run when facts supporting a petitioner’s
claim “could have been discovered through the exercise of due diligence, not when they were
actually discovered.” Id. at 711. Furthermore, the running of the limitations period does not
depend on a petitioner’s understanding of the “legal theories available to him” or the “legal
significance of the facts that he discovers.” Calhoun v. United States, 2017 WL 2881123, at *2 n.
2 (S.D. Ala. June 8, 2017) (quoting Perez v. United States, 2014 WL 31326, at *11 n. 10 (S.D.
Fla. January 2, 2014)). The court’s timeliness analysis under Section 2255(f)(4) begins by
determining whether the petitioner exercised due diligence. Aron, 291 F.3d at 711. If Petitioner
did exercise due diligence, “the limitation period would not begin to run before the date on
which he actually discovered the facts supporting the claim.” Id.
Here, Petitioner alleges that he heard of White’s arrest around April 5, 2015, but that the
facts supporting his petition did not become discoverable (for the purposes of the running of the
statute of limitations) until May 9, 2016, when his girlfriend obtained the records confirming the
arrest. (Civil Docket, Doc. # 2 at 4, 12-13). He argues that this documentation was necessary to
8
prove that White’s corruption between 2007 and 2008 “rendered his ‘State’ and ‘Inadvert[ently]’
his ‘Federal’ Conviction unconstitutionally invalid.” (Id. at 4). According to Petitioner, his
claims -- (1) that his counsel was ineffective in failing to investigate police and prosecutorial
misconduct and (2) that his guilty plea was not knowingly and intelligently entered -- were not
discoverable absent his possession of the records from White’s criminal case. (Id.). For the
reasons explained below, the court finds that Petitioner did not act promptly or with due
diligence in pursuing his claims.
First, Petitioner’s own pleadings demonstrate that he knew of facts giving rise to his
claims during his criminal proceedings, but did nothing to pursue those claims until April 2015.
Indeed, Petitioner has alleged that in 1995 White attempted to bribe Petitioner twice by offering
to make his state charges “disappear” in exchange for a “substantial amount of money.” (Id. at
3). White allegedly made a similar offer to Petitioner in November 2007, just months before
Petitioner was federally indicted. (Id.). Yet, despite this direct personal knowledge, Petitioner
declined to share his concerns with the prosecutor when asked if he knew anything about corrupt
police officers. (Id. at 2). Thus, Petitioner’s own assertions make clear that he had direct personal
knowledge of White’s corruption years before he contacted the court on April 10, 2015 or chose
to file this petition on June 23, 2016.
Petitioner’s claim that his counsel was ineffective in failing to investigate White’s
corruption is untimely because a reasonable petitioner in his position would have known at the
time that his attorney was not advancing any argument related to White. Indeed, the record
shows that Petitioner failed to inform his attorney of the pertinent information that could have
affected the outcome of his proceedings. The record is also devoid of any evidence indicating
that Petitioner ever informed his counsel of his past history with White. So, despite being on
9
notice in 2008 of his claims regarding White, Petitioner failed to advance any claim about White
until years later and failed to provide his counsel with that information. Now, seven years later,
Petitioner claims that his attorney should have initiated an investigation based on information
that only he possessed—information that he withheld for his own purposes and to his own
detriment. Petitioner cannot claim the shelter of Section 2255(f)(4) simply because he declined to
act in his own best interests despite being equipped with the knowledge he claims he did not
discover until May 9, 2016.
Similarly, Petitioner’s personal knowledge of White’s corruption renders Ground Three
of his Motion untimely. In Ground Three, Petitioner claims that his plea was not knowingly and
intelligently entered because the prosecutor withheld favorable information relating to White’s
corruption. (Doc. # 2 at 18-27). But, as previously stated, Petitioner had firsthand knowledge of
White’s corruption when he pleaded guilty on September 23, 2008. He also admits that he kept
this knowledge to himself when the prosecutor asked him if he knew of any corrupt police
officers following his 2008 arrest. (Id. at 2). In fact, he sat through a plea colloquy and entered a
guilty plea without sharing his concerns with his attorney, the prosecutor, or the court. Because
his petition reveals that he possessed personal knowledge of White’s corruption during his own
criminal proceedings, Petitioner’s claim, which seeks to fault the Government for allowing him
to plead guilty without providing him with all relevant information, is untimely because he
himself possessed the information.
Even without his personal knowledge, Petitioner could have discovered, through the
exercise of due diligence, facts relating to White’s corruption long before May 9, 2016. White’s
indictment and plea agreement -- filed on January 28, 2009 and March 2, 2009, respectively -were both matters of public record. (United States v. White, 5:09-00023-CLS-HGD, Docs. # 7,
10
19). According to the Government, White’s case also generated extensive media coverage. (Civil
Docket, Doc. # 10 at 9). Given these avenues of publicly available information, Petitioner could
have discovered information about White’s criminal proceedings prior to May 9, 2016 had he
exercised due diligence.
In an effort to establish due diligence, Petitioner alleges that after he learned of White’s
arrest on April 5, 2015, he attempted to contact the state and federal courts several times to
retrieve the information he needed to challenge his convictions. (Civil Docket, Doc. # 2 at 4).
Specifically, on April 13, 2015, Petitioner filed a pro se motion to unseal the record, judgment,
sentencing transcripts, and discovery material from his federal case. (Criminal Docket, Doc. #
1080). The court denied his motion on April 15, 2015. (Id., Doc. # 1082). He remained silent for
another year until May 9, 2016, when he alleges his girlfriend obtained the documents from
White’s criminal case. (Id.). Even accepting these allegations as true, the fact remains that
Petitioner did nothing to pursue his claims from February 14, 2009 (the date his conviction
became final) and April 5, 2015 (the date on which he claims he learned of White’s arrest)—a
period of over six years. Given his claimed personal knowledge of White’s corruption and the
publicly available information on White’s arrest, Petitioner did not act promptly or with due
diligence in pursuing his claims. In other words, the facts supporting his claims could have been
discovered (and likely were discovered) more than a year prior to June 23, 2016, thus rendering
Petitioner’s Motion untimely.
With the foregoing in mind, the court cannot perceive any justification for why Petitioner
waited until June 23, 2016 to file his Motion to Vacate. Accordingly, Petitioner is not entitled to
an extended statute of limitations under Section 2255(f)(4), and his Motion is due to be denied as
untimely.
11
iii. Petitioner is Not Entitled to the Benefit of the Equitable Tolling
Doctrine
Petitioner’s arguments for equitable tolling are also without merit. The court recognizes
that “in the proper case § 2255's period of limitations may be equitably tolled.” Sandvik v. United
States, 177 F.3d 1269, 1271 (11th Cir. 1999). However, equitable tolling is appropriate only
“when a movant untimely files because of extraordinary circumstances that are both beyond his
control and unavoidable even with diligence.” Id. (citations omitted) (emphasis added).
Additionally, the court is mindful that equitable tolling is an “extraordinary remedy which is
sparingly applied.” Williams v. United States, 491 F.3d 1282, 1284-85 (11th Cir. 2007).
Petitioner claims that the equitable tolling doctrine saves his claims because he is “factually”
innocent of his federal conviction and his prior state convictions. (Civil Docket, Doc. # 2 at 2830). The court disagrees.
First, Petitioner’s “failure to demonstrate the due diligence required by § 2255(f)(4)
prevents [him] from availing himself of the benefits of equitable tolling.” Badillo v. United
States, 2013 WL 2297172, at *4 (M.D. Ala. May 24, 2013) (noting that a petitioner must show
extraordinary circumstances and due diligence to receive the benefit of equitable tolling).
Second, Petitioner has failed to demonstrate actual innocence. If established, actual
innocence functions as a “gateway” overcoming the expiration of the limitations period.
McQuiggin v. Perkins, 569 U.S. 383, 386 (2013). To establish actual innocence, a petitioner
must “support his allegations of constitutional error with new reliable evidence -- whether it be
exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence -that was not presented at trial.” Schlup v. Delo, 513 U.S. 298, 324 (1995). A petitioner must
show that “it is more likely than not that no reasonable juror would have convicted him.”
Bousley v. United States, 523 U.S. 614, 623 (1998). Furthermore, actual innocence means
12
“factual innocence, not legal insufficiency.” Id.; see e.g., Woulard v. Sec'y, Dep't of Corr., 707
Fed.App'x 631, 635 (11th Cir. 2017) (finding legal innocence as opposed to factual innocence
where petitioner asserted that if his attorney had filed a motion to suppress, the Government
would not have been able to prove he committed the crime and therefore he would not have pled
guilty).
Here, Petitioner has failed to produce any new evidence showing he is factually innocent
of his federal drug convictions. See Schlup, 513 U.S. at 324. Indeed, Petitioner never argues that
he did not commit the crimes he was charged with. Instead, he relies on the same allegations that
White’s corruption invalidated his state offenses, and by extension, his federal sentence as a
career offender. (Civil Docket, Doc. # 2 at 12-13). This argument suggests only legal
insufficiency, as opposed to factual innocence. As such, Petitioner has failed to plead
extraordinary circumstances warranting application of the equitable tolling doctrine, and his
petition must be dismissed as untimely.
B. Petitioner’s Motion to Vacate Also Fails on the Merits
Even if his Motion were timely (and, to be clear, it is not), Petitioner has not
demonstrated that his counsel was ineffective or that his guilty plea was made unknowingly and
unintelligently. To reiterate, Petitioner has alleged that (1) he received ineffective assistance of
counsel because his attorney failed to investigate prosecutorial misconduct and police corruption
(Grounds One and Two) and (2) his guilty plea was not knowingly and intelligently entered
because the prosecutor committed a Brady violation by withholding information about White’s
criminal activity between 2007 and 2008 (Ground Three). (Id. at 6-7). The court reviews the
merits of each claim and finds that Petitioner’s Motion is due to be denied.
13
i.
Petitioner’s Ineffective Assistance of Counsel Claim is Due to be
Denied
The governing standard for ineffective assistance of counsel claims derives from
Strickland v. Washington, 466 U.S. 668 (1984). In Strickland, the Supreme Court established a
two-prong test for adjudicating ineffective assistance of counsel claims; both prongs of the test
must be met for a petitioner to succeed. Id. at 687. First, a petitioner must show that counsel’s
performance was deficient, i.e., the performance was outside the range of professionally
competent assistance. Id. The proper measure of an attorney’s performance is “reasonableness
under prevailing professional norms.” Id. at 688. Unless a petitioner can rebut the “strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance,” he or she cannot show that counsel’s performance was constitutionally deficient. Id.
at 689. “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. [The court asks] only whether some reasonable
lawyer . . . could have acted, in the circumstances, as defense counsel acted . . . .” White v.
Singletary, 972 F.2d 1218, 1220 (11th Cir. 1992); see also Waters v. Thomas, 46 F.3d 1506,
1514 (11th Cir. 1995) (en banc) (stating that “perfection is not the standard of effective
assistance”).
Second, a petitioner must also establish prejudice. That is, he must show there is a
reasonable probability that, absent counsel’s errors, the outcome of the proceeding would have
been different. Strickland, 466 U.S. at 687; Chandler v. United States, 218 F.3d 1305, 1312-13
(11th Cir. 2000) (en banc). “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Strickland, 466 U.S. at 694. Because Petitioner must meet both parts
of the Strickland test, the court need not address the performance prong if he cannot meet the
prejudice prong, and vice versa. Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000).
14
Petitioner argues that his counsel was ineffective due to a failure to (1) initiate an
investigation into White’s corruption (as he was the investigating officer on Petitioner’s federal
case); (2) raise the argument of prosecutorial misconduct (because of the prosecutor’s failure to
disclose information relating to White’s criminal investigation); and (3) initiate an investigation
into possible mitigating evidence concerning Petitioner’s state convictions (which he asserts
were based on White’s corruption as the investigating officer and ultimately used to enhance his
federal conviction). (Civil Docket, Doc. # 2 at 15).
The common thread underlying each of these allegations is Petitioner’s claimed personal
knowledge of White’s corruption. However, as previously discussed, the record indicates that
Petitioner did not share this personal knowledge with his attorney, the prosecutor, or the court.
Nevertheless, Petitioner unreasonably claims that counsel should have initiated an investigation
based on information that only he (the Petitioner) possessed. The test announced in Strickland
does not include clairvoyance in the range of prevailing professional norms. Counsel did not act
unreasonably in failing to independently investigate White’s corruption because Petitioner failed
to inform counsel of White’s two prior attempts to bribe him. Strickland, 466 U.S. at 691
(“[W]hat investigation decisions are reasonable depends critically on [information supplied by
the defendant].”). Petitioner cannot show that his trial counsel was deficient on these grounds.
Thus, the court need not reach the question of prejudice, since the performance prong is not met.
ii.
Petitioner’s Guilty Plea Was Valid
In Ground Three, Petitioner alleges that his guilty plea was not knowingly and
intelligently entered because the prosecutor committed a Brady violation by withholding
information about White’s criminal activity. (Id. at 18-27). Petitioner essentially argues that he
would not have pled guilty had he known that the investigating officer on his state and federal
15
offenses had stolen money from the Decatur Police Department. Petitioner’s claim is due to be
dismissed for two reasons. First, the record demonstrates that Petitioner’s guilty plea was entered
knowingly and voluntarily after a thorough plea colloquy. Second, Petitioner has failed to show
that the prosecutor withheld favorable information constituting a Brady violation.
It is well settled that a guilty plea must be a voluntary, knowing, and intelligent act “done
with sufficient awareness of the relevant circumstances and likely consequences.” Brady v.
United States, 397 U.S. 742, 748 (1970); see also United States v. Ruiz, 536 U.S. 622, 629
(2002); Hill v. Lockhart, 474 U.S. 52, 56 (1985). A guilty plea is knowing and voluntary if (1)
the plea is free from coercion; (2) the defendant understands the nature of the charges; and (3)
the defendant knows and understands the consequences of his guilty plea. United States v.
Darville, 423 F. App'x 939, 941 (11th Cir. 2011).
The record reveals that the court ensured Petitioner understood that he was stipulating to
the correctness of the factual basis in the plea agreement, including the amount of drugs that was
determined to be in his possession. (Criminal Docket, Doc. # 1167 at 16). Petitioner certified that
he had discussed the plea agreement with his counsel, understood its operation and effect, and
signed the agreement voluntarily because he was guilty. (Id. at 22). The court also explained the
elements and maximum penalties associated with each charge as well as the consequences of
waiving certain rights to trial and to appeal. (Id. at 16-21). Under these circumstances, the record
demonstrates that Petitioner’s plea was, in fact, knowing and voluntary.
As to whether Petitioner’s plea was rendered unknowing and unintelligent due to the
prosecutor’s alleged Brady violation, it should be noted that the Eleventh Circuit has not
addressed whether a guilty plea waives a Brady claim. United States v. McCoy, 636 F. App'x
996, 998 (11th Cir. 2016) (declining to decide the issue because the defendant did not raise a
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viable Brady claim); United States v. Matthews, 168 F.3d 1234, 1242 (11th Cir. 1999) (same).
However, the court need not address the issue here because Petitioner has failed to establish that
the information relating to White’s criminal activity would have created the foundation for a
Brady violation. In asserting a Brady violation, a petitioner must show “(1) that the Government
possessed evidence favorable to the defendant (including impeachment evidence); (2) that the
defendant did not possess the evidence nor could he have obtained it himself with any reasonable
diligence; (3) that the prosecution suppressed the favorable evidence; and (4) that had the
evidence been revealed to the defense, there is a reasonable probability that the outcome of the
proceedings would have been different.” U.S. v. Perez, 473 F.3d 1147, 1150 (11th Cir. 2006).
Petitioner has not raised a viable Brady claim because there is no reasonable probability
that evidence relating to White’s indictment for Theft from a Government Agency Receiving
Federal Funds would have affected the outcome of his proceedings. Any information the
prosecutor might have possessed on White’s criminal activities involved his theft of seized funds
from the Decatur Police Department. (Case No. 5:09-cr-023-CLS, Doc. # 19). The factual basis
of that crime has no bearing on Petitioner’s involvement in a drug trafficking conspiracy. Also,
as discussed above, Petitioner stipulated in his plea agreement and confirmed in his plea
colloquy that he was “responsible for distributing, possessing with the intent to distribute, and/or
conspiring to distribute or possess with the intent to distribute a quantity of controlled substance,
cocaine, the weight of which is at least 15 to 50 kilograms, some of which was in the form of
crack cocaine, and marijuana, the weight of which is at least between 100 and 400 kilograms.”
(Criminal Docket, Doc. # 333). Petitioner cannot establish that the prosecutor committed a Brady
violation by withholding information completely unrelated to his own criminal proceedings.
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Consequently, Petitioner’s claim that his guilty plea was not knowingly and intelligently entered
because of the prosecutor’s supposed Brady violation is due to be dismissed.
C. Petitioner’s Request for an Evidentiary Hearing is Due to be Denied
A petitioner under Section 2255 is entitled to an evidentiary hearing if he alleges
“reasonably specific, non-conclusory facts that, if true, would entitle him to relief.” Aron v.
United States, 291 F.3d 708, 715 n. 6 (11th Cir. 2002). The court need not hold an evidentiary
hearing if a petitioner’s claims are “affirmatively contradicted by the record” or “patently
frivolous.” Id. Here, an evidentiary hearing is not required to resolve Petitioner’s claims because
the record demonstrates that they are both untimely and without merit.
III. Conclusion
After careful consideration, and for the reasons explained above, Petitioner’s Motion to
Vacate (Id., Doc. # 1) is due to be denied as untimely without an evidentiary hearing. A separate
Order consistent with this Memorandum Opinion will be entered.
DONE and ORDERED this February 14, 2019.
_________________________________
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE
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