Antone-Herron v. United States of America

Filing 7

MEMORANDUM OF OPINION. Signed by Judge L Scott Coogler on 7/1/2015. (PSM)

FILED
2015 Jul-01 PM 03:21
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
TEREK ANTONE-HERRON,
Petitioner,
vs.
UNITED STATES OF AMERICA
Respondent.

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7:15-cv-08007-LSC
(7:13-cr-00202-LSC-HGD-1)

MEMORANDUM OF OPINION
I.

INTRODUCTION
This is a motion to vacate, set aside, or correct a sentence pursuant to

28 U.S.C. § 2255, filed by petitioner Terek Antone-Herron (“AntoneHerron”) on February 6, 2015. (Doc. 1.) The Petitioner contemporaneously
filed a brief in support of said motion. (Doc. 2.) Antone-Herron pled guilty in
this Court to possession of a firearm as a convicted felon in violation of 18
U.S.C. § 922(g)(1). He was sentenced to a term of imprisonment for 71
months and now challenges his sentence. For the reasons set forth below,
this motion is due to be denied.
II.

BACKGROUND
Page 1

In the early hours of December 15, 2012, a shooting took place in the
parking lot of a Mapco service station in Tuscaloosa, Alabama. Shortly
thereafter, officers from the Tuscaloosa Sherriff’s Office arrived at the
scene. With the help of witnesses and video surveillance, the officers were
able to identify Antone-Herron as a person of interest. It was believed that he
had been driving the vehicle involved in the shooting and had given a gun to
one of the shooters.
Using police records, the officers located the last known address used
by Antone-Herron. Later that same morning, Sergeant Dale Phillips,
Investigator Timothy Elmore, and another deputy arrived at a mobile home
where Antone-Herron was believed to reside. Parked in front of the home
was a Dodge Charger which appeared to match the one captured by the
surveillance video. The car was riddled with bullet holes, presumably from
the morning’s earlier escapades.
The officers approached the home and knocked on the door.
Lakendrix May, a friend of Antone-Herron, answered. May explained that he
had been asleep in a back room where he stayed and did not know if AntoneHerron was home. When asked by the officers if they could take a look

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around and see if Antone-Herron was present, May responded that they
could do what they had to do.
Upon entering the trailer, the officers discovered Antone-Herron
asleep on the couch. They woke him, noticed a TAC revolver on the couch
where he slept, and placed him under arrest. Following the arrest, AntoneHerron was interviewed by the officers. He directed them to the location of
the Glock .45-caliber pistol used in the shooting which was hidden in the
home beneath a freezer.
On May 30, 2013, a federal grand jury indicted Antone-Herron on two
counts of possession of a firearm by a convicted felon—Count I for
possessing the Glock pistol and Count II for possessing the TAC revolver.
On August 30, Antone-Herron’s appointed attorney, Assistant Federal
Defender Rick Burgess, filed a motion to suppress the guns and post-arrest
statements, arguing that the search was unlawful because the officers had
neither a warrant nor proper consent to enter the home. On September 18, a
suppression hearing was held before the Honorable Harwell G. Davis,
United States Magistrate Judge, who recommended the motion be granted in
part and denied in part. The Glock pistol was suppressed because the
officers’ search underneath the freezer exceeded the scope of May’s

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consent, which was limited to searching the home for Antone-Herron. This
Court accepted the Report and Recommendation of the magistrate judge
over the objections of the Defendant. On October 2, 2013, Antone-Herron
pled guilty to just Count II of the indictment—possession of the TAC
revolver. However, in the plea agreement, Antone-Herron reserved the right
to appeal the partial denial of his motion to suppress. On February 19, 2014,
Antone-Herron was sentenced by this Court to 71 months in prison on
Count II, and Count I was dismissed due to the Court’s acceptance of the
magistrate judge’s report and recommendation. Judgment was entered the
same day.
Following sentencing and judgment, Antone-Herron exercised his
reserved right to appeal and asked the Eleventh Circuit to reverse the partial
denial of the motion to suppress. Specifically, his counsel argued: (1) that
May did not give voluntary consent and instead merely acquiesced to a show
of official authority; and (2) that May lacked the authority to consent, and
the officers could not have reasonably believed otherwise. The Eleventh
Circuit rejected these arguments and affirmed the conviction on January 8,
2015.

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On February 6, 2015, Antone-Herron delivered to prison officials for
mailing the instant pro se § 2255 motion in this Court, asserting two grounds
in support of relief:
1. Ineffective assistance of counsel which caused his “guilty plea to be
unknowing and involuntarily given [because] counsel failed to
reasonably and adequately familiarize himself with the law and
facts of the prosecution’s case”; and
2. Ineffective assistance of counsel “due to counsel’s failure to
reasonably and timely note, object and raise his client’s claim that
law enforcement[‘s] initial conduct and actions were illegal at its
inception and made the alleged consent, search, and seizure(s) and
arrest the tainted fruit of the po[i]sonous tree doctrine.”
(Doc. 2 at 1-3.)
III.

DISCUSSION
A. Timeliness and Non-Successive Nature of Antone-Herron’s §
2255 Motion
Because Antone-Herron filed his § 2255 motion within one year of the

date that the judgment of his conviction became final, his motion is timely.
See 28 U.S.C. § 2255(f)(1). Furthermore, nothing in the record indicates that
the Petitioner has previously filed a § 2255 motion. Thus, the current motion
is not “successive” within the meaning of § 2255(h).
B. Effect of Antone-Herron’s Plea Agreement

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Antone-Herron waived certain rights when he entered into his guily
pleas, but he did not waive the right to raise a claim of ineffective assistance
of counsel. (Cr. Doc. 25 at 6.) 1 Both grounds for relief asserted in the § 2255
motion are ineffective assistance of counsel claims which are not barred by
the plea agreement.
C. Antone-Herron’s Claim of Ineffective Assistance of Counsel as
Related to His Decision to Plead Guilty
Claims of ineffective assistance of counsel may be raised for the first
time in a § 2255 motion and are therefore not subject to a procedural bar if
the petitioner did not raise the issue on direct appeal. Massaro v. United
States, 538 U.S. 500, 504 (2003). In order for a convicted defendant’s claim
of ineffective assistance of counsel to warrant post-conviction relief, two
components must be present—deficient performance and prejudice.
Strickland v. Washington, 466 U.S. 668, 687 (1984). To demonstrate deficient
performance, the defendant must show that counsel’s representation fell
below an objective standard of reasonableness. Id. at 688. To demonstrate
prejudice, the defendant must show that there is a reasonable probability
that, but for counsel’s deficient performance, the result of the proceeding
would have been different. Id. at 694. The court need not “address both
1

“Cr. Doc.” Refers to an entry on the docket sheet in the underlying criminal case, No.
7:13-cr-202-LSC-HGD-1.
Page 6

components of the inquiry if the defendant makes an insufficient showing on
one.” Id. at 697. This two-part test is equally applicable to ineffective
assistance claims arising out of the plea process. Hill v. Lockhart, 474 U.S.
52, 57 (1985). In regard to guilty pleas, the prejudice element is satisfied
when the defendant shows “that there is a reasonable probability that, but
for counsel’s errors, he would not have pleaded guilty and would have
insisted on going to trial.” Id. at 59.
Turning to the instant motion, Antone-Herron argues that his
attorney’s ineffective assistance “caused him . . . to enter a guilty plea that
was both involuntarily and unknowingly made.” He provides a three-step
argument for why this is the case: his attorney failed to challenge the
officers’ search as unconstitutional; this failure is evidence that his attorney
was so unfamiliar with the facts of the case that any advice he provided to
Antone-Herron regarding the guilty plea was necessarily inadequate; and it
was because of this inadequate advice that Antone-Herron pleaded guilty.
As an initial matter, the majority of Antone-Herron’s argument in
support of his motion is contained in an addendum to his brief styled
“Defendant’s Pro Se Motion to Withdraw Guilty Plea.” (Doc. 2 at 5-17). It
appears from the face of this motion that he sent this motion to his counsel

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on January 30, 2014. It also appears that, based on statements Anton-Herron
makes in his current motion, Antone-Herron believes the motion to
withdraw the guilty pleas is before the Court, and has been since January 30,
2014. (See Doc. 1 at 2.) This is incorrect: Antone-Herron’s motion to
withdraw his guilty plea was never filed with this Court. The relevant
timeline is this: on October 2, 2013, Antone-Herron entered his plea of guilty
before this Court; on January 30, 2014, he purportedly sent his motion to
withdraw his guilty plea to his counsel; and on February 19, 2014, this Court
held a sentencing hearing and then entered judgment. At the sentencing
hearing, Antone-Herron never made mention of any motion (or any intent)
to withdraw his guilty plea. Instead, he chose to acknowledge his mistakes
(“I would just like to say I know I made mistakes”) and ask for leniency (I
am “hoping that I get another chance just to prove myself to my family”).
(Doc. 40 at 4–5.) Nor did he make any mention of any intent to proceed pro
se. (Id.) Indeed, on March 4, 2014, when he filed his notice of appeal, he was
still represented by counsel, and that representation continued throughout
the appeals process before the Eleventh Circuit. (Doc. 34.)
Pursuant to Federal Rule of Criminal Procedure 11(e), a defendant
may not withdraw a guilty plea after the court imposes sentence. Thus,

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because Antone-Herron’s pro se motion to withdraw his guilty plea was never
filed with this Court prior to his sentencing, it cannot be considered now.
However, a guilty plea may still be set aside on direct appeal or collateral
attack. See Fed. R. Crim. P. 11(e). As such, insofar as Antone-Herron seeks
to set aside his guilty plea through the constitutional claims he presents in
the instant § 2255 proceeding, that request is considered here.
1. Antone-Herron failed to show deficient performance by his
counsel.
In determining whether an attorney’s performance fell below the
objective standard of reasonableness, the court is highly deferential to
counsel’s decisions and must keep in mind that “a fair assessment of
attorney performance requires that every effort be made to eliminate the
distorting effects of hindsight, to reconstruct the circumstances of counsel’s
challenged performance, and to evaluate the conduct from counsel’s
perspective at the time.” Strickland, 466 U.S. at 689. The court must also
indulge a strong presumption that counsel’s performance falls within the
“wide range of reasonable professional assistance.” Id. When seeking to
overcome this presumption, a movant cannot rely on bare accusations and
complaints but instead “must identify the acts or omissions of counsel that

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are alleged not to have been the result of reasonable professional judgment.”
Id. at 690.
Here, Antone-Herron alleges in his brief that Attorney Rick Burgess
did not live up to his professional responsibilities because he neglected to
familiarize himself with the facts of the case and the applicable law. As
evidence of this unfamiliarity, Antone-Herron makes three principal
allegations. First, he describes his attorney’s “complete failure” to challenge
the constitutionality of the officers’ initial search and to reasonably pursue
this line of defense. (Doc. 2 at 2.) Second, he alleges that his attorney failed
to utilize the testimony of Lakendrix May to refute that the officers received
legally sufficient consent to enter the home. (Id. at 8-9.) Finally, AntoneHerron states that his counsel failed to discover important case precedent
that would have favorably affected the outcome of his case. However, all of
these assertions are refuted by the record.
Antone-Herron’s attorney did in fact investigate and raise these
particular constitutional defenses on more than one occasion. First, Attorney
Burgess filed a motion to suppress the evidence and post-arrest statements,
contending that law enforcement violated his client’s Fourth and Fifth
Amendment protections by conducting an unlawful search and seizure. (Cr.

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Doc. 12.) He specifically argued that officers were not permitted to enter the
residence without a warrant or his client’s consent and that the exclusionary
rule should apply to any evidence obtained as a result of the unlawful entry.
(Id. at 3.) At the motion hearing, Attorney Burgess made use of this defense
to successfully advocate for exclusion of the Glock pistol, leading to Count I
of the indictment being dismissed.
Following the suppression hearing, Attorney Burgess raised the issue
of illegal entry and consent a second time in a motion titled “Objections to
Magistrate’s Report and Recommendation.” (Cr. Doc. 21.) The motion
argued that law enforcement lacked legally sufficient consent to enter the
home because May had simply yielded to a show of official authority, and the
State had failed to carry its burden of proving that consent was freely and
voluntarily given. (Id. at 2.)
Finally, to ensure that these matters could be considered once again,
the plea agreement that Antone-Herron negotiated while represented by
Attorney Burgess expressly reserved the right to appeal the suppression
issue. (Cr. Doc. 6-3 at 17.) A timely notice of appeal was filed to challenge
the issues of entry and consent while Antone-Herron was still represented by
his attorney. (Cr. Doc. 34.)

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As further evidence of his counsel’s alleged deficient performance,
Antone-Herron argues that Attorney Burgess failed to make use of crucial
testimony by neglecting “to fully investigate Mr. Lakendrix May’s unrefuted
statement that he actually did not provide consent to enter.” (Doc. 2 at 8-9.)
This testimony, which serves as the principal basis for much of the present
motion, is contained in Lakendrix May’s affidavit, which was signed by May
on December 13, 2014, and was submitted by Antone-Herron along with his
brief. (Doc. 2 at 19-20.) However, the allegation that Attorney Burgess
ignored this testimony once again conflicts with the record.
To begin with, Attorney Burgess did in fact call May as a witness at
the suppression hearing where the magistrate judge heard his testimony
regarding the events leading to Antone-Herron’s arrest. Additionally,
contrary to the claim in the Petitioner’s brief, May’s testimony was not
“unrefuted.” The key factual assertions made by May in the new affidavit
were directly contradicted by the testimony of the two officers who appeared
before the magistrate judge and by May’s own testimony at that hearing. In
the affidavit, May states that the officers threatened him with arrest if he did
not allow them entry. (Doc. 2 at 19.) However, at the suppression hearing,
May was asked more than once during direct and cross examination whether

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the officers said or did anything threatening or intimidating toward him, to
which he answered no. (Doc. 6-2 at 46; 50.) Additionally, May’s affidavit
states that he unequivocally told officers that he did not live at the residence
and could not authorize entry. (Doc. 2 at 19.) Yet at the hearing, the officers
testified that May had held himself out to be a resident, saying that he stayed
at the home and had a room in the back. (Doc. 6-2 at 9-10; 31.) May himself
testified that when asked by the officer whether he stayed at the home, he
answered, “I told him, yes, sir, I do stay there.” (Id. at 45.) Lastly, May’s
affidavit states that he never gave law enforcement officials consent to enter
the home. (Doc. 2 at 20.) But this claim was also contradicted at the hearing,
as both officers testified that May granted them entry into the residence.
(Doc. 6-2 at 10; 30.) Furthermore, May also testified that when officers
asked for his consent to enter the house, he did not deny them entry. Instead,
he responded, “I stay here, I am not the owner of the house . . . do what y’all
have to do.” (Id. at 47.) All of this testimony was given before the magistrate
judge who evaluated it in light of any conflicting evidence and reached the
conclusion that May had given the officers consent to enter the home. (Cr.
Doc. 17 at 7). This finding was affirmed by the Eleventh Circuit on appeal.

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Finally, Antone-Herron argues that his counsel overlooked key legal
authority that would have benefitted his case. (Doc. 2 at 13.) In particular, he
states in his brief that “Attorney Burgess incompetently failed to discover
Nap[u]e v. Illinois, 360 U.S. 264 (1959) and the favorable impact that such
authority would have on the case of the prosecution.” (Id.) According to the
Antone-Herron, Napue mandates the exclusion of all law enforcement
officials’ testimony from the prosecution’s case-in-chief. (Id. at 14.) Had
Attorney Burgess discovered and raised this argument, Anton-Herron
asserts that it would have resulted in the indictment being dismissed. (Id.)
In Napue, the Petitioner was convicted of murder following a botched
robbery. The principal witness for the prosecution was one of the
Petitioner’s co-conspirators in the robbery. When asked at trial whether he
had received any consideration in return for his cooperation, the witness
testified that he had not. The prosecuting attorney, despite knowing that he
had promised the witness a reduction in his sentence if he testified, failed to
correct the witness’s false statement. The question the Supreme Court was
asked to address was whether “the failure of the prosecutor to correct the
testimony of the witness which he knew to be false denied petitioner due
process of law in violation of the Fourteenth Amendment to the Constitution

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of the United States.” Napue, 360 U.S. at 265 (emphasis added). The Court
held that false testimony could not be used to secure a conviction at trial. Id.
at 272.
Antone-Herron’s reliance on this decision is misplaced. In Napue, the
record established that the prosecuting attorney had promised the witness
consideration for his testimony, a finding that the State did not contest. In
fact, the state’s attorney testified himself that he had offered to help the
witness if he cooperated. Thus, the testimony used to achieve the conviction
was without a doubt false, and the prosecutor had actual knowledge of this
fact. In the present case, Napue would be relevant only if the testimony
offered by the State’s witnesses was in fact fabricated. However, the sole
support for this proposition is the unconvincing affidavit of Lakendrix May.
For the reasons already discussed, this evidence does not persuade the Court
that there is cause to call into question the veracity of the officers’ testimony
or to reconsider the Court’s previously established findings.
It is therefore clear from the record that Attorney Burgess pursued the
existing lines of defense, utilized the available testimony, and invoked
appropriate legal authority to advocate effectively on behalf of his client. In
acknowledgement of his attorney’s efforts, Antone-Herron averred at his

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plea colloquy that his counsel did good work and that he had no complaints
about the representation he received. (Doc. 6-3 at 4.) Nothing in AntoneHerron’s brief provides a sufficient basis for upsetting this conclusion now.
See Holmes v. United States, 876 F.2d 1545, 1553 (11th Cir. 1989) (a district
court is not required to hold an evidentiary hearing on a petitioner’s § 2255
claims when the petitioner’s allegations are affirmatively contradicted by the
record).
2. Antone-Herron fails to show that counsel’s performance
affected the outcome of the case.
A guilty plea that is induced by promises or threats which deprive it of
its voluntary character is void. Machibroda v. United States, 368 U.S. 487, 493
(1962). At the same time, plea bargaining retains its benefits of certainty and
efficiency “only if dispositions by guilty plea are accorded a great measure of
finality.” Blackledge v. Allison, 431 U.S. 63, 71 (1977).

“[T]he

representations of the defendant, his lawyer, and the prosecutor at [a plea]
hearing, as well as any findings made by the judge accepting the plea,
constitute a formidable barrier in any subsequent collateral proceedings.”
Id. at 73–74. There is “a ‘strong presumption’ that statements made by the
defendant during his plea colloquy are true.” United States v. Cardenas, 230
F. App’x 933, 935 (11th Cir. 2007) (citing United States v. Medlock, 12 F.3d
Page 16

185, 187 (11th Cir. 1994)).

“[T]herefore, ‘when a defendant makes

statements under oath at a plea colloquy, he bears a heavy burden to show
his statements were false.’” Id. (quoting United States v. Rogers, 848 F.2d
166, 168 (11th Cir.1988)). For that reason, ‘[t]he subsequent presentation of
conclusory allegations unsupported by specifics is subject to summary
dismissal, as are contentions that in the face of the record are wholly
incredible.” Blackledge, 431 U.S. at 74.
Assuming arguendo that Attorney Burgess’s representation fell below
professional standards, Antone-Herron nevertheless fails to establish that
there is a reasonable probability that the performance of his counsel affected
the outcome of his case. He alleges that it was “Attorney Burgess’s acts and
omissions that caused the challenged guilty plea to be [made] involuntarily,”
(Doc. 2 at 15) that “Attorney Burgess persisted that [he] plead guilty,” (Id.
at 7) and that “[entering] such a plea was apparently not the results of a
reasonable and well informed decision on his part.” (Id. at 6.) However,
these are mere “conclusory allegations” which Antone-Herron fails to
substantiate with particular facts or evidence. What is more, these allegations
are directly contradicted by Antone-Herron’s own prior testimony.

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At his plea hearing, Antone-Herron was placed under oath before
being questioned by this Court. After being sworn in, he was asked at length
about his understanding of the plea deal, whether it was his own decision to
enter the plea, and whether he had been somehow induced to plead guilty.
According to Antone-Herron’s testimony, he read the plea agreement
himself and had his attorney go over it with him (Doc. 6-3 at 5.) The plea was
signed and initialed on each page, and Antone-Herron confirmed the
authenticity of the signature. (Id. at 5.) He also swore he understood the
charges against him and the rights he was giving up by pleading guilty,
including the right to be presumed innocent, the right to a trial by jury, the
right to confront witnesses, and the right to call witnesses to testify on his
behalf. (Id. at 7-10.) The Court questioned whether Antone-Herron
understood the burden the government would have to carry to prove him
guilty of the particular offense. (Id. at 11.) In response to all the Court’s
inquiries, Antone-Herron repeatedly affirmed that he understood the nature
and consequences of the plea agreement and that it was his desire to plead
guilty. Most significantly to this action, the Court questioned AntoneHerron explicitly about the voluntariness of his plea.

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THE COURT:

All right. Has anybody threatened you,
forced you, or coerced you in any way to get
you to plead guilty?

THE DEFENDANT:

No, sir.

THE COURT:

Are you wanting to plead guilty because you
are, in fact, guilty?

THE DEFENDANT:

Yes, sir.

(Id. at 17-18.)
Based upon Antone-Herron’s own sworn testimony, this Court found
that he was fully competent and capable of entering an informed plea, that he
was aware of the nature of the charge and the consequences of entering the
plea, and that the plea of guilty was knowing and voluntary. (Id. at 19.)
Antone-Herron has made no effort to explain why his plea hearing testimony
should now be deemed false, and no facts contained within his brief suffice to
undermine this Court’s prior finding that the plea was valid.
IV. CONCLUSION
Since the Petitioner 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 reason, Antone-Herron’s § 2255
Page 19

motion is due to be denied and this action dismissed with prejudice. A
separate order will be entered consistent with this opinion.
DONE and ORDERED on July 1, 2015.

_____________________________
L. Scott Coogler
United States District Judge
160704

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