Dunham v. USA
Filing
13
OPINION AND ORDER granting 12 Motion for expedited ruling; dismissing 1 Motion to vacate/set aside/correct sentence (2255) with prejudice pursuant to a valid plea waiver and alternatively denying. The Clerk shall enter judgment accordingly, place a copy of the judgment in the corresponding criminal case (Case No. 2:12-cr-113-FTM-99DNF), and close the civil file. A certificate of appealability is denied. Signed by Judge John E. Steele on 6/30/2016. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JESSE DUNHAM,
Petitioner,
v.
Case No: 2:15-cv-62-FtM-29DNF
Case No. 2:12-cr-113-FtM-99DNF
UNITED STATES OF AMERICA,
Respondent.
OPINION AND ORDER
This matter comes before the Court on Petitioner’s Motion
under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence
Pursuant to 28 U.S.C. § 2255 (Cv. Doc. #1; Cr. Doc. #101) 1 filed
on February 2, 2015. Additionally, Petitioner filed a Memorandum
of Law in Support of Petition Filed Under 28 U.S.C. § 2255 (Cv.
Doc. # 2; Cr. Doc. #101).
The United States filed its Response
in Opposition to Petitioner’s Motion to Vacate, Set Aside, or
Correct Sentence, Pursuant to 28 U.S.C. § 2255 on April 2, 2015.
(Cv. Doc. #8; Cr. Doc. #101.)
Thereafter, Petitioner filed a
Reply to the United States’ Response in Opposition (Cv. Doc. #9)
1
The Court will make reference to the dockets in the instant
action and in the related criminal case throughout this Opinion
and Order. The Court will refer to the docket of the civil habeas
case as “Cv. Doc.”, and will refer to the docket of the underlying
criminal case as “Cr. Doc.”
- 1 -
on April 23, 2015. For the reasons set forth below, Petitioner’s
motion is dismissed.
I.
On October 3, 2012, a federal grand jury in Fort Myers,
Florida returned a one-count Indictment (Cr. Doc. #3) charging
Petitioner, Jesse Dunham, and one other co-defendant with one count
of knowingly and willfully combining, conspiring, and agreeing
with each other and others known and unknown to the grand jury, to
distribute
100
kilograms
or
more
of
a
mixture
containing a detectable amount of marijuana.
or
substance
On March 14, 2013,
Petitioner pled guilty to the Indictment pursuant to a written
Plea Agreement.
(Cr. Doc. #51.)
The Court accepted Petitioner’s
guilty plea and adjudicated him guilty on March 15, 2013. (Cr.
Doc. #63.) On July 22, 2013, the Court sentenced Petitioner to a
60 month term of imprisonment, to be followed by four years of
supervised release.
(Cr. Doc. #88.)
filed on July 22, 2013.
on July 26, 2013.
Judgment (Cr. Doc. #77) was
Petitioner timely filed a notice of appeal
(Cr. Doc. #82.)
On February 10, 2014, the
Eleventh Circuit Court of Appeals granted the government’s motion
to dismiss Petitioner’s appeal.
(Cr. Doc. #98.)
Petitioner filed this § 2255 motion on February 2, 2015.
(Cv. Doc. #1; Cr. Doc. #101.)
Read liberally, Petitioner’s § 2255
Petition sets forth that Petitioner’s plea of guilty was not
- 2 -
entered
voluntarily,
knowingly,
or
intelligently
due
to
ineffective assistance of counsel when his trial attorney advised
him that if Petitioner did not sign the Plea Agreement the United
States would bring more severe charges against him.
II.
A. Timeliness of § 2255 Petition
Federal prisoners whose convictions became final after April
24, 1996, the effective date of the AEDPA, have one year from the
latest of any of four events to file a § 2255 motion: (1) the date
on which the conviction became final; (2) the date on which any
government-imposed impediment to making the motion is removed; (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 the facts supporting
the claim or claims presented could have been discovered through
the exercise of due diligence.
28 U.S.C. §2255; see also Pruitt
v. United States, 274 F.3d 1315, 1317 (11th Cir. 2001).
As
relevant here, a conviction becomes “final” for purposes of seeking
post-conviction relief on: “(1) the date on which the district
court enters judgment against the defendant; (2) the date on which
the court of appeals issues the mandate on direct appeal; or (3)
the date on which certiorari is denied, or on which the period to
- 3 -
seek certiorari expires.
Kaufmann v. United States, 282 F.3d
1336, 1337 (11th Cir. 2002); Clay v. United States, 537 U.S. 522,
527 (2003) (collecting cases).
Petitioner’s conviction became
final on February 10, 2014, when the Eleventh Circuit granted the
government’s motion to dismiss the appeal. Accordingly, Petitioner
had
until
February
10,
2015
to
file
the
instant
motion.
Petitioner’s motion was filed on February 2, 2015 and is therefore
timely.
28 U.S.C. § 2255(f).
B. Waiver in Plea Agreement
The United States argues that Petitioner is not entitled to
review of the length of his sentence because his written Plea
Agreement contained an express waiver of the right to challenge
his sentence directly or in a collateral proceeding.
#8, p. 4-5.)
(Cv. Doc.
The Court agrees.
Petitioner’s written Plea Agreement, which is signed and
initialed on each page, contains a waiver of appeal and collateral
challenge provision, which states in pertinent part:
The defendant agrees that this Court has
jurisdiction and authority to impose any
sentence up to the statutory maximum and
expressly
waives
the
right
to
appeal
defendant’s sentence on any ground. . . except
(a) the ground that the sentence exceeds the
defendant’s applicable guideline range as
determined by the Court pursuant to the United
States Sentencing Guidelines; (b) the ground
that the sentence exceeds the statutory
maximum penalty; or (c) the ground that the
- 4 -
sentence violates the Eighth Amendment to
Constitution; provided, however, that if
government exercises its right to appeal
sentence imposed, as authorized by Title
United States Code, Section 3742(b), then
defendant is released from his waiver and
appeal the sentence as authorized by Title
United States Code, Section 3742(a).
(Cr. Doc. #51, p. 12) (emphasis added).
the
the
the
18,
the
may
18,
A waiver provision in a
plea agreement is valid if made knowingly and voluntarily.
United
States v. Weaver, 275 F.3d 1320, 1333 (11th Cir. 2001) (citing
United States v. Bushert, 997 F.2d 1343, 1350-51 (11th Cir. 1993)).
A valid and enforceable appeal waiver, however, only precludes
challenges that fall within its scope. United States v. Hardman,
778 F.3d 896, 899 (11th Cir. 2014).
1) Scope
Analysis
of
a
waiver
provision
within
a
plea
agreement
requires that the court determine if the appeal falls within the
scope of the waiver. Hardman, 778 F.3d at 899. In Petitioner’s
change of plea colloquy, the Court specifically advised Petitioner
that
one
of
the
provisions
of
the
Plea
Agreement
he
signed
expressly waived his right to appeal his sentence or “to challenge
it on any ground, . . .”
(Cr. Doc. #60, p. 13.)
Petitioner told
the Court he understood this and was making the waiver knowingly
and voluntarily.
(Cr. Doc. #60, p. 13.)
A petitioner who files
a § 2255 motion is seeking a collateral remedy, Battle v. United
- 5 -
States, 419 F.3d 1292, 1297 (11th Cir. 2005), and therefore this
§ 2255 motion falls within the waiver provision.
2) Knowing and Voluntary
A waiver provision in a plea agreement is valid if made
knowingly and voluntarily.
United States v. Weaver, 275 F.3d
1320, 1333 (11th Cir. 2001) (citing United States v. Bushert, 997
F.2d 1343, 1350-51 (11th Cir. 1993)).
To establish that the waiver
was made knowingly and voluntarily, the government must show that
either:
(1)
the
district
court
specifically
questioned
the
defendant about the waiver during the plea colloquy; or (2) the
record makes clear that the defendant otherwise understood the
full significance of the waiver.
United States v. Johnson, 541
F.3d 1064, 1066 (11th Cir. 2008).
As referenced above, in the change of plea colloquy, the Court
expressly advised Petitioner that one of the provisions of the
Plea Agreement he signed waived his right to appeal his sentence
on any ground, including the ground that the Court erred in
determining the guideline range (with three exceptions).
Doc.
#64,
p.
18.)
Petitioner
verbally
indicated
(Cr.
that
he
understood the waiver provision and provided that he was entering
into the waiver knowingly and voluntarily.
(Cr. Doc. #64, p. 19.)
Moreover, the Court specifically questioned Petitioner regarding
whether
or
not
he
was
entering
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the
guilty
plea
freely
and
voluntarily, and Petitioner responded in the affirmative.
Doc. #64, p. 19.)
(Cr.
Finally, the Plea Agreement itself contains a
section that provides in pertinent part:
The defendant acknowledges that defendant is
entering into this agreement and is pleading
guilty freely and voluntarily without reliance
upon any discussions between the attorney for
the
government
and
the
defendant
and
defendant’s attorney and without promise of
benefit
of
any
kind
(other
than
the
concessions contained herein), and without
threats, force, intimidation, or coercion of
any kind. The defendant further acknowledges
. . . that defendant has the right to plead
not guilty or to persist in that plea if it
has already been made, and the defendant has
the right to be tried by a jury with the
assistance of counsel . . .
(Cr. Doc. #51, p. 13.)
This section was initialed by Petitioner
and when viewed in conjunction with the plea colloquy, it is clear
that Petitioner’s waiver was freely and voluntarily made and
Petitioner’s Motion to Vacate is accordingly barred by the same.
3) Miscarriage of Justice
The merits of a procedurally defaulted claim may also be
reached in very narrowly defined circumstances if failure to
address the claim would result in a “fundamental miscarriage of
justice.”
Murray v. Carrier, 477 U.S. 478 (1986).
Any argument
of a miscarriage of justice in this case is belied by the record.
The Court expressly informed Petitioner, at the plea hearing, that
the Court was unable to determine the appropriate guideline range
- 7 -
for
sentencing
until
after
the
presentence
report
had
been
completed, and further informed Petitioner that his counsel was
likewise unable to predict what guideline would apply prior to the
creation of the presentence report.
(Cr. Doc. #64, p. 17.)
The
Court further instructed Petitioner that he would be unable to
withdraw a plea of guilty on the ground that any prediction made
by the attorney proved to be inaccurate and advised Petitioner
that his sentence would be somewhere between five and forty years.
(Id., p. 18.)
Petitioner indicated that he understood and still
intended to go forward with his guilty plea.
(Id., p. 18.)
Petitioner has therefore not shown that a miscarriage of justice
would
result
in
the
instant
case
wherein
he
knowingly
and
voluntarily waived his right to appeal. Accordingly, Petitioner’s
claim must fall within the enumerated exceptions in the Plea
Agreement in order to be exempt from the waiver provision therein.
4) Exceptions
Petitioner’s claim does not meet any of the three exceptions 2
enumerated in the Plea Agreement, and the government did not appeal
2
Petitioner’s Plea Agreement provides that Petitioner may
appeal: 1) on the ground that the sentence exceeds the defendant’s
applicable guidelines range as determined by the Court; 2) on the
ground that the sentence exceeds the statutory maximum penalty; or
3) on the ground that the sentence violates the Eighth Amendment
to the Constitution. (Cr. Doc #51, p. 12.)
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the sentence.
Therefore, Petitioner’s ability to collaterally
challenge his sentence was waived by his Plea Agreement, and the
§ 2255 motion will be dismissed on this basis. Additionally, even
if Petitioner’s argument was not barred by the waiver provision in
the Plea Agreement, it is without merit as discussed below.
III.
To prevail on a claim of ineffective assistance of counsel,
a habeas petitioner must demonstrate both (1) that his counsel's
performance was deficient, and (2) a reasonable probability that
the deficient performance prejudiced the defense. Strickland v.
Washington, 466 U.S. 668, 687 (1984); Padilla v. Kentucky, 130 S.
Ct. 1473, 1482 (2010).
“As to counsel’s performance, ‘the Federal
Constitution imposes one general requirement: that counsel make
objectively reasonable choices.’”
Reed v. Sec’y, Fla. Dep’t of
Corr., 593 F.3d 1217, 1240 (11th Cir. 2010) (quoting Bobby v. Van
Hook,
130
S.
Ct.
13,
17
(2009)).
A
court
must
“judge
the
reasonableness of counsel’s conduct on the facts of the particular
case, viewed as of the time of counsel’s conduct.”
Roe v. Flores-
Ortega, 528 U.S. 470, 477 (2000) (quoting Strickland, 466 U.S. at
690).
This judicial scrutiny is highly deferential, and the court
adheres to a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance.
466
U.S.
at
689-90.
To
be
objectively
- 9 -
Strickland,
unreasonable,
the
performance must be such that no competent counsel would have taken
the action.
Hall v. Thomas, 611 F.3d 1259, 1290 (11th Cir. 2010);
Grayson
Thompson,
v.
257
F.3d
1194,
1216
(11th
Cir.
2001).
Additionally, an attorney is not ineffective for failing to raise
or preserve a meritless issue. Ladd v. Jones, 864 F.2d 108, 10910 (11th Cir. 1989); United States v. Winfield, 960 F.2d 970, 974
(11th Cir. 1992).
To establish prejudice under Strickland, Petitioner must show
more than that the error had “some conceivable effect on the
outcome of the proceeding.”
Corr.,
429
F.3d
1278,
Marquard v. Sec'y for the Dep’t of
1305
(11th
Cir.
2005).
“Rather,
the
petitioner must show that there is a reasonable probability that,
but
for
counsel’s
unprofessional
errors,
proceeding would have been different.”
the
result
of
the
Id. (quotation marks
omitted). “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Strickland, 466 U.S. at 694.
Petitioner
argues
that
he
was
provided
with
ineffective
assistance of counsel when his attorney erroneously advised him
that that the government would bring more severe charges against
him if he did not enter a plea of guilty pursuant to the negotiated
plea agreement.
(Cv. Doc. #1; Cr. Doc. #101, p. 5.)
During
Petitioner’s plea colloquy, the Court asked if Petitioner was
coerced to enter into the negotiated plea agreement.
- 10 -
(Cr. Doc.
#64, p. 5.)
Petitioner asserted that his life had not been
threatened, but did indicate that it was his understanding that if
he proceeded to trial, he would face additional charges through a
superseding
penalties
indictment,
associated
and
with
that
a
the
superseding
potentially
indictment
driving factor behind entry of his guilty plea.
p. 5.)
increased
were
the
(Cr. Doc. #64,
The Court pursued the line of questioning and asked
Petitioner if he understood that it was within the government’s
power to amend or supersede the Indictment, and asked if Petitioner
believed that he was, in fact, guilty.
(Cr. Doc. #64, p. 6.)
Petitioner affirmed that he recognized the government’s capacity
to supersede the Indictment, but denied that he was guilty on the
“federal level” for the offense, but rather stated that he was
merely guilty on the “state level.”
(Cr. Doc #64, p. 6.)
Thus,
Petitioner now asserts that the misinformation provided by trial
counsel equates to coercion and constitutes failure to provide
effective
assistance
of
counsel
as
guaranteed
by
the
Sixth
Amendment.
Plea bargaining flows from the mutuality of advantage between
defendants and prosecutors; each with his own reason for wanting
to avoid trial. Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978)
(quoting Brady v. United States, 397 U.S. 742, 752 (1970)).
Thus,
the plea bargaining process is fundamental to this country’s
- 11 -
criminal justice system.
Id. at 361.
Defendants advised by
competent counsel are presumptively capable of intelligent choice
in response to prosecutorial persuasion, and acceptance of a guilty
plea necessarily implies rejection of any notion that a guilty
plea is involuntary in a constitutional sense simply because it is
the end result of the bargaining process. Id.
A prosecutor may
seek a superseding indictment at any time prior to a trial on the
merits, so long as the purpose is not to harass the defendant such
that the action would amount to prosecutorial vindictiveness.
United States v. Barner, 441 F.3d 1310, 1315 (11th Cir. 2006).
In
this context, courts have adopted the plain meaning of the term
vindictiveness such that it is defined as the desire to punish a
person
for
exercising
his
or
her
rights.
Id.
Although
a
prosecutor’s decision to seek heightened charges after a defendant
successfully appeals his conviction is deemed by the courts to
carry a presumption of vindictiveness, proof that a prosecutor has
made the decision to increase charges after a defendant exercises
his or her constitutional rights does not alone give rise to a
presumption of the same in the pretrial context.
Id. at 1316.
Indeed, in Barner, the Eleventh Circuit determined that the filing
of a fifth superseding indictment did not amount to prosecutorial
vindictiveness.
Id. at 1322.
- 12 -
While confronting a defendant with the risk of a more severe
punishment if a plea bargain is rejected may have a discouraging
effect on the defendant’s assertion of his trial rights, the
imposition
of
these
difficult
choices
is
inevitable
and
permissible. Bordenkircher, 434 U.S. 357 at 364 (holding that by
tolerating and encouraging the negotiation of pleas, the Court has
necessarily accepted as constitutionally legitimate the reality
that the prosecutor’s interest at the bargaining table is to
persuade a defendant to forgo his right to plead not guilty).
Provided a prosecutor has probable cause to believe that the
accused committed an offense defined by statute, the decision
whether
or
discretion.
not
to
Id.
prosecute
generally
Thus,
tolerating
in
rests
and
entirely
in
his
encouraging
the
negotiation of pleas, courts have accepted as constitutionally
legitimate the reality that a prosecutor’s interest is to persuade
the defendant to forgo his right to plead not guilty, and to reject
this notion could only invite unhealthy subterfuge that would
destroy the practice of plea bargaining altogether.
Id. at 364-
65.
In the instant case, Petitioner was confronted with the
possibility of a superseding indictment and increased penalties
should the plea offer be rejected.
forthright
dealings
with
To find that the prosecution’s
trial
- 13 -
counsel
in
this
case
are
unconstitutional, or to insist that trial counsel was ineffective
for conveying this information to Petitioner would be inconsistent
with the Supreme Court’s holding in Bordenkircher, and would
undermine the plea bargaining process.
Accordingly, Petitioner’s
§ 2255 motion is denied, in the alternative, on the merits.
Accordingly, it is now
ORDERED:
1. Petitioner’s Motion Under 28 U.S.C. § 2255 to Vacate, Set
Aside, or Correct Sentence By a Person in Federal Custody (Cv.
Doc. #1) is DISMISSED with prejudice pursuant to a valid plea
waiver.
Alternatively,
reasons stated above.
Petitioner’s
Motion
is
DENIED
for
the
The Motion is otherwise DENIED as to all
other issues.
2. Petitioner’s Motion for Expedited Ruling on Pending Motion
to Vacate, Set Aside or Correct Sentence (Cv. Doc. #12) is GRANTED
to the extent this Opinion and Order has issued.
3. The Clerk of the Court shall enter judgment accordingly
and close the civil file.
The Clerk is further directed to place
a copy of the civil Judgment in the criminal file.
IT IS FURTHER ORDERED:
A CERTIFICATE OF APPEALABILITY (COA) IS DENIED.
A prisoner
seeking a writ of habeas corpus has no absolute entitlement to
appeal a district court’s denial of his petition.
- 14 -
28 U.S.C. §
2253(c)(1); Harbison v. Bell, 556 U.S. 180 (2009).
“A [COA] may
issue . . . only if the applicant has made a substantial showing
of the denial of a constitutional right.”
To
make
such
a
showing,
Petitioner
28 U.S.C. § 2253(c)(2).
“must
demonstrate
that
reasonable jurists would find the district court’s assessment of
the constitutional claims debatable or wrong,” Tennard v. Dretke,
542 U.S. 274, 282 (2004) or, that “the issues presented were
adequate to deserve encouragement to proceed further.”
Miller-El
v. Cockrell, 537 U.S. 322, 336 (2003) (citations and internal
quotation marks omitted).
Petitioner has not made the requisite
showing in these circumstances.
DONE AND ORDERED at Fort Myers, Florida, this
of June, 2016.
Copies:
Petitioner
AUSA
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30th
day
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