Jackson v. USA
Filing
11
ORDER denying 1 MOTION to vacate, set aside or correct sentence (2255) Criminal Case No. 6:08-cr-54-OArl-31KRS filed by Anthony Grant Jackson.The Clerk of the Court shall enter judgment accordingly and is directed toclose this case.The Clerk of the Court is directed to file a copy of this Order in criminal case number 6:08-cr-54-Orl-31KRS and to terminate the motion to vacate, set aside, or correct an illegal sentence pursuant to 28 U.S.C. § 2255 (Criminal Case Doc. No. 91) pending in that case.This Court should grant an application for certificate of appealability only if the Petitioner makes "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). Petitioner has failed to make a substantial showing of the denial of a constitutional right. Accordingly, a Certificate of Appealability is DENIED in this case. Signed by Judge Gregory A. Presnell on 4/10/2014. (TKW)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
ANTHONY GRANT JACKSON,
Petitioner,
v.
Case No. 6:12-cv-1746-Orl-31KRS
(6:08-cr-54-Orl-31KRS)
UNITED STATES OF AMERICA,
Respondent.
ORDER
This case involves a motion to vacate, set aside, or correct an illegal sentence
pursuant to 28 U.S.C. § 2255 (Doc. No. 1) filed by Anthony Grant Jackson. The Government
filed a response (Doc. No. 4) to the section 2255 motion in compliance with this Court's
instructions and with the Rules Governing Section 2255 Proceedings for the United States
District Courts. Petitioner filed a reply and notice of supplemental authority to the
Government's response (Doc. Nos. 9 & 10).
Petitioner alleges six claims for relief. For the following reasons, the § 2255 motion
is denied.
I.
Procedural History
Petitioner was charged by indictment with unlawfully possessing a firearm and
ammunition as a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), (e)(1).
(Criminal Case No. 6:08-cr-54-Orl-31KRS, Doc. No. 1).1 On November 6, 2008, Petitioner
entered a plea of guilty before Magistrate Judge Karla R. Spaulding. (Criminal Case Doc.
No. 81.) Magistrate Judge Spaulding filed a Report and Recommendation, recommending
that the plea be accepted and that Petitioner be adjudicated guilty (Criminal Case Doc. No.
52). This Court accepted the plea and adjudicated Petitioner guilty (Criminal Case Doc.
No. 56). A sentencing hearing was conducted, and on March 17, 2009, the Court entered
a Judgment in a Criminal Case, sentencing Petitioner to a 180-month term of imprisonment
to be followed by three years of supervised release (Criminal Case Doc. No. 72).
Petitioner appealed his conviction and sentence. The Eleventh Circuit Court of
Appeals affirmed. The Supreme Court of the United States vacated and remanded for
further consideration in light of Johnson v. United States, 130 S. Ct. 1265 (2010). The Eleventh
Circuit affirmed Petitioner’s conviction and sentence on remand. United States v. Jackson,
440 F. App’x 857 (11th Cir. 2011). Petitioner filed a petition for writ of certiorari, which was
denied.
II.
Legal Standard
The Supreme Court of the United States in Strickland v. Washington, 466 U.S. 668
(1984), established a two-part test for determining whether a convicted person is entitled
to relief on the ground that his counsel rendered ineffective assistance: (1) whether
counsel’s performance was deficient and “fell below an objective standard of
reasonableness”; and (2) whether the deficient performance prejudiced the defense. Id. at
1
Criminal Case No. 6:08-cr-54-Orl-31KRS will be referred to as “Criminal Case.”
2
687-88. The prejudice requirement of the Strickland inquiry is modified when the claim is
a challenge to a guilty plea based on ineffective assistance. See Hill v. Lockhart, 474 U.S. 52,
58-59 (1985). To satisfy the prejudice requirement in such claims, “the defendant must
show 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.
A court must adhere to a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance. Strickland, 466 at 689-90. “Thus, a court
deciding an actual ineffectiveness claim must judge the reasonableness of counsel’s
challenged conduct on the facts of the particular case, viewed as of the time of counsel’s
conduct.” Id. at 690; Gates v. Zant, 863 F.2d 1492, 1497 (11th Cir. 1989).
As observed by the Eleventh Circuit Court of Appeals, the test for ineffective
assistance of counsel:
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. Courts also should at the start presume
effectiveness and should always avoid second guessing with the benefit of
hindsight. Strickland encourages reviewing courts to allow lawyers broad
discretion to represent their clients by pursuing their own strategy. We are
not interested in grading lawyers’ performances; we are interested in
whether the adversarial process at trial, in fact, worked adequately.
White v. Singletary, 972 F.2d 1218, 1220-21 (11th Cir. 1992) (citation omitted). Under those
rules and presumptions, “the cases in which habeas petitioners can properly prevail on the
ground of ineffective assistance of counsel are few and far between.” Rogers v. Zant, 13
F.3d 384, 386 (11th Cir. 1994).
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III.
Analysis
A.
Claim One
Petitioner asserts he was denied effective assistance of counsel prior to being
indicted in the federal court. In support of this claim, Petitioner maintains that his state
defense attorney, who represented him after he was arrested by state officials, failed to
advise him that his case would be referred to federal authorities if he did not accept the
State’s plea offer. He also complains that his state defense attorney failed to explain federal
suppression law and failed to move to suppress the firearm pursuant to Florida law. (Doc.
No. 1 at 14-15.) Petitioner further contends that his state defense attorney did not advise
him about the sentence he would face if charged and convicted in federal court. Id.
Initially, the Court notes that this claim is speculative at best. There is no indication
that Petitioner’s state defense attorney knew that federal charges would be filed against
Petitioner if he refused the State’s plea offer. Moreover, Petitioner’s state defense attorney
could not be expected to advise Petitioner of his potential sentence exposure for an
uncharged offense or about federal suppression law given that Petitioner was facing state
charges. Finally, Petitioner has not explained how his state defense attorney’s failure to
move to suppress the firearm in state court based on Florida law would have prevented the
filing of a federal charge or resulted in the suppression of the firearm in this Court.
Petitioner’s counsel in this Court filed a motion to suppress all evidence, and the motion
was denied. See Criminal Case Doc. Nos. 35 & 38. In sum, Petitioner has not demonstrated
either deficient performance or prejudice. Accordingly, claim one is denied.
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B.
Claims Two and Four
In claim two, Petitioner contends that the Armed Career Criminal Act (“ACCA”) is
unconstitutional. In claim four, Petitioner asserts that the Government’s “use of the
varying standards for exclusion of evidence violate [sic] [his] due process and fair trial
rights.” (Doc. No. 1 at 21.)
A federal criminal defendant who does not preserve a claim by objecting at trial or
raising the matter on direct appeal is procedurally barred from raising the claim in a § 2255
action. Jones v. United States, 153 F.3d 1305, 1307 (11th Cir. 1998). Procedural default may
be excused, however, upon a showing of cause and prejudice or a fundamental miscarriage
of justice. Mills v. United States, 36 F.3d 1052, 1055 (11th Cir. 1994). “Under the cause and
prejudice exception, a § 2255 movant can avoid application of the procedural default bar
by show[ing] cause for not raising the claim of error on direct appeal and actual prejudice
from the alleged error.” McKay v. United States, 657 F.3d 1190, 1196 (11th Cir. 2011) (Lynn
v. United States, 365 F.3d 1225, 1234 (11th Cir. 2004)). To demonstrate cause for failing to
raise a claim in an earlier proceeding, a petitioner must establish “‘some external
impediment preventing counsel from constructing or raising the claim.’” High v. Head, 209
F.3d 1257, 1262-63 (11th Cir. 2000) (quoting McCleskey v. Zant, 499 U.S. 467, 497 (1991)). To
show prejudice, the petitioner must demonstrate that the error complained of “‘actually
and substantially disadvantaged his defense so that he was denied fundamental fairness.’”
Wright v. Hopper, 169 F.3d 695, 706 (11th Cir. 1999) (McCoy v. Newsome, 953 F.2d 1252, 1261
(11th Cir. 1992)).
A defendant may demonstrate application of the fundamental
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miscarriage of justice exception by demonstrating “actual innocence.” McKay, 657 F.3d at
1196. “‘[A]ctual innocence’ means factual innocence, not mere legal insufficiency.” Id. at
1197 (quoting Bousley v. United States, 523 U.S. 614, 623 (1998)) (emphasis in original).
In the instant case, Petitioner did not raise these claims on direct appeal.
Furthermore, Petitioner has not demonstrated cause and prejudice to overcome his
procedural default nor has he established he is actually innocent. See, e.g., McKay, 657 F.3d
at 1196–98 (holding that a petitioner must establish that he is factually innocent of one of
his prior convictions to establish application of fundamental miscarriage of justice
exception to overcome procedural bar for claim of sentencing error based on career
offender designation).
Finally, assuming claim two is not procedurally barred from review as it may have
been raised on direct appeal and is premised on changes in the law pursuant to Alleyne v.
United States, __ U.S. __, 133 S. Ct. 2151, 2163, 186 L. Ed. 2d 314 (2013)2 and Descamps v.
United States, __ U.S. __, 133 S. Ct. 2276, 186 L. Ed. 2d 438 (2013),3 Petitioner is not entitled
to relief. The Supreme Court has stated that “a new rule is not ‘made retroactive to cases
2
Alleyne overruled Harris v. United States, 536 U.S. 545 (2002) and held that “any fact
that increases the mandatory minimum is an ‘element’ that must be submitted to the jury.”
133 S. Ct. at 2155.
3
Descamps held that the California burglary statute is nondivisible and thus the
district court could not apply the modified categorical approach in determining if the prior
conviction was a predicate offense under the ACCA. 133 S. Ct. at 2285–86.
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on collateral review’ unless the Supreme Court holds it to be retroactive.” Tyler v. Cain, 533
U.S. 656, 663 (2001); see also Spencer v. United States, 727 F.3d 1076, 1091 (11th Cir. 2013)
(holding that “allowing a first, timely-filed motion under section 2255 where a new
Supreme Court decision has been given retroactive effect, and where the prisoner has
preserved the issue of career offender categorization at both original sentencing and
appeal,” is permissible but only “if the new decision is retroactive”). The Supreme Court
has not held that Alleyne or Descamps is retroactively applicable to cases on collateral
review, and this Court has not located any cases applying Alleyne or Descamps retroactively
to cases on collateral review. See, e.g., Roscoe v. United States, Nos. 2:11-cr-97-JHH-RRA,
2013 WL 5636686 (N.D. Ala. Oct. 16, 2013) (refusing to apply Descamps retroactively in §
2255 motion); Owens v. United States, No. 1:09-cr-286-RWS-JFK-1, 2013 WL 6800193 (N.D.
Ga. Dec. 20, 2013) (holding that Alleyne does not apply retroactively to § 2255 motion).
Accordingly, claims two and four are barred from review, and alternatively, claim two is
denied.
B.
Claim Three
Petitioner asserts that his plea was involuntary. In support of this claim, Petitioner
contends that had he known that the Court could not sentence him to less than fifteen
years, he would not have entered a plea of guilty.
This claim is refuted by the record. At the plea hearing, the Court advised Petitioner
as follows: “The maximum penalty you face if you plead guilty is a term of imprisonment
of up to -- a minimum mandatory term of imprisonment of 15 years up to life
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imprisonment. . . .” (Criminal Case Doc. No. 81 at 9.) After defense counsel sought to
clarify the sentence to which Petitioner was subject and a subsequent recess was taken to
rectify any confusion, the following colloquy occurred:
The Court:
Ordinarily that offense would carry a maximum
penalty of up to ten years in jail. . . . However,
for an individual who has three previous violent
felony or serious drug offense convictions
committed on different occasions, if that’s
established, then the penalty becomes a
minimum mandatory of 15 years in jail up to life
imprisonment. . . . Now, as Mr. Skuthan
correctly said when we left off this morning, it
will be up to the district judge to decide whether
your prior criminal history qualifies for that
enhanced sentence which is called the armed
career criminal sentence. I don’t know today. I
don’t have the facts before me and I’m not the
one who would make that decision anyway. So
what is important for you to understand is if you
plead guilty and the judge decides you are an
armed career criminal, that you meet those other
factors, you wouldn’t then be able to say I want
to withdraw my guilty plea and go back to trial.
Understand?
[Petitioner]: Yes, ma’am.
Id. at 14-15. Thus, contrary to Petitioner’s assertion, prior to entering his plea, Petitioner
was advised that he would be subject to a fifteen-year minimum mandatory sentence if the
ACCA was determined to apply at sentencing. Petitioner affirmed that he understood this.
Petitioner’s representations constitute “a formidable barrier in any subsequent collateral
proceedings. Solemn declarations in open court carry a strong presumption of verity.”
Blackledge v. Allison, 431 U.S. 63, 73-74 (1977). Accordingly, claim three is denied.
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D.
Claim Five
Petitioner maintains that counsel rendered ineffective assistance at sentencing.4 In
support of this claim, Petitioner maintains that counsel failed to object to the use of his 1990
conviction for delivery of cocaine as a predicate offense under the ACCA. (Doc. No. 1 at
22.)
The transcript from the sentencing hearing establishes that counsel adamantly
argued against application of the ACCA. Counsel objected to the use of Petitioner’s
convictions for resisting an officer without violence and delivery of cocaine as predicate
offenses. (Criminal Case Doc. No. 76 at 1-14.) Counsel further objected to application of
the ACCA because the predicate offenses were not admitted by Petitioner or found by a
jury. Id. at 14-16. Nevertheless, the Court found that Petitioner’s prior offenses were
predicate offenses under the ACCA and overruled all of counsel’s objections to the
application of the ACCA. Id.
Furthermore, at the time of Petitioner’s sentencing, the Eleventh Circuit had
concluded that delivery of cocaine under Florida law qualifies as a serious drug offense
under the ACCA. See United States v. Pitts, 394 F. App’x 680, 683-84 (11th Cir. 2010) (citing
18 U.S.C. § 924(e)(2)(A)(ii)); see also United States v. Bailey, 522 F. App’x 497 (11th Cir. 2013)
(holding that when the judgments indicate that prior Florida convictions were for “sale or
4
Petitioner also asserts that this Court erred by failing to independently examine
whether his prior offenses were predicate offenses under the ACCA. (Doc. No. 1 at 22.)
This claim, however, is procedurally barred because it should have been raised on direct
appeal. Petitioner has not established cause or prejudice or a fundamental miscarriage of
justice to overcome the procedural default.
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delivery” of cocaine with no mention of “purchase”, then the prior conviction for sale or
delivery of a controlled substance or for possession of a controlled substance with intent
to sell or delivery are serious drug offenses under the ACCA). Thus, had counsel objected
to the use of Petitioner’s prior conviction for delivery of cocaine on the basis that it was not
a serious drug crime, the objection would have been ovverruled. Accordingly, Petitioner
has not demonstrated that counsel was deficient at sentencing or that prejudice resulted
from counsel’s performance, and claim five is denied.
F.
Claim Six
Petitioner contends that counsel rendered ineffective assistance by failing to raise
issues on appeal. Specifically, Petitioner argues that counsel should have raised on appeal
“the variable standards of exclusionary rule, the existing circuit precedent that the 1990
version of the Fla. Stat. § 893.13 is ambiguous, and the fundamentally unfair framework
where an individual only learns of a mandatory minimum after pleading guilty.” (Doc.
No. 1 at 23.)
As an initial matter, the Court notes that the portions of this claim concerning the
variable standard of the exclusionary rule and Section 893.13, Florida Statutes are vague.
To the extent Petitioner is complaining that counsel should have appealed the denial of his
motion to suppress, Petitioner has not demonstrated that an appeal of the matter would
have been successful. There is no indication that this Court erred in denying Petitioner’s
motion to suppress. Similarly, as noted in claim five supra, convictions pursuant to Section
893.13, Florida Statutes for delivery of cocaine have been held to be serious drug offenses
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under the ACCA. Thus, counsel was not deficient for failing to raise these issues on
appeal, nor has Petitioner established that he was prejudiced as a result.
With respect to Petitioner’s contention that counsel should have argued on appeal
that he was not informed of the mandatory minimum sentence until after he pled guilty,
this argument is refuted by the record. As discussed supra in claim three, Petitioner was
advised at the plea hearing of the mandatory minimum sentence to which he would be
subject if the Court determined the ACCA applied. Counsel, therefore, had no basis on
which to raise this issue, nor was Petitioner prejudiced as a result. Accordingly, claim six
is denied pursuant to Strickland.
Any of Petitioner's allegations not specifically addressed herein have been found to
be without merit.
Accordingly, it is hereby ORDERED AND ADJUDGED:
1.
Petitioner’s motion to vacate, set aside, or correct an illegal sentence pursuant
to 28 U.S.C. § 2255 (Doc. No. 1) is DENIED.
2.
The Clerk of the Court shall enter judgment accordingly and is directed to
close this case.
3.
The Clerk of the Court is directed to file a copy of this Order in criminal case
number 6:08-cr-54-Orl-31KRS and to terminate the motion to vacate, set aside, or correct
an illegal sentence pursuant to 28 U.S.C. § 2255 (Criminal Case Doc. No. 91) pending in that
case.
4.
This Court should grant an application for certificate of appealability only if
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the Petitioner makes “a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). Petitioner has failed to make a substantial showing of the denial of a
constitutional right.5 Accordingly, a Certificate of Appealability is DENIED in this case.
DONE AND ORDERED in Orlando, Florida, this 10th day of April, 2014.
Copies to:
OrlP1 4/7
Anthony Grant Jackson
Counsel of Record
5
Pursuant to the Rules Governing Section 2255 Proceedings for the United States District
Court, “[t]he district court must issue or deny a certificate of appealability when it enters
a final order adverse to the applicant.” Rules Governing § 2255 Proceedings, Rule 11, 28
U.S.C. foll. § 2255.
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