Walker v. United States of America
Filing
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OPINION AND ORDER. Petitioner's motion to vacate, set aside, or correct an illegal sentence pursuant to 28 U.S.C. s. 2255 is DENIED. The Clerk of Court is directed to terminate any pending motions, enter judgment accordingly, and close thi s case. The Clerk of Court is further directed to file a copy of this Order in criminal case number 6:15-cr-96-RBD-TBS and to terminate the motion to vacate, set aside, or correct an illegal sentence pursuant to 28 U.S.C. s. 2255 pending in that case. Petitioner is denied a certificate of appealability. Signed by Judge Roy B. Dalton, Jr. on 12/29/2017. (LTG)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
RASHARD WALKER,
Petitioner,
v.
Case No: 6:16-cv-1857-Orl-37TBS
UNITED STATES OF AMERICA,
Respondent.
/
OPINION AND ORDER
This cause comes before the Court on Rashard Walker’s (“Petitioner’s” or
“Walker’s”) motion to vacate, set aside, or correct an illegal sentence (Doc. 1, filed October
24, 2016). Respondent filed a response in opposition to the motion (Doc. 6), and Walker
has filed a reply (Doc. 8). The motion is ripe for review. Upon review of the pleadings,
the Court concludes that Walker’s amended § 2255 motion must be denied.
A.
Background and Procedural History
On April 29, 2015, a federal grand jury in the Middle District of Florida indicted
Walker on one count of being a convicted felon in possession of a semi-automatic assault
rifle, a drum magazine, and 58 rounds of ammunition, in violation of 18 U.S.C. §§
922(g)(1) and 924(a)(2). 1
Walker signed a plea agreement on June 15, 2015. (Cr. Doc. 39). The factual basis
set forth in Walker’s plea agreement listed the facts giving rise to his arrest as follows:
The indictment was assigned criminal case number 6:15-cr-96-RBD-TBS. (Cr. Doc. 1).
Docket entries in Petitioner’s criminal case will be cited as (Cr. Doc.).
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On or about February 5, 2015, at approximately 5:45 p.m., the
Orlando Police Department SWAT team executed a state
search warrant at WALKER’s residence at the time, 734
Kankakee Lane, Orlando, Florida. When the SWAT team
entered the residence, WALKER was awakened from a nap in
his bedroom, exited his bedroom, and entered the hallway of
the residence. IN WALKER’s open bedroom closet, the
SWAT team found, in plain view, the Izhmash semiautomatic rifle, serial number H03600854, which was
manufactured in Russia. The SWAT team also found in
WALKER’s bedroom closet a large capacity loaded drum
magazine, a banana clip type loaded magazine, and 58 rounds
of 7.62X39 mm caliber ammunition.
(Cr. Doc. 39 at 17-18). Walker initialed the page setting forth the factual basis for his plea.
(Id.). On June 24, 2015, a change of plea hearing was held in front of the undersigned.
(Cr. Doc. 118). The Court determined that there was a factual basis for the plea, the plea
was accepted, and Walker was adjudicated guilty. (Id. at 21-22, 27).
On October 26, 2015, the Court sentenced Walker to ninety months in prison, a
variance below the low end of the applicable guidelines range. (Doc. 6-1 at 19). Walker
did not file a direct appeal of his conviction or sentence. Walker timely filed the instant
28 U.S.C. § 2255 motion on October 24, 2016 (Doc. 1).
II.
A.
Legal standards
Standard of Review under 28 U.S.C. § 2255
Title 28 U.S.C. § 2255 provides federal prisoners with an avenue for relief under
limited circumstances:
A prisoner in custody under sentence of a court established by Act of
Congress claiming the right to be released 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
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otherwise subject to attack, may move the court which imposed the
sentence to vacate, set aside or correct the sentence.
28 U.S.C. § 2255(a). If a court finds a claim under § 2255 to be valid, the court “shall vacate
and set the judgment aside and shall discharge the prisoner or resentence him or grant a
new trial or correct the sentence as may appear appropriate.” Id. at § 2255(b). To obtain
this relief on collateral review, a petitioner must clear a significantly higher hurdle than
exists on direct appeal. See United States v. Frady, 456 U.S. 152, 166 (1982) (rejecting the
plain error standard as not sufficiently deferential to a final judgment).
B.
Ineffective Assistance of Counsel
To prevail on a claim of ineffective assistance of counsel, Walker must show that:
(1) “counsel’s representation fell below an objective standard of reasonableness”; and (2)
“there is a reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 688,
694 (1984). These two elements are commonly referred to as Strickland’s performance and
prejudice prongs. Reece v. United States, 119 F.3d 1462, 1464 n.4 (11th Cir. 1997).
If a
petitioner fails to establish either Strickland prong, the Court need not consider the other
prong in finding that there was no ineffective assistance of counsel. Strickland, 466 U.S.
at 697.
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, when considering an ineffectiveness claim, must judge the reasonableness of
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counsel’s challenged conduct on the facts of the particular case, viewed as of the time of
counsel’s conduct. Id. at 690; see also 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 these
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).
III.
Analysis
Walker raises three claims of ineffective assistance of counsel in his § 2255 motion.
He asserts that defense counsel (“Counsel”) failed to object to: (1) the enhancement of his
sentence under U.S. Sentencing Guidelines Manuel (“U.S.S.G.”) § 2K2.1(b)(1)(A) due to
the number of firearms involved; (2) the enhancement to his sentence under U.S.S.G. §
2K2.1(b)(4)(A) due to a stolen firearm; and (3) the enhancement to his sentence under
U.S.S.G. § 2K2.1(b)(6)(B) for possessing a firearm or ammunition in connection with
another felony. (Doc. 2 at 5-8). Each claim will be addressed separately.
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A.
Claim One and Claim Two
In Claim One, Walker asserts that Counsel failed to object to the two-point
enhancement of his sentence for multiple firearms. (Doc. 2 at 5). He urges that Counsel
should have argued that Walker could not constructively possess any firearm in the
possession of co-defendants Sidney Johnson or Brandon Armstrong because he had no
knowledge of the firearms’ existence. (Id.). Walker now claims that he entered the home
where the firearms were found “only minutes before the police raid and had no
knowledge of any firearms possessed by Sidney Johnson or Brandon Armstrong.” (Id. at
6-7) (emphasis in original). In Claim Two, Walker asserts that Counsel failed to object to
the two-level enhancement for a stolen firearm, since the stolen firearm was in the
possession of Sidney Johnson. (Doc. 2 at 7).2 In support of these claims, Walker attaches
Sidney Johnson’s signed statement attesting that Walker arrived at the home only shortly
before the police raided it and that Walker had no knowledge of the firearms in his
(Johnson’s) possession. (Doc. 2-1).
Respondent argues that Claims One and Two must be denied because Counsel
objected to these enhancements, both in writing and during Walker’s sentencing hearing.
(Doc. 6 at 5). Indeed, Counsel’s written objections are discussed in Plaintiff’s Presentence
Investigation Report. (Cr. Doc. 78 at 25-26). Counsel objected to the enhancements again
at Walker’s sentencing hearing, arguing that Walker only pleaded guilty to possession of
The Sentencing Guidelines provide for a two-level enhancement if the defendant
engages in a prohibited transaction involving between three and seven firearms. U.S.S.G.
§ 2k2.1(b)(1)(A). If any of the firearms was stolen, the defendant is subject to an additional
two-level enhancement. U.S.S.G. § 2k2.1(b)(4)(A).
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one firearm; the other firearms were in the actual possession of Brandon Armstrong and
Sidney Johnson; and “there’s no way that the Government could prove that Mr. Walker
had any knowledge of that firearm being stolen.” (Doc. 6-1 at 4-5). The government
countered that Walker was a resident of the home where the guns were found and that
he constructively possessed the firearms because he “could exercise control of the
firearms that are in his residence.” (Id. at 6).3
After hearing arguments from Counsel and the government, the Court concluded:
All right. I am – Mr. Mandel – persuaded that the
Government’s argument is correct and that it’s proper to hold
Mr. Walker accountable for the firearms in the home, both
those that were in his private area of the residence as well as
those that were in the common area of the residence.
And just point out that obviously relevant conduct for the
purpose of the enhancement need not be charged or convicted
conduct.
And so I think the enhancements are properly applied. I also
think he was properly enhanced in paragraph 22 for the stolen
firearm enhancement.
(Id. at 7). Notably, during its argument to the Court on this issue, the government
stated—without objection from Counsel or Walker—that “Mr. Walker was a resident of
734 Kankakee Lane. That fact is undisputed.” (Doc. 6-1 at 6).
In his reply, Walker argues that “[w]hile true counsel made objections to Walker’s
enhancement regarding the number of firearms and the stolen firearms[, he] failed to
argue that such enhancements were invalid, due to Walker’s lack of ‘knowledge’ as to the
“Constructive possession” exists when a defendant has ownership, dominion, or control
over an object itself or dominion or control over the premises in which an object is
concealed. United States v. Hernandez, 433 F.3d 1328, 1333 (11th Cir. 2005).
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number of firearms or the fact that the firearms were stolen.” (Doc. 8 at 7). Walker bases
his arguments on a new factual scenario—offered for the first time in this petition—in
which he was not a resident of the home at which the firearms were found, but had
merely stopped by to visit a friend whose home was raided by the police a few moments
later. (Doc. 2 at 1-2).4 However, Walker initialed a plea agreement admitting that he lived
at the home and was asleep in his own bedroom when the SWAT team initiated its raid.
(Cr. Doc. 39 at 17).
At the plea colloquy, Walker was told to listen carefully to “the summary of the
facts that the Government claims they could prove if your case were to go to trial.” (Cr.
Doc. 118 at 19). Thereafter, the government read the factual basis into the record. (Id.).
Walker agreed that he resided at 734 Kankakee Lane and that he awoke from a nap in his
bedroom when the SWAT team arrived and found a firearm and ammunition in his
bedroom closet. (Id. at 21). The Court asked Walker whether he had listened to the
Government’s version of the facts and whether he “took issue” with any of the facts. (Id.
at 221-22). Walker expressly agreed with the government’s version of the facts, including
the assertion that he lived at 734 Kankakee Lane. (Id.).
Petitioner supports his § 2255 motion with a statement from co-defendant Sidney
Johnson who attests that Petitioner “never had knowledge of any firearms in [his]
possession” and that Petitioner “only entered the residence a short time before the house
was raided by law enforcement officers.” (Doc. 2-1). Petitioner offers no explanation for
why this version of the facts differs from that offered in his plea agreement and at the
plea colloquy. Nevertheless, Johnson’s statement, even if true, does not necessarily
foreclose a conclusion by Counsel that Petitioner lived in the home at 734 Kankakee Lane,
and that he was in constructive possession of the firearms found in the living room.
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“[S]olemn declarations in open court carry a strong presumption of verity” and
“constitute a formidable barrier in any subsequent collateral proceedings.” Blackledge v.
Allison, 431 U.S. 63, 74 (1977): see also United States v. Stitzer, 785 F.2d 1506, 1514 n. 4 (11th
Cir. 1986) (noting that “if the Rule 11 plea-taking procedure is careful and detailed, the
defendant will not later be heard to contend that he swore falsely”). It was reasonable
for Counsel to rely upon facts to which Walker stipulated, and Walker does not even
assert that Counsel was aware he lied to the Court about his address. That Walker now
changes his story is irrelevant to an ineffective assistance claim. Because Walker admitted
under oath that he lived at the residence raided by the SWAT team, reasonable competent
counsel could have concluded that Walker constructively possessed the three additional
firearms and that there were no additional grounds on which to object to the firearms’
consideration during sentencing. See Chandler v. United States, 218 F.3d 1305, 1315 (11th
Cir. 2000) (For a petitioner to show that the conduct was unreasonable, a petitioner must
establish that “no competent counsel would have taken the action that his counsel did
take”). Walker is not entitled to relief on these claims.
B.
Claim Three
Walker asserts that Counsel was ineffective for failing to object to the four-level
enhancement for possessing a firearm or ammunition in connection with another felony
under U.S.S.G. § 2K2.1(b)(6)(B). (Doc. 2 at 8). Walker bases this claim on the same
arguments set forth in Claims One and Two—that he did not live at the home where he
was found with the firearm, and he did not know about the heroin, powder cocaine,
MDMA, crack cocaine, cannabis and Alprazolam found there. (Id. at 9). Walker also
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argues that “mere possession” of a controlled substance is not a felony, and cannot
support an enhancement under U.S.S.G. § 2K2.1(b)(6)(B). (Id.).
As to his first contention, Walker admitted under oath that he lived in the home
where the firearms and the drugs were found. Counsel’s performance is not deficient
for relying on his client’s sworn statements. See discussion supra Claims One and Two.
Likewise, Walker’s “mere possession” argument does not entitled him to relief because
his sentence was properly enhanced under § 2K2.1(b)(6)(B). The Sentencing Guidelines
provide a four-level sentence enhancement if the defendant “used or possessed any
firearm or ammunition in connection with another felony offense; or possessed or
transferred any firearm or ammunition with knowledge, intent, or reason to believe that
it would be used or possessed in connection with another felony offense.” U.S.S.G. §
2K2.1(b)(6)(B). This enhancement applies “if the firearm or ammunition facilitated, or
had the potential of facilitating . . . any federal, state, or local offense . . . punishable by
imprisonment for a term exceeding one year, regardless of whether a criminal charge was
brought, or a conviction obtained.” Id. at § 2K2.1, cmt. n. 14(A), (C) (emphasis added).
The enhancement also applies “in the case of a drug trafficking offense in which a firearm
is found in close proximity to drugs, drug-manufacturing materials, or drug
paraphernalia.” Id. at § 2K2.1, cmt. n. 14(B)(ii). Nearly all of the drugs located in Walker’s
home were packaged for sale. (Cr. Doc. 78).
The Eleventh Circuit Court of Appeals has explained that “[a] firearm found in
close proximity to drugs or drug-related items simply has—without any requirement for
additional evidence—the potential to facilitate the drug offense.” United States v. Carillo–
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Ayala, 713 F.3d 82, 92 (11th Cir. 2013) (internal quotation marks omitted). See also United
States v. Johnson, 654 F. App’x 427, 428 (11th Cir. 2016) (holding that the district court did
not err by applying a four-level enhancement under § 2K2.1(b)(6)(B) because the
defendant had a firearm and large amounts of marijuana in his car at the same time);
United States v. Hopkins, 603 F. App’x 800, 804 (11th Cir. 2015) (when drugs were found in
close proximity to the firearm and were packaged in a way to indicate distribution, the
gun had the potential of facilitating a drug trafficking offense, and § 2K2.1(b)(6)(B)
applied). Because Walker’s offense was properly enhanced under § 2K2.1(b)(6)(B), any
objection by Counsel would have been overruled. Walker has demonstrated neither
deficient performance nor resulting prejudice, and Ground Three is denied.
Any of Walker’s allegations not specifically addressed herein have been found to
be without merit. Because each claim raised in the petition is conclusory, meritless, or
affirmatively contradicted in the record, an evidentiary hearing is not required. See
Holmes v. United States, 876 F.2d 1545, 1553 (11th Cir. 1989).
Accordingly, it is hereby ORDERED AND ADJUDGED:
1.
Walker’s motion to vacate, set aside, or correct an illegal sentence pursuant to
28 U.S.C. § 2255 (Doc. 1) is DENIED.
2.
The Clerk of the Court is directed to terminate any pending motions, enter
judgment accordingly, and close this case.
3.
The Clerk of the Court is further directed to file a copy of this Order in
criminal case number 6:15-cr-96-RBD-TBS and to terminate the motion to vacate, set
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aside, or correct an illegal sentence pursuant to 28 U.S.C. § 2255 (Cr. Doc. 116) pending in
that case.
IT IS FURTHER ORDERED:
A CERTIFICATE OF APPEALABILITY IS DENIED. A prisoner seeking a writ of
habeas corpus has no absolute entitlement to appeal a district court’s denial of his
petition. 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.” 28 U.S.C. § 2253(c)(2). To make such a showing, petitioner 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 are adequate to deserve encouragement to proceed further.” Miller–El v.
Cockrell, 537 U.S. 322, 336 (2003) (citation and quotation omitted). Walker has not made
the requisite showing in these circumstances.
Because Walker is not entitled to a
certificate of appealability, he is not entitled to proceed in forma pauperis on appeal.
DONE and ORDERED in Orlando, Florida on December 29th, 2017.
Copies furnished to:
Counsel of Record
Unrepresented Parties
SA: OrlP-4
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