McDavid v. USA
Filing
9
ORDER denying 1 --motion to vacate/set aside/correct sentence (2255); denying a certificate of appealability; denying leave to appeal in forma pauperis; directing the Clerk to ENTER JUDGMENT against McDavid and to CLOSE the case. Signed by Judge Steven D. Merryday on 9/30/2014. (BK)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
UNITED STATES OF AMERICA
v.
CASE NO. 8:10-cr-68-T-23TGW
8:11-cv-2103-T-23TGW
JAMES McDAVID
/
ORDER
McDavid’s motion to vacate under 28 U.S.C. § 2255 (Doc. 1) challenges the
validity of his conviction for conspiring to possess with the intent to distribute fifty
grams or more of methamphetamine, for which offense McDavid is imprisoned for
168 months. Although admitting that the motion to vacate is timely (Response at 5,
Doc. 5), the United States argues that, as part of his plea agreement, McDavid
waived his right to raise the ground asserted in the motion to vacate. The motion to
vacate presents a single claim of ineffective assistance of counsel, which claim is both
waived and meritless.
PROCEDURAL HISTORY AND FACTS
McDavid was indicted for one count of conspiring to possess with the intent to
distribute fifty grams or more of methamphetamine. McDavid agreed to plead guilty
and waived his right to appeal or otherwise challenge his sentence. In exchange the
United States agreed (1) to withhold a sentencing enhancement that would have
mandated a sentence of life imprisonment, (2) to support a three-level reduction for
acceptance of responsibility, (3) to recommend a sentence at the low end of the
applicable guideline range, and (4) to support a sentence reduction based on
McDavid’s anticipated substantial assistance. McDavid agreed to the following
facts, as stated in the plea agreement (Doc. 52 at 14-15):
From a date unknown through and including February 13,
2009, the defendant James McDavid and Kimberly Broman
conspired to manufacture and distribute 50 grams or more of
methamphetamine actual. On February 13, 2009, members of
the Hernando County Sheriffs Office executed a search warrant
at a residence (trailer) on Gresham Road, Webster, Florida,
occupied at the time by James McDavid and Kimberly
Broman. When the officers arrived, they found Broman in the
trailer wearing heavy plastic gloves and holding a tube into the
top of a large Mason jar with a mixture of liquid which
contained methamphetamine. Nearby were filters, jars, and
other paraphernalia commonly used to manufacture
methampheta-mine, including Coleman fuel jars, hydrogen
peroxide, ammonia, butane, drain cleaners, muriatic acid, and
rubber gloves. One of the filters from one of the jars of liquid
had .16 grams of 95.4 % pure methamphetamine actual.
McDavid was standing outside the trailer with another male by
a shed that contained methamphetamine manufacturing
materials. In a post-arrest statement, McDavid stated that all
the methamphetamine on the property was his and that he had
cooked methamphetamine every couple of days, each time
producing approximately 4 to 5 grams. McDavid stated that he
obtained all his materials at nearby stores, such as Walmart,
Home Depot, Lowe’s and Walgreens. McDavid stated that he
sold methamphetamine to his friends for $10 a hit. While being
searched incident to arrest, Broman indicted that she had some
methamphetamine in her bra. When they searched her, officers
found .4 grams of 96.9 percent pure methamphetamine actual.
Pharmacy records later obtained by the DEA from CVS,
Walmart, and Walgreens showed that in the prior year
McDavid had obtained over 38 grams of pseudoephedrine and
Broman had obtained 99.6 grams of pseudoephedrine. The
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conservative theoretical yield of only 50% for these quantities of
pseudoephedrine is 17.55 grams and 45.81 grams of
methamphetamine actual respectively; however, the evidence
seized from the execution of the search warrant indicates a
much higher yield of over 90% actually was being produced by
the defendants.
APPEAL WAIVER
In his plea agreement McDavid agreed to waive his “right to appeal [his]
sentence or to challenge it collaterally on any ground” except under certain
inapplicable situations. (Doc. 52 at 12 in 10-cr-68) When he entered his guilty plea,
the Magistrate Judge specifically ensured that, under the terms of the appeal waiver,
McDavid understood that he was waiving any right to challenge the district court’s
calculation of his sentence. (Doc 105 at 21-22)
The Magistrate Judge: And in particular, what you cannot
appeal is the way the Court calculates the sentencing
guidelines. Do you understand that?
The Defendant: Yes, sir.
The Magistrate Judge: Furthermore, you cannot come back to
this court at some later time and complain about the calculation
either. Do you understand that?
The Defendant: Yes, sir.
The Magistrate Judge: And that includes being unable to come
back and complain that your lawyer was ineffective somehow
with respect to the guidelines. Do you understand that?
The Defendant: Yes, sir.
The Magistrate Judge: Do you have any question about that
provision?
The Defendant: No, sir.
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A valid appeal waiver precludes an ineffective assistance of counsel challenge
to the sentence. Williams v. United States, 396 F.3d 1340, 1342 (11th Cir.) (“[A] valid
sentence-appeal waiver, entered into voluntarily and knowingly, pursuant to a plea
agreement, precludes the defendant from attempting to attack, in a collateral
proceeding, the sentence through a claim of ineffective assistance of counsel during
sentencing.”), cert. denied, 546 U.S. 902 (2005). McDavid cannot circumvent the
appeal waiver provision by disguising his challenge as a claim of ineffective
assistance of counsel. “A contrary result would permit a defendant to circumvent the
terms of the sentence-appeal waiver simply by recasting a challenge to his sentence as
a claim of ineffective assistance, thus rendering the waiver meaningless.” Williams,
396 F.3d at 1342. As a consequence, McDavid waived his right to challenge the
calculation of his sentence, even under the guise of ineffective assistance of counsel.
INEFFECTIVE ASSISTANCE OF COUNSEL
McDavid claims ineffective assistance of counsel, a difficult claim to sustain.
“[T]he cases in which habeas petitioners can properly prevail on the ground of
ineffective assistance of counsel are few and far between.” Waters v. Thomas, 46 F.3d
1506, 1511 (11th Cir. 1995) (en banc) (quoting Rogers v. Zant, 13 F.3d 384, 386 (11th
Cir. 1994)). Strickland v. Washington, 466 U.S. 668 (1984), governs an ineffective
assistance of counsel claim:
The law regarding ineffective assistance of counsel claims is
well settled and well documented. In Strickland v. Washington,
466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the
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Supreme Court set forth a two-part test for analyzing ineffective
assistance of counsel claims. According to Strickland, first, the
defendant must show that counsel’s performance was deficient.
This requires showing that counsel made errors so serious that
counsel was not functioning as the “counsel” guaranteed the
defendant by the Sixth Amendment. Second, the defendant
must show that the deficient performance prejudiced the
defense. This requires showing that counsel’s errors were so
serious as to deprive the defendant of a fair trial, a trial whose
result is reliable. Strickland, 466 U.S. at 687, 104 S. Ct. 2052.
Sims v. Singletary, 155 F.3d 1297, 1305 (11th Cir. 1998).
Strickland requires proof of both deficient performance and consequent
prejudice. Strickland, 466 U.S. at 697 (“There is no reason for a court deciding an
ineffective assistance claim . . . to address both components of the inquiry if the
defendant makes an insufficient showing on one.”); Sims, 155 F.3d at 1305 (“When
applying Strickland, we are free to dispose of ineffectiveness claims on either of its
two grounds.”). “[C]ounsel is strongly presumed to have rendered adequate
assistance and made all significant decisions in the exercise of reasonable
professional judgment.” Strickland, 466 U.S. at 690. “[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.” 466
U.S. at 690. Strickland requires that “in light of all the circumstances, the identified
acts or omissions were outside the wide range of professionally competent
assistance.” 466 U.S. at 690.
McDavid must demonstrate that counsel’s alleged error prejudiced the defense
because “[a]n error by counsel, even if professionally unreasonable, does not warrant
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setting aside the judgment of a criminal proceeding if the error had no effect on the
judgment.” 466 U.S. at 691-92. To meet this burden, McDavid must show “a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” 466 U.S. at 694.
Strickland cautions that “strategic choices made after thorough investigation of
law and facts relevant to plausible options are virtually unchallengeable; and strategic
choices made after less than complete investigation are reasonable precisely to the
extent that reasonable professional judgments support the limitations on
investigation.” 466 U.S. at 690-91. McDavid cannot meet his burden merely by
showing that the avenue chosen by counsel proved unsuccessful.
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. We ask only whether some reasonable lawyer at the
trial could have acted, in the circumstances, as defense counsel
acted at trial . . . . 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). Accord Chandler v. United
States, 218 F.3d 1305, 1313 (11th Cir. 2000) (“To state the obvious: the trial lawyers,
in every case, could have done something more or something different. So,
omissions are inevitable . . . . [T]he issue is not what is possible or ‘what is prudent
or appropriate, but only what is constitutionally compelled.’”) (en banc) (quoting
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Burger v. Kemp, 483 U.S. 776, 794 (1987)). See also Jones v. Barnes, 463 U.S. 745, 751
(1983) (counsel has no duty to raise a frivolous claim).
McDavid pleaded guilty. Although the Strickland standard controls a claim
that counsel was ineffective for recommending that a client plead guilty, Hill v.
Lockhart, 474 U.S. 52 (1985), Agan v. Singletary, 12 F.3d 1012 (11th Cir. 1994), the
quantum of evidence needed to prove both deficient performance and prejudice is
different. “[C]ounsel owes a lesser duty to a client who pleads guilty than to one who
decided to go to trial, and in the former case counsel need only provide his client
with an understanding of the law in relation to the facts, so that the accused may
make an informed and conscious choice between accepting the prosecution’s offer
and going to trial.” Wofford v. Wainwright, 748 F.2d 1505, 1508 (11th Cir. 1984). To
prove prejudice, “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.” Hill v. Lockhart, 474 U.S. at 59.
SOLE GROUND FOR RELIEF
McDavid alleges a single ground for relief, specifically that trial counsel
rendered ineffective assistance by not moving to postpone sentencing until after the
effective date of a pending amendment to the sentencing guidelines. McDavid was
sentenced on September 21, 2010. Because he committed his offense less than two
years following his release from custody, the calculation of McDavid’s sentence
includes two points as required by the version of §4A1.1(e) in effect when he was
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sentenced. In addition to other changes, the United States Sentencing Commission’s
Amendment 742 removed from the sentencing calculus the addition of two points
under §4A1.1(e). Amendment 742 was scheduled to become effective on
November 1, 2010, approximately six weeks after McDavid’s sentencing.
McDavid was sentenced to 168 months based on a total offense level 33 and a
criminal history category III, which produces a sentencing range of 168 - 210 months.
McDavid contends that, without the extra two points, his total offense level would
be 31 and the criminal history category would remain III, which produces a
sentencing range of 135 - 168 months. McDavid contends that, if counsel had moved
to postpone sentencing to benefit from Amendment 742, he would have received a
low end sentence of 135 months, nearly three years less imprisonment. McDavid
faults counsel for not postponing sentencing.
Neither McDavid nor his counsel nor the government nor the district court
were ignorant about the effective date of Amendment 742. Trial counsel raised the
issue at sentencing and the question about retroactivity was discussed. (Doc. 75
at 4-6) The district court, already familiar with Amendment 742, stated that “there
are pluses and minuses in there and I couldn’t selectively enforce only the parts of it
that cut in the defendant’s favor without looking at the other part.” (Doc. 75 at 5)
Even assuming that trial counsel’s failure to move for a postponement was
deficient performance, McDavid cannot show prejudice because the district court
would have denied a postponement. The district court discussed the need to proceed
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with the action under the controlling law. Moreover, the government’s concessions
were based on the then-applicable guidelines and the prosecutor explained the
“appropriateness” of the sentencing range under the guidelines in effect on the date of
sentencing rather than the future guidelines under the amendment (Doc. 75 at 10):
[McDavid] has, although close together in time, two prior
cocaine sales and not one, which could have resulted in an
enhancement to a mandatory life, which we didn’t file because
he had said he wanted to cooperate. So, he has received a fairly
large benefit already from what he could have gotten.
....
I just wanted to point that out to the court that the guidelines
that he has right now, the applicable guideline range, is very
appropriate, especially in considering his – potentially, he could
have gotten the mandatory life sentence.
McDavid waived his right to challenge the calculation of his sentence, even
under the guise of ineffective assistance of counsel. McDavid proves neither deficient
performance nor prejudice as required under Strickland. McDavid had no guarantee
that the United States would have afforded him the same generous concessions if he
was sentenced after the effective date of Amendment 742.
Accordingly, the motion to vacate under 28 U.S.C. § 2255 (Doc. 1) is
DENIED. The clerk shall enter a judgment against McDavid and close this case.
DENIAL OF BOTH
CERTIFICATE OF APPEALABILITY
AND LEAVE TO APPEAL IN FORMA PAUPERIS
McDavid is not entitled to a certificate of appealability (“COA”). A prisoner
seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s
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denial of his petition. 28 U.S.C. § 2253(c)(1). Rather, a district court must first issue
a COA. Section 2253(c)(2) permits issuing a COA “only if the applicant has made a
substantial showing of the denial of a constitutional right.” To merit a certificate of
appealability, McDavid must show that reasonable jurists would find debatable both
(1) the merits of the underlying claims and (2) the procedural issues he seeks to raise.
See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 478 (2000); Eagle v.
Linahan, 279 F.3d 926, 935 (11th Cir 2001). Because McDavid fails to show that
reasonable jurists would debate either the merits of the claims or the procedural
issues, McDavid is not entitled to a certificate of appealability and he is not entitled
to appeal in forma pauperis.
Accordingly, a certificate of appealability is DENIED. Leave to proceed in
forma pauperis on appeal is DENIED. McDavid must obtain permission from the
circuit court to appeal in forma pauperis.
ORDERED in Tampa, Florida, on September 30, 2014.
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