Wilson v. United States of America
Filing
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ORDER denying 3 Amended Motion to vacate/set aside/correct sentence (2255). The Clerk is to enter judgment for Respondent, United States of America, terminate any pending motions, and close this case. The Clerk is directed to terminate from pe nding status the amended motion to vacate found at Doc. 185 in the underlying criminal case, case number 8:13-cr-434-T-30TBM. Because Petitioner is not entitled to a certificate of appealability, he is not entitled to appeal in forma pauperis. Signed by Judge James S. Moody, Jr. on 8/4/2017. (LN)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
DESMOND WILSON,
Petitioner,
v.
CASE NO: 8:16-cv-3346-T-30TBM
Crim. Case No: 8:13-cr-434-T-30TBM
UNITED STATES OF AMERICA,
Respondent.
________________________________/
ORDER
This cause comes before the Court on Petitioner’s Amended Motion to Vacate, Set
Aside, or Correct Sentence pursuant to 28 U.S.C. section 2255 and the Government’s
response. Petitioner was arrested and convicted of drug trafficking after the boat he was on
was found with over 1,000 kilograms of marijuana. Petitioner now argues his conviction
should be overturned because his counsel’s performance was so deficient that he was
prejudiced. Specifically, Petitioner argues he would have received a plea deal and lesser
sentence but for the ineffective performance of counsel. The Government argues (1) that
Petitioner maintains his innocence and, thus, is unable to receive a plea deal; (2) plea deals
are not guaranteed; and (3) regardless of sentencing guidelines, Petitioner still faces a
statutory mandatory-minimum sentence of 10 years’ imprisonment. Because Petitioner has
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not shown that counsel’s performance was deficient or that the performance prejudiced
him, the Court concludes his Motion must be denied.
BACKGROUND
In August 2013, a United States Coast Guard law enforcement team (“USCG”)
observed a Jamaican fishing vessel, named “Miss Tiffany,” in the waters north of
Venezuela. The USCG saw the Miss Tiffany crew, of which Petitioner was a member,
jettisoning bales of marijuana. The USCG recovered the bales and seized Petitioner and a
co-defendant, both of whom were from Guyana.
In September 2013, Petitioner was charged with conspiracy to possess with intent
to distribute 1,000 kilograms or more of a mixture or substance containing a detectable
amount of marijuana, a Schedule I controlled substance, while on board a vessel subject to
the jurisdiction of the United States of America (Count I), and possession with intent to
distribute 1,000 kilograms or more of a mixture or substance containing a detectable
amount of marijuana, a Schedule I controlled substance, while on board a vessel subject to
the jurisdiction of the United States of America(Count 2). (CR Doc. 1). Petitioner pleaded
not guilty to the charges, maintained his innocence throughout, and went to trial.
At trial, Petitioner and the Government agreed that the United States Coast Guard
recovered fifty five bales of marijuana jettisoned from the Miss Tiffany. (CR Doc. 64).
Petitioner and the Government also agreed on the Chemical Analysis Report which
determined the portion of the bales tested to be 2,501 grams of marijuana. (CR Doc.
64,64a). The Chemical Analysis Report made clear that only the “plant material,” not
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packaging, was considered in the calculation of the quantity tested. (CR Doc. 64a). The
total weight (the calculation to be made by extrapolating from the portion tested) was
contested at trial and was a question of fact left for the jury.
In November 2013, the jury found Petitioner guilty on both counts, and the Court
sentenced him to 120 months’ imprisonment. Petitioner appealed, and the Eleventh Circuit
affirmed. United States v. Persaud, et al., 605 F. App’x 791 (11th Cir. 2015).
PETITIONER’S GROUNDS FOR RELIEF
Petitioner raises three grounds for relief, all based on ineffective assistance of trial
counsel. At all times, Petitioner remained adamant that he was unaware of the marijuana
on board the Miss Tiffany.
In Ground 1, Petitioner argues that his counsel was ineffective for failing to
investigate information that would have led to a more favorable plea deal. Had counsel
properly investigated the information, Petitioner argues he could have reached a plea
agreement and been sentenced to less than 120 months.
In Ground 2, Petitioner argues that his counsel was ineffective for challenging the
issue of jurisdiction and following Petitioner’s desire to go to trial. Had counsel not raised
the issue of jurisdiction and not followed Petitioner’s desire to go to trial, Petitioner
contends he would have received a more favorable sentence in the form of a negotiated
plea deal.
In Ground 3, Petitioner argues that his counsel was ineffective for failing to
investigate the quantity of the drugs. Specifically, Petitioner argues that counsel should
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have weighed the bales, taking into account that the bales were water-logged from having
been jettisoned and that four different agents attested to four different total weights of the
contraband. Had counsel investigated these issues, Petitioner asserts his sentence would
have been lower than his current sentence because he would have been granted a minor
role reduction and a two-level variance.
DISCUSSION
I. Standard of Review
Ineffective-assistance-of-counsel claims are cognizable under section 2255. Lynn v.
United States, 365 F.3d 1225, 1234 n.17 (11th Cir. 2004). In Strickland v. Washington, 466
U.S. 668 (1984), the Supreme Court set forth a two-part test for analyzing ineffectiveassistance-of-counsel claims:
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. Strickland requires proof of both deficient performance and
consequent prejudice. Id. at 697 (“[T]here 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 v. Singletary, 155 F.3d 1297, 1305 (11th Cir. 1998)
(“When applying Strickland, we are free to dispose of ineffectiveness claims on either of
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its two grounds.”). “There is a strong presumption that counsel’s performance falls within
the ‘wide range of professional assistance’[;] the defendant bears the burden of proving
that counsel's representation was unreasonable under prevailing professional norms and
that the challenged action was not sound strategy.” Kimmelman v. Morrison, 477 U.S. 365,
381, 106 S.Ct. 2574, 2586, 91 L.Ed.2d 305 (1986) (quoting Strickland, 466 U.S. at 689,104
S.Ct. at 2065). “[S]trategic choices made after thorough investigation of law and facts
relevant to plausible options are virtually unchallengeable.” Strickland, 466 U.S. at 690,
104 S.Ct. at 2066. “[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.
Thus, Petitioner must demonstrate that counsel’s error prejudiced the defense
because “[a]n error by counsel, even if professionally unreasonable, does not warrant
setting aside the judgment of a criminal proceeding if the error had no effect on the
judgment.” Id. at 691–92. To meet this burden, Petitioner 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.” Id. at 694.
II. Analysis
The Court concludes Petitioner’s Motion should be denied because he shows neither
deficient performance by counsel nor prejudice. The Court will address each of Petitioner’s
grounds below.
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In ground one, Petitioner’s argument that counsel was deficient is refuted by the
record. Petitioner asserts that counsel was ineffective because counsel failed to adequately
investigate information of the previous crewmembers of the Miss Tiffany. Petitioner states
he remembered “after being in prison and having the time to analyze what happened” that
there had been other crewmembers that left the vessel before discovery by the USCG. (CV
Doc. 1, p. 10). Petitioner did not give this information to his lawyer before trial. Counsel
cannot be expected to investigate something he knows nothing about. Therefore, ground
one fails to show deficient performance.
Ground two of Petitioner’s claim that counsel was ineffective when challenging the
United States’ jurisdiction is meritless. Petitioner argues because counsel raised the issue
of jurisdiction, he was prejudiced and unable to reach a favorable plea deal. The Court
concludes that Petitioner has not alleged any reason why the Court should conclude counsel
was deficient in arguing jurisdiction. Even if counsel were deficient, there is no logical
connection between counsel arguing jurisdiction and Petitioner being prejudiced by not
receiving a plea deal. Petitioner could not have pleaded guilty because he maintained his
innocence and denied the Government’s factual basis. (CV. Doc. 1, pp. 13, 20). There was
no deficient performance.
In ground three, Petitioner’s argument that counsel was deficient is refuted by the
record. Petitioner contends counsel failed to argue the weight of the marijuana. But the
record shows that counsel did indeed make those arguments during trial and while cross
examining witnesses. (CR. Doc. 151, 155, 157, 159). Counsel even went so far as to limit
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the number of witnesses who would testify for the Government as to the weight and
vigorously opposed the Government’s calculation of weight during his cross examination.
(CR. Doc. 155). Because this was sound trial strategy, the Court concludes that Petitioner
has failed to show counsel’s conduct was deficient.
CONCLUSION
Petitioner has failed to demonstrate that counsel was deficient or that Petitioner was
prejudiced by counsel’s allegedly deficient conduct. Therefore, the Court concludes
Petitioner’s Motion must be denied.
It is therefore ORDERED AND ADJUDGED that:
1.
Petitioner’s Amended Motion to Vacate, Set Aside, or Correct Sentence
Pursuant to 28 U.S.C. §2255 (CV Doc. 3) is DENIED.
2.
The Clerk is to enter judgment for Respondent, United States of America,
terminate any pending motions, and close this case.
3.
The Clerk is directed to terminate from pending status the amended motion
to vacate found at Doc. 185 in the underlying criminal case, case number 8:13-cr-434-T30TBM.
CERTIFICATE OF APPEALABILITY AND LEAVE TO APPEAL
IN FORMA PAUPERIS DENIED
IT IS FURTHER ORDERED that Petitioner is not entitled to a certificate of
appealability. 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). Rather, a district
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court must first issue a certificate of appealability (COA). Id. "A [COA] may issue...only
if the applicant has made a substantial showing of the denial of a constitutional right." Id.
at § 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) (quoting Slack v. McDaniel, 529
U.S. 473, 484 (2000)), or that "the issues presented were 'adequate to deserve
encouragement to proceed further.'" Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003)
(quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4 (1983)). Petitioner has not made the
requisite showing in these circumstances.
Finally, because Petitioner is not entitled to a certificate of appealability, he is not
entitled to appeal in forma pauperis.
DONE AND ORDERED at Tampa, Florida on this 4th day of August, 2017.
Copies furnished to:
Counsel/Parties of Record
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