Walker v. United States of America

Filing 57

ORDER dismissing as moot 55 Motion for Leave to File; denying 55 Motion for Oral Argument. Petitioner is directed to brief the issue of whether his appellate counsel was ineffective for failing to argue on appeal that the sentence Petitioner received was substantively unreasonable in light of the sentencing factors found in 18 USC 3553(a).. Signed by Judge William T. Moore, Jr. on 10/31/2011. (lmm)

U.S. PISTRMT COPT

IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF GEORGIA 2011 OCT 31 PM 4 : 40
AUGUSTA DIVISION

CHARLES W. WALKER, SR.,

}

Petitioner,
V.

CASE NO. CV109-036

UNITED STATES OF AMERICA,
Respondent.
O RD ER

This case has been remanded from the Eleventh Circuit
Court of Appeals. (Doc. 53.) In its opinion, the Eleventh
Circuit concluded that this Court's prior order denying
Petitioner habeas relief (Doc. 33) must be vacated and the
case remanded because "the court failed to consider whether
[appellate] counsel was ineffective for not arguing whether
the factors supported the upward variance and whether the
sentence substantively was unreasonable" (Doc. 53 at 4).
This Court, however, is not currently in a position to
assess the merits of Petitioner's claim, as construed by
the Eleventh Circuit. A searching review of the record in
this case reveals that it is devoid of any actual argument
regarding why Petitioner's sentence is substantively
unreasonable.' Indeed, Petitioner always argued before this
1 Petitioner practically admits as much in his Motion for
Leave to File Supplemental Brief, reasoning that
supplemental briefing on this issue is required because

Court that the sentence was procedurally unreasonable in
light of the sentencing judge's failure to even address the
sentencing factors in 18 U.S.C. § 3553(a).

(Doc. 1 at 19

("The sentence that I received is unreasonable. The
District Court Judge did not engage in the analysis
required by 18 U.S.C. 3553 and imposed a sentence that was
actually above my guideline range."); Doc. 8 ¶ 14.F
("Defense counsel failed to argue, at sentencing or on
appeal, that the trial judge failed to comply with recent
Supreme Court decisions governing the procedure for
imposing sentence . . . because he failed to consider the
factors set forth in 18 U.S.C. § 3553(a), and, on appeal,
failed to argue that the resulting sentence was
'unreasonable.' "); Doc. 18 at 12 ("Here, counsel failed to
object at sentencing to the court's omission of any
reference to the Section 3553(a) factors and, on appeal,
failed to argue that the sentence was unreasonable.").)
These are, of course, arguments pertaining to why the
sentence was procedurally, not substantively, unreasonable.
At no time did Petitioner advance to this Court any
argument regarding the substantive unreasonableness of the

"counsel's ineffectiveness in failing to challenge the
substantive unreasonableness of the sentence [was]
addressed only in a cursory fashion." (Doc. 55 ¶ 10.) In
this Court's opinion, Petitioner, with the assistance of
counsel, failed to address this claim in any fashion,
cursory or otherwise.

sentence. Quite simply, Petitioner never provided this
Court with any reasoning as to how the sentencing judge
misapplied the sentencing factors in § 3553(a) 2 At no time
did Petitioner, in any filing before this Court, even
mention one of the individual sentencing factors, much less
argue that the sentence imposed was, in any way,
substantively unreasonable in light of any specific factor.
Surprisingly, the Eleventh Circuit has construed
Petitioner's filings as raising this claim, with
appropriate supporting arguments, and returned the Petition
to this Court with directions to assess whether
Petitioner's appellate counsel was ineffective for failing
to

challenge

the

substantive

unreasonableness

of

Petitioner's sentence. As previously noted, however, a
thorough review of the record in this case reveals that it
is completely devoid of any argument relating to this
claim. As a result, the Court will require Petitioner to

2

Any argument that a sentencing judge's procedural failure
to apply the sentencing factors would preclude Petitioner
from arguing how the sentence was unreasonable in light of
those factors would be without merit. The factors are
clearly listed in 18 U.S.C. § 3553(a), allowing Petitioner
to evaluate how any sentence would have been unreasonable
in light of those factors. Therefore, this Court would not
be persuaded by any argument advanced by Petitioner that
the sentencing judge's procedural failure to apply the
sentencing factors rendered him unable to assess the
substantive application of the factors to the sentence he
received.
3

provide this Court with some actual argument in support of
this claim.
Accordingly, Petitioner is DIRECTED to brief the issue
of whether his appellate counsel was ineffective for
failing to argue on appeal that the sentence Petitioner
received was substantively unreasonable in light of the
sentencing factors found in 18 U.S.C. § 3553(a).
Petitioner shall have thirty days from the date of this
order to submit his brief, and Respondent shall have
fourteen days to respond. The parties are NOTIFIED that
the only issue to be addressed is Petitioner's claim of
ineffective counsel on appeal based on counsel's failure to
argue that the sentence Petitioner received was an
unreasonable application of the sentencing factors—the
Court will not accept any arguments pertaining to other
claims for relief.
As a result of this Court's order, Petitioner's Motion
for Leave to File Supplemental Brief (Doc. 55) is DISMISSED
AS MOOT. To the extent Petitioner is seeking to provide
this Court with additional briefing concerning the "honest
services" violation under 18 U.S.C. § 1346, that portion of
the motion is DENIED . 3 Finally, Petitioner's request for

Petitioner previously sought permission from the Eleventh
Circuit to file a successive habeas petition in light of
the Supreme Court's ruling in Skilling v. United States,
561 U. S.
,
130 S.
Ct.
2896
(2010).
Emergency
4

oral argument is also DENIED.

Following review of the

parties' briefs, the Court will schedule oral arguments
should it determine them necessary.
, sr
day of October 2011.
SO ORDERED this

WILLIAM T. MOORE, J
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

Application for Leave to File Successive Motion to Vacate
Sentence, In re Walker, No. 10-13755 (11th Cir. Aug. 12,
2010) . In denying the request, the Eleventh Circuit
determined that Petitioner's "claim fails because the
Supreme Court has not made either of these direct appeal
cases retroactive to cases on collateral review."
In re
Walker, No. 10-13755, at 2 (11th Cir. Sept. 3, 2010)
Therefore, this Court sees no need for additional briefing
because the Eleventh Circuit has already determined that
the Supreme Court's ruling in Skilling would not apply
retroactively to Petitioner's collateral attack on his
conviction and sentence.