Green v. United States of America

Filing 7

REPORT AND RECOMMENDATIONS denying 1 Motion to Vacate/Set Aside/Correct Sentence (2255) filed by Timecka Green. Objections to R&R due by 3/17/2017. Signed by Magistrate Judge G. R. Smith on 3/3/17. (jlm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
TIMECKA GREEN,
Movant,

CV417-001
CR415-204

v.
UNITED STATES OF AMERICA,
Respondent.

REPORT AND RECOMMENDATION
Indicted on multiple counts of drug-trafficking charges, Timecka
Green twice rejected the Government’s offered plea agreements and
proceeded to trial, where she was convicted on all counts. Docs. 1
(indictment), 109 (jury verdict), 148-1 (Green’s signed acknowledgement
she elected to proceed to trial). 1 She now seeks to vacate her sentence
under theories of ineffective assistance of counsel, prosecutorial
misconduct, and an invalid indictment. Docs. 138 & 139. The
Government opposes. Doc. 148.

I. BACKGROUND
Green was indicted and tried for her role in a crack cocaine

1

The Court is citing to the criminal docket in CR415-204 unless otherwise noted,
and all page numbers are those imprinted by the Court’s docketing software.

manufacture and distribution conspiracy. Docs. 1 & 109. Among other
witnesses and other evidence, Green’s minor daughter, T.G., made
(multiple inconsistent) statements to officers, testified against her
before the grand jury, testified against her at trial, and testified for her
at the sentencing hearing.

See docs. 146 (trial transcript) at 73-96 &

147 (sentencing hearing transcript) at 29-47. The Court denied Green’s
motion for a new trial, overruled counsel’s objections to the Presentence
Investigative Report (PSR), and sentenced her to 121 months’
imprisonment. Docs. 114 & 121; doc. 147. Green elected not to appeal
her conviction or sentence. Doc. 126 (signed Post-Conviction
Consultation Certification) & 129 (judgment).

II. ANALYSIS
Green presents three grounds for relief: (1) the indictment was
invalid because it failed to stipulate an exact amount of cocaine base
attributable to Green; (2) the Government engaged in prosecutorial
misconduct; and (3) counsel deficiently failed to (a) adequately advise
Green on the consequences of proceeding to trial, (b) fully investigate
her case, (c) object to sentencing enhancements, and (d) file a direct
appeal. Doc. 138.
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A. Indictment & Misconduct
Green’s challenges to the sufficiency of the indictment and alleged
prosecutorial misconduct are procedurally defaulted because she did not
raise them on direct appeal.

Lynn v. United States, 365 F.3d 1225,

1234 (11th Cir. 2004) (a movant may not use her collateral attack as “a
surrogate for a direct appeal.”). She has also not shown cause and
prejudice sufficient to defeat this procedural bar.

See United States v.

Montano, 398 F.3d 1276, 1280 (11th Cir. 2005) (to excuse the procedural
bar, a § 2255 movant must “demonstrate a cause for [her] default and
show actual prejudice suffered as a result of the alleged error.”).
Green nominally pleads ineffective assistance of counsel (IAC) to
overcome her failure to appeal: “The petitioner asked counsel to appeal,
where he did in all honesty state that he believed that appealing was not
in her best interest, and chose not to appeal. But, once a defendant asks
for an appeal to be filed, it is her right to have a notice put into the
court.” Doc. 138 at 5. A failure to consult with a defendant regarding an
appeal, or otherwise abide her wish to appeal, can constitute IAC.

See

Roe v. Flores-Ortega , 528 U.S. 470, 480 (2000). But movant expressly
told her lawyer, in writing, not to file an appeal after she was fully
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informed of her appellate rights.

See doc. 126 (“Notice of Post-

Conviction Consultation”) at 2.2 Green ignores this inconvenient fact in
declaring, under penalty of perjury, the contrary. Doc. 138 at 13 (“I
declare (or certify, verify, or state) under penalty of perjury that the
foregoing is true and correct. . . .”). 3 Her bare assertion to the contrary
now cannot overcome what she swore to be true shortly after sentencing.
See, e.g. , Eason v. United States , 2014 WL 4384652 at * 3 (S.D. Ga. Sept.
3, 2014). And with nothing to excuse her failure to appeal, Green’s

2

The Notice is a document this Court developed to memorialize counsel's
consultation with his client and reflect the client's appeal decision. See Guyton v.
United States , 2013 WL 1808761 at * 2 (S.D. Ga. Apr. 29, 2013) (the “Notice of
Counsel’s Post-Conviction Obligations” requires that both counsel and client execute
and file the form, thus preserving a record of defendant's instructions regarding an
appeal). Interestingly, Green initially initialed beside the option electing to appeal.
However, she crossed it out (and initialed to confirm it was her intention to do so)
and wrote that “I accidently initial[e]d the wrong line above so I crossed through it
and then initial[e]d the line below. I do not wish to appeal.” Doc. 126 at 2. This
unambiguous explanation confirms that Green knowingly and voluntarily -- after
counsel fully explained “the consequences of failing [to appeal]” to her -- declined to
appeal her conviction or sentence.
3

Lying under oath, either live or “on paper,” is a criminally prosecutable offense .
See United States v. Roberts , 308 F.3d 1147, 1155 (11th Cir. 2002) (defendant’s falsely
subscribing to statement in his habeas petition that he had not previously filed a
§ 2255 motion was "material" for purposes of perjury prosecution; statement fooled
the clerk of the court into accepting the "writ" for filing, and led the magistrate judge
to consider its merits until she discovered that the "writ" was a successive § 2255
motion in disguise); United States v. Dickerson , CR608-36, doc. 1 (S.D. Ga. Dec. 11,
2008) (§ 2255 movant indicted for perjury for knowingly lying in his motion seeking
collateral relief from his conviction); id ., doc. 47 (guilty verdict), cited in Irick v.
United States , 2009 WL 2992562 at * 2 (S.D. Ga. Sept. 17, 2009); see also Colony Ins.
Co. v. 9400 Abercorn, LLC , 866 F. Supp. 2d 1376, 1378 n. 2 (S.D. Ga. 2012).
4

claims are procedurally defaulted. See United States v. Nyhuis , 211 F.3d
1340, 1344 (11th Cir. 2000).
Regardless, Green’s claim that the indictment’s failure to specify a
drug amount specifically attributable to her is without merit: there is no
constitutional requirement for an indictment to set forth an exact time,
location, drug amount, or purchaser of illegal drugs.

See United States

v. Steele, 178 F.3d 1230, 1234 (11th Cir. 1999). All that is required of
an indictment is that it “present the essential elements of the offense,
notify the accused as to the charges, and enable the accused to rely
upon a judgment as a bar against double jeopardy.”

United States v.

Breal, 593 F. App’x 949, 952 (11th Cir. 2014). Here, the indictment
identified a specific time period (March through November 2015),
location (Liberty County, within the Southern District of Georgia),
conspirators (Larron Bruce, Gregory Harrington, Willie Nelson Bruce,
and Timecka Green), Schedule II controlled substance (cocaine base),
and actions (conspiring to possess, manufacture, and possession with
intent to distribute cocaine base in violation of 21 U.S.C. § 841 et seq.).
This information was more than sufficient to inform Green of the charge
against her. See Breal, 593 F. App’x at 952; Steele, 178 F.3d at 12335

34; United States v. Stefan , 784 F.2d 1093, 1101-02 (11th Cir. 1986).
Movant’s conclusory accusation of prosecutorial misconduct is also
meritless. Green argues -- without any citation to the record or a hint
as to how it actually prejudiced her case -- that the Government
engaged in misconduct by interviewing T.G. without parental consent or
the presence of a parent/guardian. Docs. 138 at 9 & 139 at 4. Green
apparently believes that T.G.’s inconsistent statements and “checkered
past” should have been brought to the Court’s attention -- which they
were, throughout both trial and sentencing, when T.G. testified and was
cross-examined, see doc. 146 (trial transcript) at 73-96; doc. 147
(sentencing hearing transcript) at 29-47 -- though it is unclear
specifically what she thinks should have been done or how it should
have affected her trial and/or sentencing.

See docs. 138 & 139. And

this Court has no obligation to address conclusory allegations not
developed and factually supported by petitioner.

See Chavez v. Sec’y

Fla. Dep’t of Corr. , 647 F.3d 1057, 1061 (11th Cir. 2011) (“allegations
must be factual and specific, not conclusory.”); Bartley v. United States,
2013 WL 6234694 at * 2-3 (S.D. Ga. Dec. 2, 2013) (a § 2255 movant
“must not just raise, but argue his claims.”).
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B. Ineffective Assistance of Counsel
Green contends her counsel performed deficiently in several
material respects, by failing to (1) adequately advise her on the
consequences of proceeding to trial, (2) fully investigate her case,
(3) object to sentencing enhancements, and (4) file a direct appeal.
Docs. 138 & 139. These claims fail.
“To prevail on a claim of ineffective assistance of counsel, a
prisoner must prove that his counsel rendered deficient performance
and that he was prejudiced by the deficient performance.”

Castillo v.

United States, 816 F.3d 1300, 1303 (11th Cir. 2016) (citing Strickland v.
Washington, 466 U.S. 668, 687 (1984)). In evaluating adequacy of
performance, “counsel 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. “For

performance to be deficient, it must be established that, in light of all
the circumstances, counsel’s performance was outside the wide range of
professional competence.” Putman v. Head, 268 F.3d 1223, 1243 (11th
Cir. 2001).
As to the prejudice prong, the prisoner must show “that there is a
ii

reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.”

Strickland, 466

U.S. at 694; Matire v. Wainwright, 811 F.2d 1430, 1434 (11th Cir. 1987)
(same); see also Butcher v. United States, 368 F.3d 1290, 1293 (11th
Cir. 2004) (“[A]ttorney errors come in an infinite variety and are as
likely to be utterly harmless in a particular case as they are to be
prejudicial. That the errors had some conceivable effect on the outcome
of the proceeding is insufficient to show prejudice.”).
As discussed above, Green’s allegation that counsel failed/refused
to file a direct appeal against her wishes is patently contradicted by the
record.

See doc. 126 (movant’s signed Post-Conviction Consultation

Certificate declining to appeal after being advised by counsel on the
consequences of so doing). The same goes for Green’s contention that
counsel failed to fully apprise her on the consequences of proceeding to
trial.

See doc. 148-1 (movant’s signed affirmation that her counsel

“reviewed [with her] the two plea offers that were extended by the
United States. I have rejected the offers and wish to proceed to trial. I
know the potential consequences of proceeding to trial; and I freely and
voluntarily express my desire to proceed to trial. I am satisfied with

[.J

[my attorney], and have no complaints about him.”); Missouri v. Frye,
132 S. Ct. 1399, 1409 (2012) (to demonstrate Strickland-level prejudice,
movant must first “demonstrate a reasonable probability [she] would
have accepted the . . . plea offer had [she] been afforded effective
assistance of counsel.”); Ervin v. United States, 2017 WL 465471 at *3
(S.D. Ga. Feb. 1, 2017) (movant’s “disingenuous contention, that but for
counsel’s ‘misadvice’ he would have pleaded guilty, is hogwash;” movant
rejected the plea agreement because he “thought he could do better” and
the fact that he “gambled and lost, in the face of overwhelming evidence
of his guilt, does not render his counsel’s performance deficient.”).
Her argument that counsel failed to object to sentencing
enhancements, too, is contrary to the record -- counsel in fact lodged
objections to the PSR and argued at length at sentencing.

See PSR,

Addendum & doc. 147 (sentencing hearing transcript) at 4-53. That the
Court disagreed and overruled those objections does not render
counsel’s performance deficient. See Jones v. Barnes, 463 U.S. 745, 751
(1983) (there is no “constitutional right to compel appointed counsel to
press nonfrivolous points”).
Finally, Green’s argument that counsel failed to fully investigate
RI

her case, including locating and interviewing witnesses that could have
testified to her “turbulent” relationship with her daughter, T.G., is
without merit. Doc. 139 at 1. “[C]ounsel has a duty to make reasonable
investigations or to make a reasonable decision that makes particular
investigations unnecessary.”

Strickland, 466 U.S. at 690-91 (emphasis

added). To be effective, counsel is not required to “pursue every path
until it bears fruit or until all hope withers.”

Williams v. Head, 185

F.3d 1223, 1237 (11th Cir. 1999); see also Rogers v. Zant, 13 F.3d 384,
387 (11th Cir. 1994) (the requirement to “investigate” a case “reflects
the reality that lawyers do not enjoy the benefit of endless time, energy,
or financial resources.”). And, “a court should be highly deferential to
those choices . . . that are arguably dictated by a reasonable trial
strategy.” Devier v. Zant, 3 F.3d 1445, 1450 (11th Cir.1993).
The Court, however, does not need to speculate on counsel’s
apparently adequate trial strategy in this case: even Green, conclusorily
lobbing accusations of deficiency at counsel’s approach, doesn’t know
how he could have done better. Movant does not specify which
witnesses counsel should have located, or what testimony relevant to
trial or sentencing they might have produced.
10

See doc. 139 at 1; see

doc. 146 (trial transcript) at 73-93 (direct examination of T.G.) & 94-96
(cross -examination of T.G.); doc. 147 (sentencing hearing transcript) at
39-43 (cross -examination of T.G.). Nor does she identify what prejudice,
if any, she suffered as a result of counsel’s failure to dig up witnesses
who would have further impeached her daughter’s noted inconsistencies
on the witness stand. She simply states that he should have, and could
have, done better in some way. Again conclusory allegations support
no § 2255 relief. 4

C. CONCLUSION
Accordingly, Timecka Green’s § 2255 motion should be DENIED . 5

4

“Laundry list” claims of deficient representation -- offered without explaining,
with full citation to the record, how they were viable and that no reasonable lawyer
would have missed them -- do not an IAC claim make. A typical IAC claim succeeds
only where counsel has, metaphorically speaking, shot at the side of a barn yet
missed. See Sullivan v. Secretary, Fla. Dep’t. of Corr. , 837 F.3d 1195, 1205 (11th Cir.
2016) (an attorney’s ignorance of a point of law that is fundamental to his case
combined with his failure to perform basic research on that point is a quintessential
example of unreasonable performance, as element of ineffective assistance of
counsel); see also id. at 1206 (in prosecution for fleeing and attempting to elude a law
enforcement officer, trial counsel was ineffective in presenting a voluntary
intoxication defense long after it had been statutorily abolished, instead of advising
defendant to accept state’s pretrial plea offer).
5

Because her motion is entirely without merit and his contentions are
unambiguously contradicted by the record, Green’s request for an evidentiary
hearing (doc. 138 at 13) is DENIED . Winthrop-Redin v. United States , 767 F.3d
1210, 1216 (11th Cir. 2014) (a hearing is unnecessary “if the allegations are ‘patently
frivolous,’ ‘based upon unsupported generalizations,’ or ‘affirmatively contradicted
by the record.’”); Holmes v. United States , 876 F.2d 1545, 1553 (11th Cir. 1989)
(same); Lynn , 365 F.3d at 1239 (where the motion “amount[ed] to nothing more than
11

For the reasons set forth above, it is plain that she raises no substantial
claim of deprivation of a constitutional right. Accordingly, no certificate
of appealability should issue. 28 U.S.C. § 2253; Fed. R. App. P. 22(b);
Rule 11(a) of the Rules Governing Habeas Corpus Cases Under 28
U.S.C. § 2255 (“The district court must issue or deny a certificate of
appealability when it enters a final order adverse to the applicant.”).
Any motion for leave to appeal in forma pauperis therefore is moot.
This Report and Recommendation (R&R) is submitted to the
district judge assigned to this action, pursuant to 28 U.S.C.
§ 636(b)(1)(B) and this Court’s Local Rule 72.3. Within 14 days of
service, any party may file written objections to this R&R with the
Court and serve a copy on all parties. The document should be
captioned “Objections to Magistrate Judge’s Report and
Recommendations.” Any request for additional time to file objections
should be filed with the Clerk for consideration by the assigned district
judge.
After the objections period has ended, the Clerk shall submit this

mere conclusory allegations, the district court was not required to hold an
evidentiary hearing on the issues and correctly denied [movant]’s § 2255 motion.”).
12

R&R together with any objections to the assigned district judge. The
district judge will review the magistrate judge’s findings and
recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are
advised that failure to timely file objections will result in the waiver of
rights on appeal. 11th Cir. R. 3-1; see Symonett v. V.A. Leasing Corp. ,
648 F. App’x 787, 790 (11th Cir. 2016); Mitchell v. U.S. , 612 F. App’x
542, 545 (11th Cir. 2015).

SO REPORTED AND RECOMMENDED, this 3rd day of
March, 2017.

UNITED STATES MAGISTRATE .ffJD&E
SOUTHERN DISTRICT OF GEORGIA

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