Bennett vs. USA

Filing 2

REPORT AND RECOMMENDATIONS denying re 1 Motion to Vacate/Set Aside/Correct Sentence (2255) filed by Marcus Bennett. Petitioner's in forma pauperis status on appeal should likewise be denied. Objections to R&R due by 10/9/2013. Signed by Magistrate Judge G. R. Smith on 9/25/2013. (loh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
STATE SBORO DIVISION
MARCUS BENNETT,

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Movant,

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V.

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UNITED STATES OF AMERICA,

Case No. CV613-083
CR604-016

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Respondent.

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REPORT AND RECOMMENDATION
Marcus Bennett has filed a 28 U.S.C. § 2255 motion which, upon
preliminary review under 28 U.S.C. § 2255 Rule 4(b), the Court
determines to be time-barred. In 2004 he pled guilty to and received a
171 month sentence for robbing a bank and using a firearm during the
commission of a robbery, in violation of 18 U.S.C. § 2113(a), (d) and 18
U.S.C. § 924(c). Doc. 63; doe. 70 at 2-3. He appealed and has filed
nothing further since the Eleventh Circuit affirmed his conviction in
2005. Doe. 70; United States v. Bennett, 143 F. App'x 200 (11th Cir.
2005), cert. denied, Bennett v. United States, 546 U.S. 1128 (2006).

Eight years later, Bennett seeks § 2255 relief, insisting that his
sentence was imposed in violation of the Fifth Amendment. Doe. 107 at
4. The sentencing judge, he maintains, found by a preponderance of the
evidence that he brandished a firearm during the bank robbery and thus
sentenced him accordingly. Id. But since that time, he contends, "the
authority authorizing such an act" has been overruled by Alleyne v.

United States, - U.S. , 133 S. Ct. 2151 (2013). Doe. 107 at 4.
Arguing that he received a punishment the district judge was not
authorized to impose, he claims that he is entitled to be resentenced. Id.
Bennett then builds two more claims from that one. The Alleyne
relief under Ground One, he reasons, somehow rendered his guilty plea
not knowing and intelligent. Id. at 5 (Ground Two). Finally, in Ground
Three, he raises an ineffective assistance of counsel (IAC) claim against
his lawyer for failing to object to sentencing on count two (i.e., using a
firearm to commit the underlying bank robbery).' Id. at 7. This violated

1

For ineffective assistance of counsel to provide a basis for federal habeas relief,
movant must satisfy the two-part test from Strickland v. Washington, 466 U.S. 668,
687 (1984). First, he must show that his counsel's performance was deficient and that
it prejudiced his defense. Id. To show prejudice, movant need only demonstrate a
reasonable probability that the result of the proceeding would have been different
absent the error. Id. at 694. A reasonable probability in this context is "a probability
sufficient to undermine confidence in the outcome." Id. Bennett thus must establish
both deficient performance and prejudice in order to establish ineffective assistance

the double jeopardy clause, he concludes. Id. He wants his plea vacated
for a new trial, and if it is not then his sentence on "Count Two" should
be reduced to five years. Id. at 12.
At the time of Bennett's sentencing, either the judge or the jury
could decide whether a defendant's conduct met the requirements for a
mandatory minimum sentence. Harris v. United States, 536 U.S. 545
(2002). Alleyne overrules Harris and holds that a judge cannot make this
decision unless the defendant waives his entitlement to a jury, or admits
facts that require a minimum sentence. Alleyne, 133 S.0 t. at 2163-64.
Construing his pro se pleadings liberally, see doc. 107 at 11, Bennett
argues that Alleyne entitles him to pursue this collateral attack despite
28 U.S.C. § 2255(f)'s 1-year limitations period because Alleyne qualifies
as a new right retroactively applicable within the meaning of § 2255(1)(3)
("the date on which the right asserted was initially recognized by the
Supreme Court, if that right has been newly recognized by the Supreme
Court and made retroactively applicable to cases on collateral review.
.',).

of counsel. Id. at 687. "Surmounting Strickland 's high bar is never an easy task."

Padilla v. Kentucky, 559 U.S. 356, 371 (2010).
3

A new rule of constitutional law, needed to render Bennett's §2255
motion timely under § 2255(f)(3), must be retroactive to cases on
collateral review. See Dodd v. United States, 545 U.S. 353 1 358 (2005).
Bennett simply declares that Alleyne is. Doc. 107 at 4 ("Said decision is
retroactive, as it represents substantive decision."). Of course, that
declaration is meaningless. And in fact, the Supreme Court did not
declare that the new rule in Alleyne is retroactive on collateral review,
nor is it likely to do so. See Simpson v. United States, 721 F. 3d 875, 876
(7th Cir. 2013) (the new constitutional rule announced in Alleyne had not
been made retroactively applicable on collateral review, and Alleyne is an
extension of Apprendi, which itself is not retroactive); accord, In re

Payne,

F.3d -, 2013 WL 5200425 at * 1-2 (10th Cir. Sept. 17, 2013).

Grounds One and Two therefore fail. Parker v. United States, 2013
WL 4442038 at *2 n. 3 (W.D.N.C. Aug. 16, 2013). Bennett implicitly
acknowledges that Ground Three (his JAC claim) is time-barred -- he
mentions "fundamental miscarriage of justice" in conjunction with it.
Doc. 107 at 11. Merely mentioning a legal doctrine, however, is not
enough. Rather, Bennett must show how it applies, and he does not. So,
Ground Three is abandoned. Newsome v. Danforth, 2013 WL 3047780 at

* 2 (S.D. Ga. June 17, 2013) (citing Fils v. City of Aventura, 647 F.3d
1272 ) 1284 (11th Cir. 2011) ("district courts cannot concoct or resurrect
arguments neither made nor advanced by parties.")).
Additional, reinforcing grounds support the result here: Bennett's
waiver. As noted by the Eleventh Circuit, "the plea agreement signed by
Bennett and his counsel specifically stated that Bennett 'waive[d] any
right to have a jury resolve and decide sentencing issues, including
possible enhancements to his sentence, [and] expressly confer[red] upon
the court the right to decide any and all sentencing issues by a
preponderance of the evidence standard.' Bennett [did] not contend that
his waiver was uninformed or involuntary. Therefore, Bennett waived
[the] Sixth Amendment rights" and Fifth Amendment rights he seeks to
raise here. Bennett, 143 F. App'x at 201.
Unsurprisingly, Bennett simply ignores this in his § 2255 motion,
except to reason that Alleyne alone can undo everything, including his
waiver. He apparently believes that, merely because the law has since
changed in his favor, his choice to plead guilty and waive any jury trial
right "somehow" has become "involuntary and unknowing." Were that
the law, there would be no guilty plea option because there would be no

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finality -- an indispensable bargaining chip for the prosecution. Suffice it
to say that Bennett has failed to show that his lawyer was in any way
deficient.
Accordingly, Marcus Bennett's § 2255 motion (doc. 107) must be
DENIED. Applying the Certificate of Appealability (COA) standards set
forth in Brown v. United States, 2009 WL 307872 at * 1-2 (S.D. Ga. Feb.
9, 2009), the Court discerns no COA-worthy issues at this stage of the
litigation, so no COA should issue. 28 U.S.C. § 2253(c)(1); see Alexander

v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000) (approving sua sponte
denial of COA before movant filed a notice of appeal). And, as there are
no non-frivolous issues to raise on appeal, an appeal would not be taken
in good faith. Thus, in forma pauperis status on appeal should likewise
be DENIED. 28 U.S.C. § 1915(a)(3).

SO REPORTED AND RECOMMENDED this

2S

day of

September, 2013.

122 _

UNITEDSTATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

on