MARTIN v. USA

Filing 31

ORDER on Motion to Vacate, Set Aside or Correct Sentence (2255) - For the reasons stated herein Petitioner Donald J. Martin's motion pursuant to 25 U.S.C. § 2255 is DENIED. The Court will enter judgment accordingly and a copy of this Order will be docketed in Cause No. 1:08-cr-00124-LJM-TAB-1. Pursuant to Federal Rule of Appellate Procedure 22(b), rule 11(a) of the Rules Governing § 2255 proceedings, and 28 U.S.C. § 2253(c), the Court finds that the Petitioner has failed to show that reasonable jurists would find "it debatable whether the petition states a valid claim of denial of a constitutional right." Slack v. McDaniel, 529 U.S. 473, 484 (2000). The Court therefore DENIES a certificate of appealability. Signed by Judge Larry J. McKinney on 9/14/2017. (Copy mailed to Pltf via First Class U.S. Mail.)(REO) Modified on 9/15/2017 (REO).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
DONALD J. MARTIN,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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No. 1:15-cv-00692-LJM-DML

ORDER
Petitioner Donald J. Martin (“Petitioner” or “Martin”) has moved for correction of his
sentence pursuant to 28 U.S.C. § 2255 based on ineffective assistance of counsel and
the Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015). For
the reasons stated herein, the Court DENIES the Motion.
I. BACKGROUND
Pursuant to a plea agreement pursuant to Federal Rule of Civil Procedure
11(c)(1)(C), Petitioner pled guilty to one count of possession with intent to distribute 28
grams or more of a mixture containing cocaine base (crack cocaine), in violation of 21
U.S.C. §§ 841(a)(1) and 851 (a)(1); and one count of carrying a firearm during and in
relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i). See United
States of America v. Martin, 1:08-cr-00124-LJM-TAB-01, Dkt. No. 156 (“Criminal Dkt. No.
156”). Prior to Petitioner’s plea hearing, the United States (the “Government”) filed an
information pursuant to 21 U.S.C. § 851(a)(1), alleging that Petitioner had a prior felony
drug conviction. Criminal Dkt. No. 24. The plea agreement provided that, in the event
that Petitioner was sentenced to a total of 270 months imprisonment, Petitioner “expressly

waive[d] his right to appeal the conviction and any sentence imposed in this case on any
and all grounds, . . . [and] expressly agree[d] not to contest, or seek to modify, his
conviction or sentence or the manner in which it was determined in any type of
proceeding, including, but not limited to, an action brought under 18 U.S.C. § 3582 or 28
U.S.C. § 2255.” Criminal Dkt. No. 72.
Petitioner moved for and was granted a mental competency examination as well
as a second opinion regarding same.

Criminal Dkt. Nos. 94, 013, 114, 123, 124.

Petitioner was deemed competent. Criminal Dkt. No. 124.
Petitioner was sentenced to an aggregate sentence of 270 months of
imprisonment. Criminal Dkt. No. 156.
In his Petitioner, Martin asserts that his counsel was ineffective at sentencing
because counsel allowed Martin to be sentenced when he was incompetent. Specifically,
the report contained inconsistent information, which was never raised by counsel. Dkt.
No. 1 at 4. In his supplemental petition, Martin challenges his sentence under the
Johnson case, which rendered the residual clause of the Armed Career Criminal Act
unconstitutional, and was made retroactive by Welch v. United States, 136 S. Ct. 1257
(2016). Dkt. No. 22.
II. DISCUSSION
A. INEFFECTIVE ASSISTANCE OF COUNSEL
Petitioner’s motion with respect to ineffective assistance of counsel must be
denied. First, Martin waived his right to see post-conviction relief when he made his plea.
If the “plea was voluntary, the waiver of appeal [or post-conviction collateral relief] must
be enforced.” Nunez v. United States, 546 F.3d 450, 453 (7th Cir. 2008). The Court

concluded at the hearing that Petitioner’s plea was entered into knowingly and voluntarily.
He has presented nothing new in his Petition or other papers to undermine that
conclusion.
Second, although waiver can be overcome in certain circumstances, Petitioner has
failed to evidence that he is entitled to relief under the high bar set by the ineffective
assistance of counsel standard. Under the Sixth Amendment to the U.S. Constitution, an
accused has a right to “reasonably effective assistance” of counsel.

Strickland v.

Washington, 466 U.S. 668, 687 (1984). The right to effective assistance of counsel is
denied when the performance of counsel falls below an objective standard of reasonable
professional conduct and thereby prejudices the defense. See Yaborough v. Gentry, 540
U.S. 1, 5 (2003) (citing Strickland, 466 U.S. at 668-94). For Petitioner to establish that
his “counsel’s assistance was so defective as to require reversal” of a conviction or
sentence, he must make two showings: (1) deficient performance that (2) prejudiced his
defense. Strickland, 466 U.S. at 687.
With respect to the first element of the Strickland test, “The proper measure of
attorney performance remains simply reasonableness under prevailing professional
norms.” Wiggins v. Smith, 539 U.S. 510, 521 (2003) (quoting Strickland, 466 U.S. at 688).
“Judicial scrutiny of counsel’s performance must be highly deferential.” Strickland, 466
U.S. at 689. The performance of counsel is evaluated from counsel’s perspective at that
time, making every effort to “eliminate the distorting effects of hindsight.” Wiggins, 539
U.S. at 523 (quoting Strickland, 466 U.S. at 688). See also Kokoraleis v. Gilmore, 131
F.3d 692, 696 (7th Cir. 1997). Because there is a strong presumption that counsel’s
representation is effective, “[t]he question is whether an attorney’s representation

amounted to incompetence under prevailing professional norms, not whether it deviated
from best practices or most common custom.” Harrington v. Richter, 562 U.S. 86, 88
(2011).
Here, Petitioner merely argues that his counsel should have argued that the
inconsistencies in the psychologist’s evaluations rendered him incompetent to enter into
a plea. This is not enough to show that counsel’s performance fell below the prevailing
professional norm.

In fact, counsel raised Petitioner’s long-standing psychological

problems at the hearing, and, having assessed the reports and the Court’s ruling thereon,
concluded that Martin had voluntarily and knowingly entered into the plea. Sentencing
Tr. at 4. And, the Court also acknowledged Petitioner’s issues in its discussion of the §
3553(a) factors, noting that considerable time and effort had been put in to determine
Petitioner’s mental competency, and that multiple doctors had concluded that Martin was
competent. Id. at 8-9. Moreover, the Court stated that, in its experience, Petitioner’s
struggle to accept responsibility was not unusual. Id. Petitioner’s mental health issues
were competently raised by counsel and addressed by the Court at sentencing.
Further, Petitioner presents no argument or evidence that he was prejudiced in
any way by the manner in which counsel raised his mental health issues. As previously
discussed, counsel mentioned the competency evaluations and his own conclusion that
Petitioner entered into the plea agreement knowingly and voluntarily. The Court also
pointed out the multiple competency evaluations and the findings therein, which all
pointed to a conclusion that Martin was competent to enter into a plea agreement. In
addition, Petitioner presents no evidence that the sentence that he received would have

been any better had he gone to trial. For these reasons, Petitioner cannot show that his
circumstances pass the second prong of the Strickland test.
B. RELIEF IS UNAVALABLE UNDER JOHNSON
Petitioner also asserts that he is entitled to relief under Johnson because his prior
conviction for robbery is not considered a “crime of violence” and he is not a career
offender within the meaning of the U.S. Sentencing Commission Guidelines § 4B1.1. Dkt.
No. 22. However, in Beckles v. United States, 137 S. Ct. 886 (2017), the U.S. Supreme
Court concluded that the Sentencing Guidelines are not subject to vagueness challenges
under the Due Process Clause. In other words, the holding in Johnson does not apply to
cases, like the Petitioners, that challenge a guideline calculation. Therefore, Petitioner’s
motion on this ground is also without merit.
III. CONCLUSION
For the reasons stated herein Petitioner Donald J. Martin’s motion pursuant to 25
U.S.C. § 2255 is DENIED. The Court will enter judgment accordingly and a copy of this
Order will be docketed in Cause No. 1:08-cr-00124-LJM-TAB-01.
IV. DENIAL OF CERTIFICATE OF APPEALABILITY
Pursuant to Federal Rule of Appellate Procedure 22(b), rule 11(a) of the Rules
Governing § 2255 proceedings, and 28 U.S.C. § 2253(c), the Court finds that the
Petitioner has failed to show that reasonable jurists would find “it debatable whether the
petition states a valid claim of denial of a constitutional right.” Slack v. McDaniel, 529
U.S. 473, 484 (2000). The Court therefore DENIES a certificate of appealability.
IT IS SO ORDERED this 14th day of September, 2017.

Distribution attached.

________________________________
LARRY J. McKINNEY, JUDGE
United States District Court
Southern District of Indiana

Distribution:
DONALD J. MARTIN
08948-028
GREENVILLE - FCI
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Inmate Mail/Parcels
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Barry D. Glickman
UNITED STATES ATTORNEY'S OFFICE
[e-mail]
James Robert Wood
UNITED STATES ATTORNEY'S OFFICE
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