MORRIS v. UNITED STATES OF AMERICA

Filing 7

OPINION. Signed by Judge Stanley R. Chesler on 8/5/13. (DD, )

NOT FOR PUBLiCATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
KIM S. MORRIS,

Civ. No. 13-0241 (SRC)

Petitioner.
OPINION
UNITED STATES oF AMERICA
Respondents.
APPEARACES:
KIM S. MORRIS, 162487-050
FCI Danbury
33 Pembroke Road
Danbury.CT 06811
Movant Pro Se
THOMAS J. EICHER. Assistant U.S. Atto
rney
U.S. ATTORNEY FOR DISTRICT OF NEW JER
SEY
420 E. State Street
Trenton, New Jersey 08608-1 507
Attorney for Respondent
CHESLER, District Judge:
On January 9. 2013. Kim S. Morris. a federal
prisoner incarcerated at FCI Danbury in
Connecticut, filed a motion to vacate this Court’s
juduent entered on January 25. 2012. in Unit
ed
States v. Morris, Crim, No, 11-0610 (SRC) judg
ment (D,N,J. Jan. 23. 2012). Morris asserts
that
her attorney was constitutionally ineffective durin
g plea negotiations. Although this Court did
not order the United States to answer or respond
to the § 2255 motion, on July 16,2013, the United
States filed a Memorandum of La in Support
of the Motion of the lJnltLd States to Dicmiss

Petitioner’s Motion under 28 U.S.C.

2255

forth below, this Court will deny the

2255 motion and deny a certificate of appealability.

(Mem, of Law, ECF No. 6.) For the reasons set

Respondent’s motion to dismiss will be granted.
1.

BACKGROUND

On September 15, 2011, Morris pled guilty to bank
fraud. in violation of 1 S U.S.C.

§ 1344

and 2. and structuring transactions to evade repo
rting requirements, in violation of3i U.S.C.
5324(a)(3), 5325(a)(2) and 18 U.S.C. 2. See
United States v. Moms, Crim. No. 11-0610 (SRC
)
plea agreement at ECF 18 (D.N.J. Sept. 15, 2011
). On January 23, 2012. this Court imposed an
aggregate 33-month term of imprisonment and three
years of supervised release. Morris did not
appeal.
On January 9,2013, Morris tiled the

§ 2255 motion presently before this Court. The

motion raises one ground for relief: Ineffectiv
e Assistance of Counsel. (Motion, ECF No. I at
4.) She asserts the following supporting facts:
Counsel was not present during several proffer
meetings, as requested. Could not
reach her except a few minutes before sentencin
g. At the deadline to submit my
signed plea agreement. she was unreachable, and
not returning calls, and I was
unsure if she had submitted anything in my beha
lf. I took it upon myself to fax the
plea agreement to the AUSA. after numerous emai
ls also that were not answered, in
order to make the deadline.
(Motion, ECE No. I at 4.) Morris asks this Cou
rt to grant “[ajn adjusted sentence, to reflect hom
e
confinement beginning April 2013. instead of
April 2014.” (ECF No. 1 at 9.)
Morris filed a memorandum of law with her Mot
ion.

In the memorandum, \ioITi

concedes that this Court “considcr[ed] all 3553
(a) factors” and that she “was sentenced fairly
and
reasonably by the Court, and that is not the issue
today being raised.” iMem.. ECF No. 1-1 at I.)
See 28 U.S.C.

§ 2255 Rule 5(a) (“The respondent is not required to

judge so orders.”)

answer

the motion unless a

Relying on La/icr v. Cooper, 132 S.Ct. 1376 (2012), and
Missouri v. Frye, 132 S.Ct. 1399 (2012).
she argues that “lack of attorney’s due diligence during
the proffer and pica negotiation sessions
warrants a departure to corre[c]t the taint.” Id.. ECF
No. i-i at 2. She maintains that “[tjhere

was a deadline
calls.

.

to

submit the plea aeement, and the attorney was unre
achable and not returning

and the attorney was not available for all of [the proffer
sessionsj as requested.” fd.

Finally, she insists that she ‘is not requesting that the sente
nce he vacated, just adjusted to
compensate [Ion the Sixth Amendment violation under
LaJier-Fiye.” (id., ECF No. I-i at 3-4.)
By Order entered January 22, 2013, this Court advised Mor
ris of her rights under United
States v. Miller, 197 F. 3d 644 (3d Cir. 1999). (Ord
er. ECF No. 2.) By letter dated January 27.
2013, Morris asked this Court to consider her motion as
presented. (Letter, ECF No. 3,)
Although this Court did not order the government to respo
nd to the motion, on July 16, 2013. the
United States tiled a Memorandum of Law in Support of
the Motion to Dismiss Petitioner’s
Motion under 28 U.S.C.

§ 2255, arguing that the motion should be denied because Morris

knowingly waived her right to file a

§ 2255 motion and because she failed to assert facts showing

that defense counsel was constitutionally ineffective. (Mem
., ECF No. 6.)
II. DISCUSSION
A.

Ineffective Assistance of Counsel
Moms maintains that her attorney was constitutionally
ineffective during plea

because “[c}ounsel was not present during several proff
er meetings. as requested.”

negotiations

MOITiS

“FcouId

not reach her [attorney,] except a few minutes before
sentencing,” and counsel did not “return[J
calls.” (Motion, ECF No. 1 at 4.) The Sixth Amendm
ent guarantees the accused the “right.. to
.

have the Assistance of Counsel for his defense.” LS.
Const. amend, VI. The right to counsel is

the right to the effective assistance of counsel. and coun
sel can deprive a defendant of the rigit by
failing to render adequate legal assistance. See Strickland v,
Washington, 466 U.S. 668, 686
(1984). A claim that counsel’s assistance was so defe
ctive as to require reversal of a conviction
has two components. both of which must be satisfied.
Id. at 687.

First, the defendant must

“show that counsel’s representation fell below an obje
ctive standard of reasonableness.’ Id. at
687-88. Second, “defendant must show that there
is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceedin
g would have been different.” Id. at
694 (citations omitted).
in Hill v, Lockhart, 474 U.S. 52 (1985), the Supreme
Court held that Strickland v.
Washington applied to challenges based on ineffectiv
e assistance of counsel where the defendant

pled guilty. Id., 474 U.S. at 58. “Where, as here, a defe
ndant is represented by counsel during
the plea process. the voluntariness of the plea depe
nds on whether counsel’s advice ‘was within
the range of competence demanded of attorneys in crim
inal cases.” 1(1., 474 U.S. at 56 (quoting
McMann v. Richardson, 397 U.S. 759, 771(1970)).
To satisfy the “prejudice” requirement, “the
defendant must show that there is a reasonable prob
ability that, but for counsel’s errors. [s}he
would not have pleaded guilty and would have insis
ted on going to trial.” Hill, 474 U.S. at 59.
In that case, the Supreme Court explained that Hill’s
allegations were insufficient to satisfy the
prejudice requirement because Hill
.

did not allege in his habeas petition that. had counsel
correctly informed him about
his parole eligibility date. he would have pleaded not guilt
y and insisted on going to
trial
indeed, petitioner’s mistaken belief that he would beco
me eligible for
parole after serving one-third of his sentence would
seem to have affected not on!
his calculation of the time he likely would serve if sente
nced pursuant to the
proposed plea agreement. but also his calculation
of the time he likely would serve
if he went to trial and were convicted.
.

.

4

Hill. 474 U.S. at 60.
Morris points to La/icr v. Cooper, 132 S,Ct. 1376 (201
2), and Missouri

i’.

Erie, 132 S.Ct.

1399 (2012), in support of her motion. In La/Icr, the
Court aflinried an order granting a writ of
habeas corpus under § 2254 to Anthony Cooper on his
Sixth Amendment claim that he reted a
plea offer with a recommended sentence of 51 to 85 mon
ths. In that case, Cooper took the plea
on the basis of deficient advice of counsel and. after
a full and fair trial, he was fuund guilty and
received a sentence harsher than that offered in the rejec
ted plea bargain, i.e.. a mandatory
minimum sentence of 185 to 360 months in prison.
The state conceded that counsel’s advice
that the prosecution would be unable to establish inten
t to murder because the victim had been shot
below the waist was constitutionally deficient perfo
rmance. The Supreme Court ruled that the
Sixth Circuit had properly found that the state court’s decis
ion was contrary to the following
clearly established test for prejudice under Strickland
and Hill in the context of a rejected plea
bargain:
—

--

Having to stand trial, not choosing to waive it, is the
prejudice alleged. In these
circumstances a defendant must show that hut for the
ineffective advice of counsel
there is a reasonable probability that the plea offer
would have been presented to
the court (i.e.. that the defendant would have acce
pted the plea and the prosecution
would not have withdrawn it in light of intervening circu
mstances). that the court
would have accepted its terms, and that the convictio
n or sentence, or both, under
the offer’s terms would have been less severe than unde
r the judgment and sentence
that in fact were imposed.
La/icr. 132 S.Ct. at 1385.

In Mssourz v. &ve, 132 S.Ct, 1399. the Missouri
appellate court ruled that defense
counsel’s failure to communicate a plea offer was
deficient performance under Strickland. and that
this deficient performance caused prejudice because
Frye pleaded guilty to a felony with a

maximum sentence of thur years. instead of the one
year maximum sentence for a misdemeanor

offered in the plea that counsel did not communicate to
him. The Supreme Court aeed that
defense counsel was constitutionally deficient in failin
g “to communicate formal offers from the
prosecution to accept a plea on terms and conditions
that may he favorable to the accused.” Fiye
at 1408. The Court held that “[ijn order to complete
a showing of Strickland prejudice,
defbndants who have shown a reasonable probability
they would have accepted the earlier plea
offer must also show that. if the prosecution had the discr
etion to cancel it or if the trial court had
the discretion to refse to accept it, there is a reasonabl
e probability neither the prosecution nor the
trial court would have prevented the offer from bein
g accepted or implemented.” Id. at 1410.
In this case. Morris does not assert that she would have
declined the plea agreement and
would have insisted on going to trial, but for counsel’s
deficient performance in missing several
proffer meetings and failing to return phone calls. Mor
ris concedes that she “was sentenced fairly
and reasonably by the Court. and that is not the issue toda
y being raised.” (Motion. ECF No. 1-I at
1.) Morris does not want to vacate her plea and stand
trial on the original charges; she wants
“[ajn adjusted sentence, to reflect home continernent
beginning April 2013. instead of April
2014,” (Motion, ECF No. I at 9.) Because Morris
does not assert that she would have insisted
on going to trial but for counsel’s allegedly deficient perfo
rmance, she has failed to assert
prejudice under the standard articulated by Hill and
2
Strickland. See Preino v. Moore, 131 S.Ct.
733. 744 (201 1) (“Thus, the question in the present
case is not whether Moore was sure beyond a
reasonable doubt that he would still he convicted if
the extra confession were suppressed. It is
whether Moore established the reasonable probability
that he would not have entered his plea but
To the extent that Morris contends that counsel was
constitutionally ineffective in failing to
move for a downward departure based on the healt
h of her mother and daughter, this claim is
barred by the plea agreement. See Plea Agreement,
Crim. No, 11-0610 (SRC), ECF No. 18, p. 9
(“The parties agree not to seek or argue fir any upw
ard or downward departure, adjustment or
variance not set forth herein.”)
6

for his counsel’s deficiency.”) This Court denies the

2255 motion without an evidentiarv

3
hearing, as the Motion and records in the underlyin
g criminal case show conclusively that Morris
is not entitled to relief on her ineffective assistance
of counsel claims.
B. iticefealability
The AEDPA provides that an appeal may not he taken
to the court of appeals from a final
order in a

§ 2255 proceeding unless a judge issues a

of appealability on the ground that

“the applicant has made a substantial showing of the deni
al of a constitutional right.” 28 (J.S.C.
2253(c)(2). This Court denies a certificate of appealabi
lity because jurists of reason would not
find it debatable that dismissal of the one ground raise
d in the motion is correct,

§

This Court need not reach Respondent’s waiver argu
ment because it concludes that Morris is not
entitled to relief on the merits.
compare cedeno v. United States, 455 Fed. App 241,
’x
245-246 (3d Cir. 2011) (“Cedeno has
not established a reasonable probability that, had
he known that the conspiracy charge was
susceptible to a double jeopardy challenge, he would
not have pleaded guilty to one of the three
remaining charges and would have insisted on going
to trial, Consequently, the errors made by
defense counsel, if any, were not prejudicial”); United
States i. Peppers, 273 Fed. App’x 155, 159
(3d Cir. 2008) (counsel was not constitutionally ineff
ective in plea process where Peppers “has
made no contention that he would not have entered
his plea and would have insisted on going to
trial if his counsel had advised him that the [Armed
Career Criminals ActJ arguably may not have
applied ‘), Pond i Meyers 214 Fed App x 197 200
(3d Cir 2007) (denying 2254 petitioner s
claim that plea counsel was constitutionally ineffectiv
e in failing to advise him that his back-time
sentence could not be served concurrently with
his instant sentence for failure to establish
prejudice where petitioner does not assert that he
would have insisted on going to trial had he
known that it was legally impossible for his back-tim
e sentence to be served concurrently); United
Stat c Kautjman 1fl9 F d 186 191 (d Cir l99
) (holding that defendant alleging Inetfectie
assistance in guilty plea context needs to present evid
ence ‘sufflcient to undermine our confidence
that [the attorney] would have advised his client to plead
guilty rather than proceed to trial and that
[the defendant] would have accepted that advice”) with
Jam/son i. K/em. 544 F. 3d 266 (3d Cir.
2008) (concluding that state court decision rejecting
Jamison’s challenge to validity of his guilty
plea based on counsel’s failure to advise him that
his guilty plea subjected him to a five-year
mandatory minimum sentence was an unreasonable
application of Bovkin i’ Alabama. 395 U.S.
238 (1969). which requires that an accused be awar
e of the direct consequences of a guilty plea,
where Jami son testified that he would not have enter
ed a guilty plea if he had known that he would
have to serve at least five years in prison).
7
-

III. CONCIJJSION

Based on the foregoing, the Court denies the
appealability, Respondent’s

motion to

§ 2255 motion and denies a certificate of

dismiss is granted.

STANLEY R. CHESLER, US.DJ.
DATED: c.2o13

8