Gladney v. United States of America
Filing
18
ORDER denying 1 Motion to Vacate, Set Aside or Correct Sentence (2255); granting 12 Motion to Dismiss. Case terminated on 12/23/2014. (Signed by Judge Vanessa D Gilmore) Parties notified.(bthomas, 4) (Main Document 18 replaced on 12/23/2014) (bthomas, 4).
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
RVINELL HARLAN and
EDWARD JORODGE GLADNEY,
GREGORY HARLAN
Movant,
Plaintiffs,
vs.
vs.
UNITED STATES OF AMERICA,
THE STANDARD FIRE INSURANCE
COMPANY, et al.
Respondent.
Defendants.
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Civil Action No. 4:14-cv-0583
ORDER
Pending before the Court is Petitioner Edward Jorodge Gladney’s (“Gladney” or
“Petitioner”) Motion to Vacate, Set Aside or Correct Federal Sentence or Conviction Pursuant to
28 U.S.C. § 2255 (the “Motion to Vacate”) (Instrument No. 1). Also before the Court is
Respondent United States of America’s (the “Government”) Motion for Summary Judgment
Pursuant to Movant’s Plea Agreement Waiver; Alternatively, Motion to Dismiss § 2255 Motion
(Instrument No. 12).
I.
A.
In February 9, 2009, an anonymous tip was made to Crime Stoppers, advising them of an
adult male associated with the screen names “bootydime88” and “bootyobsession2009” and the
email “bootyobsession2009@yahoo.com” who had been abusing children around eight or nine
years old and had pictures depicting sexually explicit conduct between the individual and
children. (Instrument No. 12 at 4). The video from the cyber tip depicted the forcible sexual
assault of what appeared to be a 7- to 10-year-old boy by two adults. (Instrument No. 12 at 4-5).
A subpoena sent to Yahoo was tracked to an IP address, which was tracked by HPD using AT&T
to a Dewey Gladney in Houston, Texas. Dewey Gladney is Petitioner’s father. (Instrument No.
12 at 4). A search warrant for the most current address of Dewey Gladney was signed by District
Judge Ruben Guerrero of the 174th District Court for Harris County. (Instrument No. 12 at 5).
The search warrant was executed on June 16, 2010, and officers discovered 18 photos
under Edward Gladney’s bed which met the federal definition of “child pornography,” including
one depicting a nude black male between 6 and 10 years old engaged in sex with another male.
(Id.). During the execution of the warrant, Gladney made a statement to the agent and admitted
that the described photos depicted a child between 6 and 10 years old and that the photos were
taken in his car. (Id.). After the government put on a press conference to identify the children in
the videos and photographs, a witness named Steven Baker came forward and verified that the
photographs depicted a child named DMG, who is the stepson of Petitioner’s sister. (Instrument
No. 12 at 6). Upon interview, DMG stated that Petitioner had sexually assaulted him from the
time he was nine years old until he was 17 and that Petitioner documented the acts in
photographs and videos. (Instrument No. 12 at 7). In other evidence seized in the warrant
execution, agents found child pornography images created by Petitioner rather than downloaded
from the internet, and evidence that Petitioner was selling $15 CDs containing videos of
Gladney, DMG, and three other children engaging in oral and anal sex through Petitioner’s
Yahoo email account. (Id.). Upon interview, the children who appeared in these videos stated
that Gladney had paid them in cash and marijuana to appear in the videos and photographs since
May 2010 and that the events took place at a Motel 6 near the Astrodome, in Petitioner’s car
2
behind a water treatment plan, and in various hotels. (Id.). The four involved children were
identified as DMG, DG (DMG’s brother), JJ (DMG’s brother), and DB. (Instrument No. 12 at 58).
Beginning in June 7, 2002 and lasting through June 15, 2010, Petitioner sexually
assaulted at least four known children, recorded these abuses through electronic media, and
advertised and attempted to sell these images and photos in the present jurisdiction.
B.
On October 27, 2010, Petitioner was charged in the Houston Division of the Southern
District of Texas with sexual exploitation of four minors by production of child pornography:
DMG (Count 1); DG (Count 2); JJ (Count 3); and DB (Count 4), in violation of 18 U.S.C.
§2251. (Instrument No. 12 at 2). Petitioner was also charged with distribution of child
pornography in violation of 18 U.S.C. §§2252A(a)(2)(B) and 2252A(b)(1) (Count 5); advertising
child pornography in violation of 18 U.S.C. §§2251(d)(1)(A) and 2251(e) (Count 6); possession
of child pornography in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and 2252A(b)(2) (Count 7).
(Id.). The indictment also included a notice of forfeiture of a Dell laptop computer, two SD
cards, a USB thumb drive, an internal memory stick, and assorted CD/DVDs. (Instrument No. 12
at 3).
At this rearraignment hearing on March 5, 2012, Gladney pled guilty to Counts 1, 2, 3, 4,
and 6 of the indictment and entered into a written plea agreement with the government. (Id.).
Gladney advised the Court under oath that he had reviewed the terms of the plea agreement with
his counsel before the proceeding and that he had conferred with his counsel and did not need
more time to do so. (Instrument No. 12 at 9-10). Gladney also advised the Court under oath that
3
he understood that the maximum possible penalties for the offenses in Counts 1, 2, 3, 4, and 6
was 15 to 30 years in prison, and that he understood he was waiving his right to contest or
“collaterally attack” the conviction or sentence, and that he was waiving the right to appeal his
sentence and the manner in which it was determined. (Id.). Gladney testified that he had read and
understood the plea agreement and willingly signed it. (Id.). The Court accepted Gladney’s guilty
plea, finding that Gladney voluntarily and knowingly entered it, and adjudged him guilty of the
offenses charged in Counts 1, 2, 3, 4, and 6 of the indictment. (Id.).
At the sentencing hearing on March 9, 2012, Gladney’s counsel objected to a two-level
upward adjustment of Gladney’s offense level under §2G2.1(b)(5), applied because Gladney was
related to one of the victims. (Instrument No. 12 at 12-13). Counsel asserted that victim JJ was
not an actual relative of Gladney because JJ was only Gladney’s sister’s step-son. (Id.).
However, this Court overruled the objection, stating that “the guidelines contemplate that a child
that has been turned over [to be under the defendant’s care, custody, or control]. . . would be
included as someone for whom this enhancement would apply.” (Id.). The Court also noted that
the application of the contested enhancement would make no difference with respect to the
adjusted offense level in Gladney’s case because the offense level only including the other
children would be 46. (Id.). Counsel also requested that the Court consider Gladney’s own
victimization as a child, his new medications, and the medical evaluations of Dr. Sloan and Dr.
Bailey, who suggested therapies such as chemical castration, group therapy, medication, and the
continued monitoring by a court for the rest of Gladney’s life. (Instrument No. 12 at 13-14). This
Court sentenced Gladney to 360 months as to Count 1 and 2, to run consecutively, and 360
months as to Counts 3 and 4, to run concurrently with Counts 1 and 2 for a total term of 720
4
months in custody, to be followed by a supervised release term of life on all counts to run
concurrently. (Instrument No. 12 at 14).
Gladney filed a timely notice of appeal, alleging that the waiver was invalid because
Gladney “was not sufficiently advised of the breadth and effect of the waiver.” (Instrument No.
14-15). On October 21, 2012, the Court of Appeals for the Fifth Circuit dismissed Gladney’s
appeal as frivolous based on a finding of valid waiver in this case. (Id.).
C.
On March 10, 2014, Gladney filed the instant Motion to Vacate, Set Aside or Correct
Sentence. (Instrument No. 1). Petitioner alleges six claims of ineffective assistance of counsel
and two facial challenges to Court’s application of U.S.S.G. §2G2.1(b)(5) and §2G2.1.
(Instrument No. 2 at 5-23). Petitioner claims his counsel was ineffective for (1) failing to move
for recusal of Judge Gilmore as a children’s book author, (2) wrongly facilitating and advising
acceptance of an unknowing and involuntary plea, (3) failing to realize that Petitioner’s
psychological and childhood trauma made Petitioner unable to enter a knowing and voluntary
plea and failing to seek follow-up psychosexual evaluation to present to the Court, (4) failing to
object to the Court’s imposition of consecutive sentences at sentencing, (5) failing to offer
mitigating psychological expert testimony to the Court, (6) failing to challenge the wrongful
imposition of the aggravating enhancement of USSG §4B1.5(b)(1). (Id.). Petitioner also raises
facial challenges to the court’s application of U.S.S.G. §2G2.1(b)(5) because he is the step-uncle
by marriage to one of the victims and should not have been deemed a “relative”, and §2G2.1
because his sentence constitutes cruel and unusual punishment in violation of the Eighth
Amendment. (Id.). Petitioner requests an evidentiary hearing on his motion.
5
The Government filed a Motion for Summary Judgment Pursuant to Movant’s Plea
Agreement Waiver; Alternatively, United States’ Motion to Dismiss Movant’s § 2255 Motion
(hereinafter, “motion for summary judgment”) on August 18, 2014. (Instrument No. 12). The
Government asserts that Gladney entered the plea agreement and waiver knowingly and
voluntarily, and that the plea agreement is enforceable and precludes Gladney from bringing any
of the claims in his §2255 motion. (Id.). The Government responds that Gladney has failed to
show that his counsel was deficient or that any alleged deficiencies resulted in prejudice against
Gladney. (Id.). Additionally, the Government alleges that Gladney’s facial challenge to the
application of a sentencing guideline enhancement could have been raised on appeal and is not
cognizable in a §2255 proceeding, and that Gladney’s Eighth Amendment claim is meritless.
(Id.).
Petitioner filed a response to the Government’s motion for summary judgment on
September 9, 2014. (Instrument No. 14). Petitioner counters that because the Government has
not offered an affidavit or sworn declaration from Gladney’s counsel, there is no evidence to
overcome Gladney’s sworn declarations. (Instrument No. 14 at 5). Petitioner claims that he did
not voluntarily or knowingly enter into the plea agreement or the accompanying waivers because
his counsel refused to discuss any defense other than pleading guilty, ignored his family’s
requests for information, and failed to present Dr. Bailey’s medical report to Gladney until after
his sentencing. Petitioner then reiterates his claims of ineffective assistance of counsel and his
facial challenges against USSG §§ 4B1.5(b)(1) and 2G2.1(b)(5).
On October 9, 2014, attorney D. Craig Hughes filed a notice of appearance on behalf of
Petitioner Gladney. (Instrument No. 16).
6
II.
Petitioner has filed a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28
U.S.C. § 2255. (Instrument No. 1). Section 2255 provides in part:
“A prisoner in custody under sentence of a court established by Act of Congress
claiming the right to be released upon the ground that the sentence was imposed
in violation of the Constitution or laws of the United States, or that the court was
without jurisdiction to impose such sentence, or that the sentence was in excess of
the maximum authorized by law, or is otherwise subject to collateral attack, may
move the court which imposed the sentence to vacate, set aside or correct the
sentence.”
28 U.S.C. § 2255.
Ordinarily, “after a conviction and exhaustion or waiver of any right to appeal, [the] court
is entitled to presume that the defendant stands fairly and finally convicted.” United States v.
Willis, 273 F.3d 592, 595 (5th Cir. 2001) (citing United States v. Frady, 456 U.S. 152, 164
(1982)). Relief under this section, however, asks the district court essentially to reopen the
criminal process to a person who already has had an opportunity for full process. Kafo v. United
States, 467 F.3d 1063, 1068 (7th Cir. 2006). As a result, “relief under 28 U.S.C. § 2255 is
reserved for transgressions of constitutional rights and for a narrow range of injuries that could
not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of
justice.” United States v. Segler, 37 F.3d 1131, 1133 (5th Cir. 1994) (quoting United States v.
Vaughn, 955 F.2d 367, 368 (5th Cir. 1992) (per curiam)); see also United States v. Pierce, 959
F.2d 1297, 1301 (5th Cir. 1992). The remedy provided through collateral challenge process of
§2255 is no substitute for an appeal. United States v. Shaid, 937 F.2d 228, 231 (5th Cir. 1991).
When raising issues of jurisdictional or constitutional magnitude for the first time on
collateral review, a defendant ordinarily must show both cause for his procedural default and
actual prejudice resulting from the error. United States v. Cervantes, 132 F.3d 1106, 1009 (5th
7
Cir. 1998). “A defendant must meet this cause and actual prejudice test even when he alleges a
fundamental constitutional error.” Shaid, 937 F.2d at 232; United States v. Patten, 40 F.3d 774,
776 (5th Cir. 1995). “This cause and actual prejudice standard presents a significantly higher
hurdle than the plain error standard [applied] on direct appeal.” Pierce, 959 F.2d at 1301 (5th
Cir. 1992) (citing Frady, 456 U.S. at 166).
Cause “requires a showing of some external impediment preventing counsel from
constructing or raising the claim. For cause to exist, the external impediment, whether it be
government interference or the reasonable unavailability of the factual basis for the claim, must
have prevented petitioner from raising the claim.” McCleskey v. Zant, 499 U.S. 467, 497 (1991).
“If a petitioner fails to demonstrate cause, the court need not consider whether there is actual
prejudice.” Rodriguez v. Johnson, 104 F.3d 694, 697 (5th Cir. 1997). If the petitioner can
establish cause for the default, he must then show actual prejudice resulting from the errors of
which he complains. Shaid, 937 F.2d at 232. Establishing prejudice requires a petitioner to
demonstrate that the claimed constitutional violation “worked to his actual and substantial
disadvantage, infecting his entire trial with error of constitutional dimensions.” Frady, 456 U.S.
at 170; accord Moore v. Quarterman, 534 F.3d 454, 463 (5th Cir. 2008).
If the petitioner cannot show both cause and prejudice, the failure to raise the claim in an
earlier proceeding may nonetheless be excused if the petitioner can show that a fundamental
miscarriage of justice would result from a failure to entertain the claim. Shaid, 937 F.2d at 232;
accord Moore, 534 F.3d at 464. That said, only rarely will a case qualify “for the application of
this exception”; the Supreme Court has “emphasized repeatedly that this exception is limited to
extraordinary cases involving manifest miscarriages of justice that would result in the continued
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incarceration of one actually innocent of the offense.” Shaid, 937 F.2d at 232; accord Moore,
534 F.3d at 464.
III.
Petitioner has filed a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28
U.S.C. § 2255 alleging ineffective assistance of counsel and facially challenging the Court’s
application of USSG §§4B1.5(b)(1) and 2G2.1(b)(5).
First, however, the Court must determine whether Petitioner waived his right to
collaterally attack his conviction and sentence.
A.
As a threshold matter, in order to determine the enforceability of the waiver, the Court
must consider whether the waiver was knowing and voluntary. United States v. Wilkes, 20 F.3d
651, 653-54 (5th Cir. 1994). Petitioner alleges ineffective assistance of counsel on six grounds.
(Instrument No. 1 at 4-10, No. 2 at 6-7). The Government contends that Petitioner is not entitled
to challenge his conviction in a Section 2255 proceeding because Petitioner signed a Plea
Agreement that included a provision waiving his right to collaterally attack his sentence in a
post-conviction proceeding.1 (Instrument No. 12 at 27-30). The Government contends that the
Court should enforce the waiver and deny Petitioner’s motion, citing that
1
The Government’s assertions that the waiver of post-conviction relief should be enforced are included in its
Motion for Summary Judgment. Accordingly, the Court reviews the Government’s contention in accordance with
traditional summary judgment precepts. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Those precepts
teach that summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). A fact is material if it could
affect the outcome of the lawsuit, and a dispute about a material fact is genuine if the evidence is such that a
reasonable jury could return a verdict for the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
(1986). In reviewing all of the evidence, the Court looks at the evidence and draws all inferences therefrom in a light
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“Defendant is aware that Title 18 U.S.C. § 3742 affords a defendant the right to
appeal the sentence imposed. The defendant agrees to waive the right to appeal
the sentence imposed or the manner in which it was determined on any grounds
set forth in Title 18 U.S.C. 3742, except for a sentence above the statutory
maximum. Additionally, the defendant is aware that Title 28, I.S.C. 2255, affords
the right to contest or “collaterally attack” a conviction or sentence after the
conviction or sentence has become final. The defendant waives the right to
contest his/her conviction or sentence by means of any post-conviction
proceeding.”
(Instrument No. 12 at 15-16).
In this circuit, a defendant may waive his right to post-conviction relief pursuant to 28
U.S.C. § 2255. See United States v. White, 307 F.3d 336, 341 (5th Cir. 2002); United States v.
Hernandez, 234 F.3d 252, 254 (5th Cir. 2000). Nevertheless, an ineffective-assistance claim
survives a § 2255 waiver “when the claimed [ineffective] assistance [of counsel] directly
affected the validity of that waiver or the plea itself.” White, 307 F.3d at 343. If proven, a claim
of ineffective assistance of counsel directly affecting the validity of the waiver or the plea itself
will render the waiver involuntary. White, 307 F.3d at 339. A post-conviction review waiver will
only preclude collateral attack if: (a) the post-conviction review waiver is knowing and
voluntary; and (b) the post-conviction review waiver applies to the circumstances at hand, based
on the plain language of the agreement. See United States v. Wilkes, 20 F.3d 651, 653-54 (5th
Cir. 1994); White, 307 F.3d at 343.
In this case, it is undisputed that Petitioner pled guilty to the five counts in the indictment
pursuant to the written Plea Agreement, which also contained a provision waiving his right to
collaterally attack his sentence by means of post-conviction review. (Instrument No. 12 at 3 at
12-13; No. 2 at 1-2). Petitioner argues in grounds two and three of his motion that the waiver and
most favorable to the non-moving party. See Hibernia Nat’l Bank v. Carner, 997 F.2d 94, 97 (5th Cir. 1993). Thus,
the Court reviews all of the evidence in this case in a light most favorable to Petitioner, drawing all reasonable
factual inferences therefrom and making all credibility determinations related thereto in his favor.
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the plea are not valid. In grounds two and three, respectively, Petitioner argues that (1) Counsel
did not inform Gladney of the results of Dr. Bailey’s psychological evaluation which allegedly
contained mitigating information, and no competent counsel would advise their client to enter
into an agreement waiving virtually all post-conviction relief and review which subjected her
client to life imprisonment, and (2) Petitioner’s history of psychological and childhood trauma
made Petitioner unable to enter a knowing and voluntary plea. (Instrument No. 2 at 9-15).
For Petitioner’s claims of ineffective assistance of counsel to survive a §2255 waiver, he
must prove that his counsel’s performance was deficient and that such deficiency prejudiced the
Petitioner. See Strickland v. Washington, 466 U.S. 668 (1984). However, in this case, the Fifth
Circuit Court of Appeals has reviewed the record and dismissed the appeal, finding that both
Gladney’s plea and waiver were knowing and voluntary. (Instrument No. 12 at 17). In denying
Petitioner’s appeal, the Fifth Circuit also found no legal merit in Petitioner’s claim that his
sentence was invalid because this Court failed to give sufficient consideration to his diminished
mental capacity. (Instrument No. 12 at 27-28). Under the law of case doctrine, these issues of
fact and law decided on appeal may not be reexamined by the district court. See United States v.
Matthews, 312 F.3d 652, 657 (5th Cir. 2002). Exceptions to the law of the case doctrine allow
reexamination only if (1) the evidence on a subsequent trial was substantially different, (2)
controlling authority has since made a contrary decision of the law applicable to such issues, or
(3) the decision was clearly erroneous and would work a manifest injustice. See United States v.
Becerra, 155 F.3d 740, 752 (5th Cir. 1998). In this case, the law of the case doctrine prohibits
this Court from revisiting the voluntariness of Petitioner’s plea agreement or the reasonableness
of his sentence on any other grounds. Gladney has not shown that the decision by the Court of
Appeals was clearly erroneous and would result in manifest injustice.
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Because Petitioner’s plea and waiver were knowing and voluntary, the Court will enforce
the waiver as long as the scope of the waiver encompasses the circumstances at hand. See Wilkes,
20 F.3d at 653-54. In this case, Petitioner represented that he understood that he was waiving his
§2255 “right to contest his/her conviction or sentence by means of any post-conviction
proceeding.” (Instrument No. 12 at 15-16). The waiver provision denies Petitioner the right to
contest his sentence by means of any post-conviction proceeding. Petitioner’s Motion to Vacate,
Set Aside, or Correct Sentence is a post-conviction proceeding in which Petitioner is attempting
to challenge his sentence.
Accordingly, the waiver provision encompasses the circumstances alleged Petitioner’s
Motion to Vacate, and must be given effect. As such, the Court is precluded from further
consideration of Petitioner’s Motion to Vacate, Set Aside, or Correct Sentence. Petitioner’s
request for relief is DENIED.
B.
Although the Court has found that Petitioner’s post-conviction waiver is enforceable and
therefore precludes further review, the Court in an abundance of caution will also consider the
merits of Petitioner’s claims. In the Motion to Vacate, Petitioner claims that his sentence should
be vacated and an evidentiary hearing be granted because: (1) his counsel failed to move for
recusal of Judge Gilmore as a children’s book author, (2) his counsel wrongly facilitated and
advised acceptance of an unknowing and involuntary plea, (3) his counsel failed to realize that
Petitioner’s psychological and childhood trauma made Petitioner unable to enter a knowing and
voluntary plea and his counsel failed to seek follow-up psychosexual evaluation to present to the
Court, (4) his counsel failed to object to the Court’s imposition of consecutive sentences at
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sentencing, (5) his counsel failed to offer mitigating psychological expert testimony to the Court,
(6) his counsel failed to challenge the wrongful imposition of the aggravating enhancement of
USSG §4B1.5(b)(1). (Id.), (7) the Court improperly applied U.S.S.G. §2G2.1(b)(5) because he is
the step-uncle by marriage to one of the victims and should not have been deemed a “relative”,
(8) the Court improperly applied U.S.S.G. §2G2.1 because his sentence constitutes cruel and
unusual punishment in violation of the Eighth Amendment.
Petitioner raises six grounds of ineffective assistance of counsel in his Motion to Vacate.
(Instrument Nos. 1, 2). Under Strickland, the petitioner must prove (1) counsel’s performance
was deficient and (2) that deficiency prejudiced the petitioner. Deficient performance is
established by “show[ing] that counsel’s representation fell below an objective standard of
reasonableness.” Strickland, 466 U.S. at 688; Cavitt, 550 F.3d at 440. That determination is
based upon the law as it existed at the time of trial. Lockhart v. Fretwell, 506 U.S. 364, 371-72
(1993). When determining whether counsel was deficient, the Court “must make every effort to
eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s
challenged conduct.” Hernandez v. Johnson, 213 F.3d 243, 249 (5th Cir. 2000). Given that, the
Court indulges “a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance. . . . [In order to prevail,] the defendant must overcome the
presumption that, under the circumstances, the challenged action might be considered sound trial
strategy.” Strickland, 466 U.S. at 689; Cavitt, 550 F.3d at 440.
To prove prejudice, Petitioner “must show that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694; Cavitt, 550 F.3d at 440. “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. This is a heavy
13
burden which requires a “substantial,” and not just a “conceivable,” likelihood of a different
result. Harrington v. Richter, 131 S. Ct. 770, 787 (2011); see also Cullen v. Pinholster, 131 S.
Ct. 1388, 1403 (2011). In order for Petitioner to show that he was prejudiced by the alleged
ineffectiveness of his trial counsel with regard to his sentence, Petitioner must demonstrate a
reasonable probability that, absent counsel’s unprofessional errors, he would have received a
lesser sentence. United States v. Grammas, 376 F.3d 433, 438 (5th Cir. 2004).2
A defendant must satisfy both prongs of the Strickland test in order to prevail on an
ineffective assistance claim. Strickland, 466 U.S. at 697; Riley v. Cockrell, 339 F.3d 308, 315
(5th Cir. 2003). A court deciding an ineffective assistance of counsel claim is not required to
address these prongs in any particular order. Strickland, 466 U.S. at 697. If it is possible to
dispose of an ineffective assistance of counsel claim without addressing both prongs, “that
course should be followed.” Strickland, 466 U.S. at 697.
1.
In ground one of the Motion to Vacate, Petitioner claims that his counsel was ineffective
because she failed to move for recusal of Judge Gilmore as a children’s book author and other
extrajudicial factors. (Instrument No. 2 at 7-9). Petitioner points to Judge Gilmore’s authorship
of A Boy Named Rocky: A Coloring Book for the Children of Incarcerated Parents, a book
aimed at comforting the children of incarcerated parents, and a book about adoption motivated
by Judge Gilmore’s personal experiences. (Id.). Petitioner claims that these facts would lead a
2
Previously, the prejudice test for ineffectiveness relating to the amount of a sentence in the Fifth Circuit was
whether, but for counsel’s actions, there was a reasonable probability that defendant would have received a
“significantly less harsh” sentence. See Daniel v. Cockrell, 283 F.3d 697, 706 (5th Cir. 2002); United States v.
Franks, 230 F.3d 811, 815 (5th Cir. 2000). The Supreme Court later determined in Glover v. United States, 531 U.S.
198, 203 (2001), that “any amount of actual jail time has Sixth Amendment significance.” Thus, the Fifth Circuit
now holds that, with respect to federal prisoners, “Glover abrogates the significantly less harsh test, and that any
additional time in prison has constitutional significance.” Grammas, 376 F.3d at 438; see also Miller v. Dretke, 420
F.3d 356, 365 (5th Cir. 2005) (holding that the Grammas standard only applies in cases involving federal prisoners).
14
reasonable person to question the Court’s impartiality, and that any reasonably competent
attorney would have moved for recusal prior to recommending a course of action for Gladney.
(Id.). The Government responds that there is no evidence to suggest that the Court imposed
Gladney’s sentence on any basis other than what was learned from her participation in the case.
(Instrument No. 12 at 23-24).
28 U.S.C. §455 requires a judge to disqualify himself “in any proceeding in which his
impartiality might reasonably be questioned,” or where “he has a personal bias or prejudice
concerning a party.” 28 U.S.C. §§ 455(a), 455(b)(1). These biases and prejudices extend also to
personal and extrajudicial biases, and disqualification is appropriate if a reasonable person with
knowledge of all relevant circumstances would harbor doubts about the judge’s impartiality. See
In re Corrugated Container Antitrust Litig., 614 F.2d 958 (5th Cir. 1980). In this case, Gladney
has identified Judge Gilmore’s past activities in publishing books related to children and
adoption, and a general interest in children’s welfare, to argue that the Court’s interest in
improving the emotional well-being of a group of underprivileged children warrants her recusal
in a case involving sexual abuse of children. The rational connection between children’s welfare
and this Petitioner’s specific sexual crimes against four particular children is attenuated at best. It
would be difficult to imagine any judge who would not maintain a strong preference for
protecting children from sexual abuse and exploitation. Petitioner’s argument that Judge
Gilmore’s general support of children’s well-being is grounds for recusal on the basis of bias is
without merit.
Gladney also claims that counsel was ineffective for failure to move for recusal. Deficient
performance is established by “show[ing] that counsel’s representation fell below an objective
standard of reasonableness.” Cavitt, 550 F.3d at 440. In this case, Gladney’s counsel’s failure to
15
move for Judge Gilmore’ recusal fell “within the wide range of reasonable professional
assistance,” considering that it would have been reasonable for counsel to conclude that such a
motion to disqualify the judge would fail. Cavitt, 550 F.3d at 440. The Court finds that Petitioner
cannot meet his burden on this claim.
Therefore, ground one of Petitioner’s motion to vacate due to constitutionally ineffective
counsel fails.
2.
In ground two of the Motion to Vacate, Petitioner claims that his counsel was ineffective
because she wrongly facilitated and advised Petitioner to accept a plea which was unknowing
and involuntary. (Instrument No. 2 at 9-13).
This claim has already been discussed; the Court of Appeals has concluded that Petitioner
voluntarily and knowingly entered his guilty plea and this Court determined that Petitioner could
not demonstrate prejudice on account of counsel’s alleged deficiency. See Section III.A.
Therefore, ground two of Petitioner’s motion to vacate due to constitutionally ineffective counsel
fails.
3.
In ground three of the Motion to Vacate, Petitioner claims that his counsel was
ineffective for failing to realize that Petitioner’s psychological and childhood trauma made
Petitioner unable to enter a knowing and voluntary plea and also that his counsel failed to seek
follow-up psychosexual evaluation to present to the Court. (Instrument No. 2 at 13-15).
16
Petitioner first claims that his plea was not entered knowingly and voluntarily due to his
childhood psychological trauma and related ongoing disorders. This claim has already been
discussed; the Court of Appeals has concluded that Petitioner voluntarily and knowingly entered
his guilty plea and this Court determined that Petitioner could not demonstrate prejudice on
account of counsel’s alleged deficiency. See Section III.A.
Second, Petitioner claims that his counsel was ineffective for failing to review the Bailey
expert report and disclosing or discussing the contents of the report with Gladney before his
sentencing to present an insanity defense before the Court. (Instrument No. 2 at 13-14).
Petitioner also claims that his counsel was unresponsive to his requests to discuss any defense
other than pleading guilty, and was ineffective for failing to update his family regarding his case.
(Id.). In support, Petitioner alleges that Dr. Bailey’s report found evidence that Gladney had a
“lack of capacity to exercise control and cognitive awareness of his criminal actions,” and that
Gladney “very likely did not understand the extent of the criminality of his sexually deviant
behavior.” The Bailey report has not been entered into evidence to be considered by this Court,
and the Government does not address Petitioner’s claim that counsel was ineffective for failing
to raise an insanity defense. However, even if the Court were to accept Petitioner’s claim that the
Bailey report could have supported an insanity defense, case law in the Fifth Circuit holds that
such a failure to raise an insanity defense does not rise to the level of ineffective assistance of
counsel. See Martinez v. Dretke, 404 F.3d 878 (5th Cir. 2005) (counsel's failure to adequately
investigate petitioner’s mental health and family background, to introduce evidence of prior not
guilty verdict by reason of insanity, or to investigate and present evidence of neurological
impairment was not unreasonable performance because counsel had conducted a reasonable
investigation and had no indication that further inquiry into the client’s mental health was
17
warranted); Feldman v. Thaler, 695 F.3d 372 (5th Cir. 2012), cert. denied,133 S. Ct. 1584
(2013) (counsel did not provide deficient representation by failing to introduce mitigation
evidence of petitioner’s bipolar disorder); Mattheson v. King, 751 F.2d 1432 (5th Cir.
1985) (counsel's decision not to investigate client's mental state based on his own observation of
client was reasonable); Coble v. Quarterman, 496 F.3d 430 (5th Cir. 2007) (counsel's failure to
present an insanity or diminished capacity defense at trial was not deficient performance); Smith
v. Quarterman, 515 F.3d 392 (5th Cir. 2008) (defendant was not prejudiced by counsel's failure
to investigate evidence to support a diminished capacity defense); INEFFECTIVE ASSIST.
OF
COUNSEL §§ 8:9, 8:15. Even if Petitioner’s counsel had erred in not bringing an insanity defense
before the Court, such a failure does not rise to the level of ineffective assistance of counsel
under Strickland.
Therefore, ground three of Petitioner’s motion to vacate due to constitutionally
ineffective counsel fails.
4.
In ground four of the Motion to Vacate, Petitioner claims that his plea agreement was
involuntary and unknowing because the Court erred in failing to notify him of its intent to
impose consecutive sentences, and that his counsel was ineffective because his counsel failed to
object to the Court’s imposition of consecutive sentences at sentencing. (Instrument No. 2 at 1516). Petitioner also claims that his plea was involuntary because he did not know that his
sentences might run consecutively.
18
This claim is without merit. Petitioner had notice before sentencing that there was the
possibility that the Court would impose consecutive sentences. The Pre-Sentencing Report
explains the guidelines for imposing consecutive or concurrent sentences, in bold:
“115. Statutory Provisions: As to Counts 1 through 4, the maximum term of
imprisonment is not less than 15 years and not more than 30 years, pursuant to
18 U.S.C. §2251 (a) and (e). As to Count 6, the maximum term of imprisonment
is not less than 15 years and not more than 30 years, pursuant to 18 U.S.C.
§2251(d)(a)(A) and (e).
116. Guideline Provisions: Based on a total offense level of 43 and a criminal
history category of III, the guideline range for imprisonment is life, and is
found in Zone D of the Sentencing Table, U.S.S.G. Chapter 5, Part A. Pursuant to
U.S.S.G. §5G1.2(d), if the sentence imposed on the count carrying the highest
statutory maximum is less than the total punishment, then the sentence imposed
on one more of the other counts shall run consecutively, but only to the extent
necessary to produce a combined sentence equal to the total punishment. In all
other respects, sentences on all counts shall run concurrently, except to the extent
otherwise required by law.”
(Instrument No. 12 at 30-31). At the sentencing hearing, both counsel and Petitioner informed
the Court that they had reviewed the Pre-Sentence Report as well as three addendums to that
report. Therefore, Petitioner had notice of the Court’s ability to impose consecutive sentences
before his sentencing hearing. Additionally, Petitioner’s subjective belief that his sentences
would run concurrently does not render his plea involuntary or unknowing. See Daniel v.
Cockrell, 283 F.3d 697, 703 (5th Cir. 2002), overruled on other grounds, Glover v. United
States, 531 U.S. 198 (2001) (“a guilty plea is not rendered involuntary by the defendant’s mere
subjective understanding that he would receive a lesser sentence” and if the defendant’s
expectation “of a lesser sentence did not result from a promise or guarantee by the court, the
prosecutor or defense counsel, the guilty plea stands”).
Therefore, ground four of Petitioner’s motion to vacate due to constitutionally ineffective
counsel fails.
19
5.
In ground five of the Motion to Vacate, Petitioner claims that his counsel was ineffective
because she failed to offer mitigating psychological expert testimony of Dr. Bailey to the Court
and thus her conduct constituted abandonment of his case. (Instrument No. 2 at 17-18). However,
on the record at Gladney’s sentencing hearing, the Court noted that Gladney had been previously
diagnosed with a psychotic disorder and that the Pre-Sentence Report had adopted information
from his medical records from the federal detention center regarding that diagnoses. (Instrument
No. 12 at 32). The Court also noted on the record that it had received and read the reports of Dr.
Poole, Dr. Sloan, and Dr. Bailey that were submitted under seal. (Id.). At the hearing,
Petitioner’s counsel summarized the findings of these reports “to try to give some input to the
Court on what happened and how Edward Gladney is here today.” (Id.). Gladney claims that
counsel should have presented additional mitigating psychological expert testimony by Dr.
Bailey, but fails to allege what that testimony would have been and how it would have been
substantially to lead to a different result in this case. Accordingly, Gladney has not met his
burden to show his counsel was prejudicially deficient under Strickland.
Therefore, ground five of Petitioner’s motion to vacate due to constitutionally ineffective
counsel fails. Petitioner’s claims in ground five are appropriately addressed against his counsel in
a civil breach of contract action for the alleged failure to retain an expert witness with the
remitted fees, rather than in a motion for §2255 habeas relief.
6.
In ground six of the Motion to Vacate, Petitioner claims that his counsel was ineffective
because she failed to challenge the Court’s wrongful imposition of the aggravating “pattern”
20
enhancement of U.S.S.G. §4B1.5(b)(1). (Instrument No. 2 at 19-20). Gladney disputes the PreSentence Report statement that “[t]he defendant is deemed a Repeat and Dangerous Sex offender
Against Minors” and that “the defendant has engaged in a pattern of activity involving prohibited
sexual conduct.” (Instrument No. 12 at 34). Petitioner cites Application Note 4 of the sentencing
guidelines (Application of Subsection B), which instructs that subsection (b) may be applied only
if “the defendant committed the instant offense of conviction subsequent to sustaining at least
one sex offense conviction.” (Instrument No. 2 at 19); U.S.S.G. §4B1.5(a).
Petitioner’s challenge of the Court’s application of U.S.S.G. §4B1.5(b)(1) is directly
addressed in the Pre-Sentence Report. (Instrument No. 12 at 34). The Court adopted the findings
in the Pre-Sentence Report, which recommended §4B1.5(b)(1) to be applied as follows:
“82. Chapter Four Enhancements: The Defendant is deemed a Repeat and
Dangerous Sex Offender Against Minors within the meaning of U.S.S.G. §4B1.5,
even though he/she has no prior conviction for a sex offense, since the instant
offense of conviction is a covered sex crime, U.S.S.G. §4B1.1 (Career Offender)
does not apply and the defendant has engaged in a pattern of activity involving
prohibited sexual conduct. Therefore, the offense level is increased by five,
pursuant to U.S.S.G. §4B1.5(b)(1).”
(Id.). The facts on the record indicate that Gladney had repeatedly engaged in prohibited
sexual conduct with four known minor children and “over 20 unidentified victims” over the span
of eight years from 2002 to 2010. (Instrument No. 12 at 34-35). The sentencing guidelines define
“pattern of activity involving the sexual abuse or exploitation of a minor” as “any combination of
two or more separate instances of the sexual abuse or sexual exploitation of a minor by the
defendant, whether of not the abuse or exploitation (A) occurred during the course of the offense;
(B) involved the same minor; or (C) resulted in a conviction for such conduct. 18 U.S.C. §§
1466A, 2252, 2252A(a)-(b), 2260(b), Application Note 1.
21
In this case, the facts unequivocally demonstrate a “pattern” of prohibited sexual conduct,
regardless of whether Petitioner had a prior conviction for a sex offense. Therefore, the Court’s
imposition of the 5-level “pattern” enhancement pursuant to U.S.S.G. §4B1.5(b)(1) was not in
error.
Given the facts on the record, Gladney’s counsel’s failure to challenge the Court’s
imposition of U.S.S.G. §4B1.5(b)(1) “pattern” enhancement fell “within the wide range of
reasonable professional assistance,” because it would have been reasonable for counsel to
conclude that such a challenge to the enhancement would fail. Cavitt, 550 F.3d at 440; United
States v. Kimler, 167 F.3d 889, 892 (5th Cir. 1999) (“An attorney’s failure to raise a meritless
argument thus cannot form the basis of a successful ineffective assistance of counsel claim
because the result of the proceeding would not have been different had the attorney raised the
issue.” In light of the facts on the record, the Court finds that Petitioner cannot meet his burden
on this claim.
Therefore, ground six of Petitioner’s motion to vacate due to constitutionally ineffective
counsel fails.
7.
In ground seven of the Motion to Vacate, Petitioner claims that the Court improperly
applied U.S.S.G. §2G2.1(b)(5) because he is the step-uncle by marriage to one of the victims and
should not have been deemed a “relative”. (Instrument No. 2 at 20-21). However, such a familial
determination is not required under the law. U.S.S.G. §2G2.1(b)(5) plainly states that the 2-level
enhancement is to apply to a defendant “if the defendant was a parent, relative, or legal guardian
22
of the minor involved in the offense, or if the minor was otherwise in the custody, care, or
supervisory control of the defendant.” U.S.S.G. §2G2.1(b)(5). In this case, the Court applied the
enhancement because the minors were found to have been in Petitioner’s custody, care or
supervisory control. Accordingly, the Court did not improperly apply the enhancement.
Gladney facially challenges the enhancement because the Court allegedly applied it
without basis or legal foundation. (Instrument No. 2 at 21). However, Petitioner’s motion does
not make any additional factual allegations that he was not the legal guardian of the minor
children, or that the children were not in Petitioner’s custody, care, or supervisory control. See
U.S.S.G. §2G2.1(b)(5). Therefore, ground seven of Petitioner’s motion to vacate due to
constitutionally ineffective counsel fails.
8.
In ground eight of the Motion to Vacate, Petitioner claims that the Court improperly
applied U.S.S.G. §2G2.1 because his sentence constitutes cruel and unusual punishment in
violation of the Eighth Amendment. (Instrument No. 2 at 21-23). Petitioner cites an unpublished
2009 paper by an assistant federal public defender in the Western District of Missouri to claim
that U.S.S.G. §§2G2.1 and 2 violate the Eight Amendment prohibition against cruel and unusual
punishment. Troy Stabenow, Deconstructing the Myth of Careful Study: A Primer on the Flawed
Progression of the Child Pornography Guidelines 38 (January 1, 2009) (unpublished
manuscript).3 Petitioner also cites United States v. Polizzi, a case from the Eastern District of
3
The relevant cited portion reads: “[s]ince 1991, the punishment for [child pornography] offenses has
been dramatically and irrationally increased, to the point where today rapists, murderers, and molesters
receive lesser sentences than would a man who swaps a few, thirty-year old, pictures of child
pornography that were produced before the defendant was even born. Recent changes to the sentencing
system, and an increased familiarity with the underlying presumptions of § 2G2.2 should persuade and
23
New York discussing criticisms against the Sentencing Commission and its data and expertise,
which has been vacated and remanded in the Second Circuit. See United States v. Polizzi, 549 F.
Supp. 2d 308 (E.D.N.Y. 2008) vacated and remanded sub nom. United States v. Polouizzi, 564
F.3d 142 (2d Cir. 2009). Petitioner claims that sentencing guidelines against child pornographers
are unduly harsh and therefore violate the Eighth Amendment. However, even the paper cited by
Petitioner draws the distinction between “repeat offenders” and other defendants. In this case,
Petitioner has exhibited a “pattern of prohibited sexual conduct.” See Section III.B.6. Lastly,
neither of the cited sources present any legally binding directive in the present jurisdiction.
Petitioner presents no other factual or legal basis for why his sentence constitutes cruel and
unusual punishment.
Therefore, ground eight of Petitioner’s motion to vacate due to constitutionally
ineffective counsel fails.
Accordingly, Petitioner’s request for relief is DENIED.
A §2255 motion requires an evidentiary hearing unless the files, motion, and record of
the case conclusively show that no real is appropriate. 28 U.S.C. §2255; Rule 8(a); see United
States v. Santora, 711 F.2d 41 (5th Cir. 1983). The need for an evidentiary hearing depends on
an assessment of the record. If the record is adequate to fairly dispose of the allegations, the
Court need inquire no further. United States v. Smith, 915 F.2d 959, 964 (5th Cir. 1990). In this
case, the record is adequate to fairly dispose of Petitioner’s allegations of ineffective assistance
of counsel and his facial challenges to the sentencing guidelines. Therefore, Petitioner’s request
for an evidentiary hearing is DENIED.
embolden the courts to conclude that unless a defendant was a repeat offender, or a mass distributor, the
Guidelines yield a sentence ‘greater than necessary’ to achieve §3553(a)’s purposes.”
24
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