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Drone v. United States

United States District Court, S.D. Ohio, Eastern Division

January 8, 2018

LEO DONALD DRONE, JR., Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          GEORGE C. SMITH JUDGE

          REPORT AND RECOMMENDATION

          CHELSEY M. VASCURA UNITED STATES MAGISTRATE JUDGE

         Petitioner, a federal prisoner, brings this Motion to Vacate under 28 U.S.C. § 2255. For the reasons that follow, the Magistrate Judge RECOMMENDS that all of Petitioner's claims, with the exception of his claim that he was denied the effective assistance of counsel based on his attorney's failure to file an appeal after being requested to do so, be DISMISSED.

         The Magistrate Judge further RECOMMENDS that counsel be appointed to represent Petitioner at an evidentiary hearing on his claim that he was denied the effective assistance of counsel based on his attorney's failure to file an appeal.

         I. Facts and Procedural History

         On January 13, 2016, Petitioner pleaded guilty pursuant to the terms of his negotiated Plea Agreement, to charges of conspiracy to distribute and to possess with intent to distribute heroin, in violation of 21 U.S.C. § 846 and § 841(b)(1)(B)(i). (ECF No. 55.) On April 28, 2016, the District Court imposed a sentence of 90 months of imprisonment, to be followed by four years of supervised release, and ordered the forfeiture of the property set forth in Forfeiture Count A, Exhibits 1 and 2 of the Indictment. (ECF No. 87.) Petitioner did not file an appeal.

         On April 3, 2017, Petitioner filed this Motion to Vacate under 28 U.S.C. § 2255. He claims that he was denied the effective assistance of counsel during plea negotiations because his attorney failed to investigate, failed to advise him of the likely consequences of a guilty plea as opposed to proceeding to trial, and failed to attempt to negotiate more favorable terms in the Plea Agreement. Petitioner asserts that he was denied the effective assistance of counsel at sentencing, because his attorney failed to review with him or explain the PreSentence Investigation Report and failed to file objections to the PreSentence Investigation Report. Finally, Petitioner asserts that he was denied the effective assistance of counsel when his attorney failed to file a notice of appeal after Petitioner requested that he do so. Respondent argues that all of Petitioner's claims lack merit.

         II. Standard of Review

         In order to obtain relief under 28 U.S.C. § 2255, a petitioner must establish the denial of a substantive right or defect in the trial that is inconsistent with the rudimentary demands of fair procedure. United States v. Timmreck, 441 U.S. 780, 783 (1979); United States v. Ferguson, 918 F.2d 627, 630 (6th Cir. 1990) (per curiam). Relief under 28 U.S.C. § 2255 is available when a federal sentence was imposed in violation of the Constitution or laws of the United States or when the trial court lacked jurisdiction, when the sentence was in excess of the maximum sentence allowed by law, or when the judgment or conviction is “otherwise subject to collateral attack.” United States v. Jalili, 925 F.2d 889, 893 (6th Cir. 1991). In the absence of constitutional error, the question is “whether the claimed error was a ‘fundamental defect which inherently results in a complete miscarriage of justice.'” Davis v. United States, 417 U.S. 333, 346 (1974) (quoting Hill v. United States, 368 U.S. 424, 428-429 (1962)); see also Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2006). However, “‘[a] § 2255 motion may not be used to relitigate an issue that was raised on appeal absent highly exception circumstances.'” DuPont v. United States, 76 F.3d 108, 110 (6th Cir. 1996)(quoting United States v. Brown, No. 94-5917, 1995 WL 465802 (6th Cir. 1995)). Further, non-constitutional claims not raised at trial or on direct appeal are waived on collateral review except where the errors amount to something akin to a denial of due process. Accordingly, claims that could have been raised on direct appeal, but were not, will not be entertained on a motion under § 2255 unless the petitioner shows (1) cause and actual prejudice sufficient to excuse his failure to raise the claims previously or (2) that he is “actually innocent” of the crime. Ray v. United States, 721 F.3d 758, 761 (6th Cir. 2001(citing Bousley v. United States, 523 U.S. 614, 622 (1998)) (internal citations omitted).

A petitioner who entered a guilty plea must show an error of constitutional magnitude that had a substantial and injurious effect or influence on the proceedings. Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003)(citing Abrahamson, 507 U.S. at 637). Therefore, a court may only grant relief under § 2255 if the petitioner demonstrates “‘a fundamental defect which inherently results in a complete miscarriage of justice.'” Id. at 736 (quoting Davis v. United States, 417 U.S. 333, 346 (1974)). A petitioner further bears the burden of articulating sufficient facts to state a viable claim for relief under § 2255. Vague and conclusory claims which are not substantiated by allegations of specific facts with some probability of verity are not enough to warrant relief. A § 2255 motion may be dismissed if it only makes conclusory statements without substantiating allegations of specific facts and fails to state a claim cognizable under § 2255. Green v. Wingo, 454 F.2d 52, 53 (6th Cir. 1972); O'Malley v. United States, 285 F.2d 733, 735 (6th Cir. 1961).

United States v. Noble, No. 1:14-cr-135, 2017 WL 626130, at *3 (N.D. Ohio Feb. 15, 2017).

         III. Ineffective Assistance of Counsel

         “In all criminal prosecutions, ” the Sixth Amendment affords “the accused...the right...to Assistance of Counsel for his defence.” U.S. Const. amend. VI. “Only a right to ‘effective assistance of counsel' serves the guarantee.” Couch v. Booker, 632 F.3d 241, 245 (6th Cir. 2011) (citation omitted). The United States Supreme Court set forth the legal principles governing claims of ineffective assistance of counsel in Strickland v. Washington, 466 U.S. 556 (1984). In order to prevail on a claim of ineffective assistance of counsel, a petitioner must demonstrate both that counsel's performance was deficient, or that counsel “made errors so serious that counsel was not functioning as the ‘counsel' guaranteed” by the Sixth Amendment, and that this deficient performance prejudiced the petitioner. Id. at 687. This showing requires that defense counsel's errors were so serious as to deprive the defendant of a fair and reliable trial. Id.

         “Surmounting Strickland's high bar is never an easy task.” Padilla v. Kentucky, 599 U.S. 356, 371 (2010). Given the difficulties inherent in determining whether an attorney's performance was constitutionally deficient, “a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . . .” Strickland, 466 U.S. at 689. Nevertheless, “[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.” Id. at 691. Therefore, a petitioner must also establish prejudice in order to prevail on a claim of ineffective assistance of counsel. Id. at 692.

         In order to establish prejudice, a petitioner must demonstrate that a reasonable probability exists that, but for counsel's errors, the result of the proceedings would have been different. Id. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. Because a petitioner must satisfy both prongs of Strickland in order to demonstrate ineffective assistance of counsel, should a court determine that the petitioner has failed to satisfy one prong, it need not consider the other. Id. at 697.

         Because a criminal defendant waives numerous constitutional rights when he pleads guilty, the guilty plea must be entered knowingly and voluntarily in order to be constitutionally valid. Boykin v. Alabama, 395 U.S. 238, 244 (1969). “‘The standard was and remains whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.'” Sparks v. Sowders, 852 F.2d 882, 885 (6th Cir. 1988) (quoting North Carolina v. Alford, 400 U.S. 25, 31 (1970)). In applying this standard, a court must look at the totality of the circumstances surrounding the plea. Id. A criminal defendant's solemn declaration of guilt carries a presumption of truthfulness. Henderson v. Morgan, 426 U.S. 637, 648 (1976). Further, a criminal defendant cannot successfully challenge the voluntariness of his plea merely on the basis that he was motivated to plead guilty. Brady v. United States, 397 U.S. 742, 750 (1970).

         However, a petitioner may challenge the entry of a plea of guilty on the basis that counsel's ineffectiveness prevented the plea from being knowing and voluntary. Tollett v. Henderson, 411 U.S. 258, 267 (1973). Strickland's two part test applies to challenges to guilty pleas based on a claim of ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 59 (1985); Sparks, 852 F.2d at 884. In order to obtain relief on that basis, however, a petitioner raising such a claim must first show that counsel's advice was not within the range of competence demanded of attorneys in criminal cases. Hill, 474 U.S. at 59; Sparks, 852 F.2d at

The second, or “prejudice” requirement, on the other hand, focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process. In other words, in order to satisfy the “prejudice” requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.

Hill, 474 U.S. at 59; Sparks, 852 F.2d at 884.

         Petitioner has failed to meet this standard here. Petitioner claims that his attorney failed to consult with him regarding the case or provide him with sufficient information so that he could make an informed decision regarding whether to enter a guilty plea. (ECF No. 102-1, PAGEID# 336.) Petitioner complains that his attorney urged him to cooperate, advised him to plead guilty, and pressured him into so doing. Additionally, Petitioner contends that his attorney failed to conduct pre-trial investigation as to information regarding the person who set Petitioner up as criminally responsible for the acts charged and facts indicating that Petitioner only participated in five drug transactions and did not own the apartment used as a “stash” house. Petitioner complains that counsel failed to require testing of the drugs seized, which would have resulted in a reduced sentence, because Petitioner “cut” the drugs that he sold. Petitioner states that he did not agree to the forfeiture of property or any enhancements of his recommended sentence under the advisory United States Sentencing Guidelines. According to Petitioner, he was forced to sign the Plea Agreement on the day of the guilty plea hearing, without being provided sufficient time to review its terms. Petitioner states that he attempted to hire a new attorney, but was unable to do so, and the prosecutor told him that the plea offer would be withdrawn if he hired a new attorney. Petitioner maintains that, but for the ineffective performance of his attorney, it is reasonably probable that he would have pleaded guilty without a plea agreement or proceeded to trial. Petitioner asserts that his attorney failed to negotiate more favorable terms on his behalf and improperly advised him that entry of a guilty plea was his best option under the circumstances of this case.

         In response, Respondent has submitted an Affidavit from Michael H. Siewert, Petitioner's former defense counsel, which indicates in relevant part as follows:

I visited in the jail with Mr. Drone on sixteen (16) different occasions to discuss this case. These visits do not include additional consultations which occurred before, during, and after the proffers with the government.

         Specifically, I met with Mr. Drone on the following dates:

a. August 19, 2015
b. August 22, 2015
c. August 24, 2015
d. August 29, 2015
e. September 9, 2015
f. September 17, 2015
g. September 30, 2015
h. October 12, 2015
i. December 14, 2015
j. December 16, 2015
k. December 22, 2015
l. January 22, 2016
m. February 9, ...

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