United States District Court, E.D. Tennessee, Chattanooga Division
RANDALL L. BOSTIC, Petitioner,
UNITED STATES OF AMERICA, Respondent.
CURTIS L. COLLIER, District Judge.
Acting pro se, federal inmate Randall L. Bostic ("petitioner" or "Bostic") brings two motions, the first of which is a motion to vacate, set aside, or correct a sentence under 28 U.S.C. § 2255, (Court File No. 25), and the second, a motion for appointment of counsel to appeal issues "not known at the time of sentencing, " (Court File No. 29). Because it is easily resolved, the second motion will be discussed at the outset.
The Court sees nothing from which petitioner could possibly carry a timely appeal to the United States Court of Appeals for the Sixth Circuit, as the judgment in his criminal case was entered on July 13, 2010, (Court File No. 23), and as no other order (save the one directing the United States to respond to this § 2255 motion) has been entered since that time.
Accordingly, Bostic's motion for counsel to represent him on appeal is DENIED, (Court File No. 29), as premature.
The United States has filed a response in opposition to the § 2255 motion to vacate, which is supported by the affidavit of Rita LaLumia, the attorney who served as Bostic's trial counsel, (Court File Nos. 28 and 28-1). Petitioner has replied to the United States' response and has submitted what he has entitled an "Affidavit, " which, presumably, has been offered for the purpose of countering Ms. LaLumia's affidavit, (Court File No. 30 at 11). For the reasons which follow, petitioner's § 2255 motion will be DENIED.
I. Procedural Background
On October 14, 2009, the Grand Jury charged Bostic in a six-count indictment with commission of three drug-related offenses and three firearms offenses, (Court File No. 1). The government later filed a notice, under 28 U.S.C. § 851, stating its intent to use petitioner's prior felony drug convictions to enhance his sentence, (Court File No. 12). Thereafter, petitioner pleaded guilty to being a felon in possession of a firearm, a violation of 18 U.S.C. § 922(g)(1), (Count one); to an attempt to manufacture methamphetamine, which violates 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(C), (Count two); and to possession of a firearm in furtherance of drug trafficking, in violation of 18 U.S.C. § 9242(c)(1)(A), (Count 5).
For these offenses, petitioner received, on July 13, 2010, a 262-month total term of confinement and a 6-year term of supervised release, (Court File No. 23). Bostic did not file a direct appeal to the Sixth Circuit, but instead brought this timely § 2255 motion to vacate on June 7, 2011.
II. Standard of Review
Under 28 U.S.C. § 2255(a), a federal prisoner may make a motion to vacate, set aside, or correct his judgment of conviction and sentence, if he claims the sentence was imposed in violation of the Constitution or laws of the United States; the court lacked jurisdiction to impose the sentence; or the sentence is in excess of the maximum authorized by law, or is otherwise subject to collateral attack. As a threshold standard, to obtain post-conviction relief under § 2255 a motion must allege: (1) an error of constitutional magnitude; (2) a sentence imposed outside the federal statutory limits; or (3) an error of fact or law so fundamental as to render the entire criminal proceeding invalid. Mallett v. United States, 334 F.3d 491, 496-97 (6th Cir. 2003); Moss v. United States, 323 F.3d 445, 454 (6th Cir. 2003).
Petitioner bears the burden of demonstrating an error of constitutional magnitude which had a substantial and injurious effect or influence on the criminal proceedings. Reed v. Farley, 512 U.S. 339, 353 (1994); Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993). In order to obtain collateral relief under § 2255, a petitioner must clear a significantly higher hurdle than would exist on direct appeal. United States v. Frady, 456 U.S. 152 (1982).
Under Rule 8 of the Rules Governing Section 2255 Proceedings, a court is to determine, after a review of the answer and the records of the case, whether an evidentiary hearing is required. If the motion to vacate and the other documents show conclusively the petitioner is not entitled to relief under § 2255, there is no need for an evidentiary hearing. Baker v. United States, 781 F.2d 85, 92 (6th Cir. 1986). The Court sees no need for an evidentiary hearing in the instant case.
III. Factual Background
The stipulated facts underlying Bostic's convictions were contained in his signed plea agreement, (Court File No. 15). He confirmed those facts were true and accurate at his rearraignment hearing before U.S. Magistrate Judge Susan K. Lee, (Court File No. 27, Rearraignment Hr'g Tr. at 22-23).
On January 13, 2009, members of the Meigs County, Tennessee Sheriff's Office and the 10th Judicial Drug Task Force executed a search warrant at petitioner's residence. He was home when the warrant was executed and was carrying, on his person, a substance which laboratory tests later revealed to be 1.9 grams of methamphetamine. During the search of the home, agents uncovered an active methamphetamine lab; a police scanner; methamphetamine pipes; a book or print-out titled, "Secrets of Meth Manufacturing"; "pill wash"; pseudoephedrine; iodine; red phosphorous; and other items typically connected to meth labs. Also discovered were ten firearms, including an illegal short-barreled shotgun; two other shotguns; a revolver; a semi-automatic pistol; and five rifles.
Agents informed him of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 1626, 16 L.Ed.2d 694 (1966), which he waived. Though petitioner declined to give a written statement, he mentioned, during his oral statement, his son lived with him and he [petitioner] admitted "everything the police found belonged to" him, including the firearms located on a gun rack in the bedroom. When asked whether he knew it was illegal to possess firearms, Bostic responded: "[Y]eah, I know, but a man's got a right to protect his self [sic]." When questioned about several packages of organic iodine discovered during the search, Bostic stated someone had sold him organic iodine to use in manufacturing methamphetamine, but he refused to identify his source, divulging only the location where the person obtained the iodine as "around Knoxville." Petitioner acknowledged he had been convicted previously of felony offenses involving methamphetamine.
In his preprinted form § 2255 motion, petitioner offers two main claims of ineffective assistance, each with sub-parts. The motion is confusingly drafted, but the Court will address each claim which can be discerned from petitioner's scattered approach to his attorney's purported failings.
A. The Controlling Law
Claims of ineffective assistance arise from the guarantee in the Sixth Amendment, which reads, in pertinent part: "In all criminal prosecutions, the accused shall enjoy the right... to have the Assistance of Counsel for his defense." U.S. Const. amend. VI. A defendant has a Sixth Amendment right not just to counsel, but to "reasonably effective assistance" of counsel. Strickland v. Washington, 466 U.S. 668, 687 (1984). In Strickland, the Supreme Court set forth a two-pronged test for evaluating claims of ineffective assistance of counsel:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction... resulted from a break down in the adversary process that renders the result unreliable.
Id. As with any other claim under § 2255, a movant bears the burden of proving by a preponderance of the evidence that his counsel was deficient . See Pough v. United States, 442 F.3d 959, 964 (6th Cir. 2006); Virgin Islands v. Nicholas, 759 F.2d 1073, 1081 (3d Cir. 1985).
In considering the first prong of Strickland s test, the appropriate measure of attorney performance is "reasonableness under prevailing professional norms." Strickland, 466 U.S. at 688. A petitioner asserting a claim of ineffective assistance of counsel must "identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment." Id. at 690. The evaluation of the objective reasonableness of counsel's performance must be made "from counsel's perspective at the time of the alleged error and light of all the circumstances, and the standard of review is highly deferential." Kimmelman v. Morrison, 477 U.S. 365, 381 (1986). There is a strong presumption counsel's conduct was within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689.
When considering Strickland 's second prong, in the context of a guilty plea, the movant must show a reasonable probability that, but for counsel's deficient performance, he would not have pleaded guilty. Hill v. Lockhart, 474 U.S. 52, 58-59 (1985). A reasonable probability is a probability sufficient to undermine confidence in the outcome." Moss v. United States, 323 F.3d 445, 454-55 (6th Cir. 2003) (quoting Strickland, 466 U.S. at 694). To demonstrate a reasonable probability he would have gone to trial, a defendant is required to present evidence apart from a lone assertion that but for counsel's error he would have pleaded not guilty and gone to trial. See Parry v. Rosemeyer, 64 F.3d 110, 118 (3d Cir. 1995) ("[A] defendant alleging ineffective assistance of counsel in the guilty plea context must make more than a bare allegation that but for counsel's error he would have pleaded not guilty and gone to trial."), cert. denied, 516 U.S. 1058 (1996).
The standard by which a court reviews counsel's performance is highly deferential, Strickland, 466 U.S. at 689, and counsel is constitutionally ineffective only if a performance below professional standards caused the defendant to lose what he "otherwise would probably have won." United States v. Morrow, 977 F.2d 222, 229 (6th Cir. 1992). While both prongs must be established in order to meet a petitioner's burden, if "it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice... that course should be followed." ...