Gazzola v. United States

• Decision Date: 27 May 2014
• Docket Number: No.: 4:11-cr-39,No.: 4:13-cv-74,: 4:13-cv-74,: 4:11-cr-39
• Parties: PHILLIP GAZZOLA, BOP # 44399-074, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Eastern District of Tennessee

PHILLIP GAZZOLA, BOP # 44399-074, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

No.: 4:13-cv-74

No.: 4:11-cr-39

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE at WINCHESTER

Dated: May 27, 2014

Mattice/Lee

MEMORANDUM OPINION

Acting pro se, federal inmate Phillip Gazzola brings this motion and amended motion to vacate, set aside, or correct a sentence under 28 U.S.C. § 2255, (Doc. 59).¹ On October 29, 2011, following Gazzola's guilty plea to two counts of being a felon in possession of a firearm and one count of being a felon in possession of ammunition—all violations of 18 U.S.C. § 922(g)(1), he was sentenced to 200 months imprisonment on each count, to be served concurrently, and to five years of supervised release, (Docs. 49-50). Gazzola was unsuccessful on direct appeal, (Docs. 56-57), and now advances in his § 2255 motion and amended motion several claims of ineffective assistance of counsel and a claim that his sentence was improperly enhanced under the Armed Career Criminal Act ["ACCA"], 18 U.S.C. § 924(e).

The United States has filed a response, arguing that all claims, save the last one, are groundless. As to that claim, respondent concedes that one of Gazzola's prior convictions does not qualify as an ACCA predicate offense. After reviewing the parties'filings, the relevant law, and the record, the Court agrees with respondent and will grant Gazzola's § 2255 motion with respect to his ACCA-enhancement claim.

I. Standard of Review

A federal prisoner may file a motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his conviction or sentence on the ground that it was imposed in violation of the United States Constitution. This Court must vacate and set aside the conviction or sentence if it finds that "the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack . . . ." 28 U.S.C.§ 2255(b).

To obtain relief under § 2255 based on an alleged constitutional error, the burden is on a movant to establish an error of constitutional magnitude which had a substantial and injurious effect or influence on the criminal proceedings. Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993); Hill v. United States, 368 U.S. 424, 428 (1962); Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003); Watson v. United States, 165 F.3d 486, 488 (6th Cir.1999). To warrant relief for a nonconstitutional error under § 2255, a movant is required to show a fundamental defect in the criminal proceedings which inherently results in a complete miscarriage of justice or an egregious error that rises to the level of a violation of constitutional due process. Reed v. Farley, 512 U.S. 339, 354 (1994); Davis v. United States, 417 U.S. 333, 346 (1974); Griffin, 330 F.3d at 736.

II. Facts

The facts which follow were recited in the Sixth Circuit's opinion in Gazzola's direct appeal. United States v. Gazzolla, 530 Fed. Appx. 507, 508-09 (6th Cir. July 22, 2013).

On July 22, 2011, law enforcement officers from the Cowan Police Department and Franklin County Sheriff's Department executed a search warrant at the defendant's residence. The search warrant was based on 2 controlled buys of morphine from the defendant in the preceding 72 hours. When officers knocked on the door and announced their presence, the defendant ran through the living room to the basement. Officers made entry and pursued the defendant downstairs, where they were finally able to subdue him after a brief struggle. They then searched the house and found small amounts of various pills and several grams of marijuana, along with $3,500 cash. Additionally, they recovered 2 firearms: a 12 gauge shotgun with 15 shells and a .17 caliber rifle with approximately 100 hollow point rounds of ammunition and other assorted ammunition.

A trace of the firearms by ATF shows that both guns traced back to the same person, who was interviewed and identified the defendant as being the person that purchased the firearms.

Prior to the date the defendant was in possession of the firearms, he had been convicted of a felony offense. All firearms and ammunition were manufactured outside the state of Tennessee or otherwise affected interstate or foreign commerce.

Gazzola pleaded guilty to three counts of possessing firearms and ammunition as a convicted felon, in violation of 18 U.S.C. § 922(g)(1). This was not his first brush with the law.

Among other crimes, Gazzola had previously been charged in the State of Washington of rape in 1977, second-degree assault in 2004, and third-degree assault in 2009. He was convicted of these crimes in 1978, 2005 and 2010 respectively. Each of these convictions was based on sexual assault or rape.

At sentencing, over Gazzola's objection, the district court adopted the recommendation of the PSR and concluded that the Washington offenses qualified as violent felonies under the ACCA. The court accordingly sentenced Gazzola as an armed career criminal, increasing his base offense level and subjecting him to a mandatory minimum sentence of fifteen years of imprisonment. See 18 U.S.C. § 924(e). Gazzola argued that his age andmedical condition, including a history of strokes, justified a downward variance in the interest of justice. The district court rejected this argument and sentenced Gazzola to 200 months incarceration, determining that "a sentence about a year longer than the bottom of [Gazzola's] guidelines range [was] appropriate in this case." In addition, Gazzola received 5 years of supervised release with sex-offender conditions.

Gazzolla, 530 Fed. Appx. at 508-09.

III. Discussion

In his § 2255 motion, Gazzola alleges that: 1) he had ineffective assistance of counsel in the entry of his guilty plea, at sentencing, and on direct appeal and 2) that the court lacked jurisdiction to impose the ACCA sentencing enhancement because he did not have the requisite number of predicate convictions to warrant the enhancement.

A. Ineffective Assistance

1. Relevant Law

The United States Supreme Court has established a two-part test for determining when assistance of counsel is ineffective. See Strickland v. Washington, 466 U.S. 668, 686-87 (1984). First, the petitioner must show that his counsel's errors were so egregious as to render counsel's performance constitutionally deficient - that is, outside the "wide range of professional assistance." Id. at 687; Gravely v. Mills, 87 F.3d 779, 785 (6th Cir. 1996). 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 alleged errors or omissions must be evaluated from counsel's perspective at the time the conduct occurred, under the circumstances of the particular case, "and the standard ofreview is highly deferential." Kimmelman v. Morrison, 477 U.S. 365, 381 (1986); Strickland at 689 (instructing that counsel's conduct is strongly presumed to fall within the wide range of reasonable professional assistance).

In addition to a deficient performance, a petitioner must also show that actual prejudice ensued as a result of counsel's errors. Thus, "[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. A petitioner will satisfy the prejudice prong of the Strickland test if he shows that there is a reasonable probability, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 694.² In order to establish "prejudice" within the context of a guilty plea, the petitioner must show that there is a reasonable probability that, but for counsel's professional errors, he would not have pled guilty but would have insisted on standing trial. Hill v. Lockhart, 474 U.S. 52, 58-59 (1985).

An insufficient showing on either component dooms the claim; thus a claim may be rejected for failure to show prejudice, without considering any deficient performance. Strickland, 466 U.S. at 687. Failure to object to an enhancement at sentencing may constitute ineffective assistance. United States v. Otero, 502 F.3d 331, 336-337 (3rd Cir. 2007); United States v. Franks, 230 F.3d 811, 814-15 (5th Cir. 2000). As with any other claim under § 2255, the burden of proving ineffective assistance of counsel is on the movant. Virgin Islands v. Nicholas, 759 F.2d 1073, 1081 (3d Cir. 1985).

2. Analysis

Petitioner's alleged attorney errors are examined separately.

a) Counsel incorrectly advised Gazzola about the ACCA enhancement, which resulted in an unknowing, involuntary, and unintelligently entered guilty plea.

In this claim, Gazzola alleges that counsel promised him that he would not be deemed to be an armed career criminal at sentencing and that his recommended guideline range was 30 to 37 months. A "secondary" reason why the plea is invalid, according to Gazzola, is that it was entered while he was not receiving medical care during his pretrial detention at the Silverdale Correctional Facility. These things account, so alleges Gazzola, for his decision to enter a guilty plea, without the benefit of a written plea agreement. Counsel's advice was proven wrong and his promise hollow because Gazzola was determined to be an armed career criminal and sentenced accordingly. Had Gazzola known that there was even the remote possibility that he would be deemed to be an armed career criminal, he would have either required a binding plea agreement offering him a less than five year sentence or he would have taken "his chances at trial," (Doc. 59, § 2255 Mot. at 24).

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