Glinton v. United States
| Decision Date | 01 March 2012 |
| Docket Number | Case No. 8:07-CR-361-T-30TGW,Case No. 8:11-CV-717-T-23MAP,Case No. 8:04-CR-186-T-23MAP,Case No. 8:11-CV-718-T-30TGW |
| Parties | BRENDEN G. GLINTON,Petitioner, v. UNITED STATES OF AMERICA ,Respondent. |
| Court | U.S. District Court — Middle District of Florida |
This cause comes on for consideration of Petitioner's Motions under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (8:11-CV-717 D-1; 8:04-CR-186 D-84 and 8:11-CV-718 D-1; 8:07-CR-361 D-167)1 , the Government's response in opposition thereto (8:11-CV-717, D-9; 8:11-CV-718, D-8), and Petitioner's reply (8:11-CV-717, D-16; 8:11-CV-718, D-15).
A Third Superseding Indictment was filed on September 11, 2007, charging Petitioner . with conspiracy to possess with intent to distribute 5 kilograms or more of cocaine from 2000 until at least July 30, 2003, in violation of 21 U.S.C. §§ 841(a) (1) and (b) (1) (B) (ii) and a single distribution of 500 grams of cocaine on April 24, 2003, in violation of 21 U.S.C. §841(a)(1) and (b) (1) (B) (ii) . (Case No. 8 :-04-Cr-186-T-23MAP, D-l.) On February 22, 2008, Petitioner made his initial appearance and attorney Todd Seiden was appointed to represent Petitioner. Petitioner proceeded to trial on May 19, 2008. After a three-day trial, the jury found Petitioner guilty of both Counts of the Third Superseding Indictment.
On May 6, 2007, Petitioner and his co-defendant Jerome Major were arrested and a Complaint was filed against them on May 7, 2007 for possessing with the intent to distribute more than 500 grams of cocaine in violation of 21 U.S.C. § 841(a) (1). Attorney Seiden was appointed to represent Petitioner. On September 11, 2007, Petitioner and Major were charged by an Indictment with conspiracy to possess with the intent to distribute 500 grams or more of cocaine in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A)(ii) and distribution of 500 grams or more of cocaine in violation of 21 U.S.C. § 841(a)(1) and (b) (1) (B) (ii) and 18 U.S.C. § 2. (Case No. 8:07-Cr-361-T-30MAP.) They both proceeded to trial and on June 11, 2008, a jury found them guilty of both counts of the Indictment.
The Court consolidated Petitioner's cases for purposes of sentencing and on August 14, 2008, the Court sentencedPetitioner to a term of imprisonment of 169 months in each case, the terms to run concurrently. Petitioner appealed. Attorney Ryan Truskoski substituted as counsel for Petitioner on appeal. The Eleventh Circuit affirmed his convictions and sentence.
Petitioner timely filed his § 2255 motion. Petitioner raises various claims of ineffective assistance of counsel including that his trial counsel failed to (1) notify him about certain Government witnesses; (2) adequately represent him before and during sentencing; (3) correct false testimony at trial; (4) object to the amount of cocaine based on relevant conduct; (5) move to suppress evidence of Curtis Saunders' violation of bond conditions; and (6) challenge the jury's special finding in Case No. 8:04-Cr-186 and move for a judgment of acquittal and new trial.
The Government responds that some of Petitioner's claims are procedurally barred because he failed to raise them on appeal. The Government further argues that Petitioner fails to demonstrate that his counsel's performance was constitutionally ineffective or any resulting prejudice.
Claims of ineffective assistance of counsel require a showingof the two-prong test as set forth by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). In order to succeed under the Strickland test, a movant has the burden of proving: (1) deficient performance by counsel; and (2) prejudice resulting therefrom. Id. at 687.
The first prong of the Strickland test requires the Court to determine whether trial counsel performed below an "objective standard of reasonableness," while viewing counsel's challenged conduct on the facts of the particular case at the time of counsel's conduct. 466 U.S. at 688, 690. Notably, there is a strong presumption that counsel rendered adequate assistance and made all significant decisions with reasonable and competent judgment. Id.
A counsel's performance is deficient if, given all the circumstances, his or her performance falls outside of accepted professional conduct. Strickland, 466 U.S. at 690. "Judicial scrutiny of counsel's performance must be highly deferential," and "counsel cannot be adjudged incompetent for performing in a particular way in a case, as long as the approach taken "might be considered sound trial strategy." Chandler v. United States, 218 F.3d 1305, 1313-14 (11th Cir.2000) (en banc) (). Rather, for counsel's conduct to be unreasonable, a petitioner must show that "no competent counsel would have taken the action thathis counsel did take." Chandler, 218 F.3d at 1315.
The Supreme Court has consistently held that "as a matter of law, counsel's conduct ... cannot establish the prejudice required for relief under the second [prong] [o]f the Strickland inquiry." Nix v. Whiteside, 475 U.S. 157, 175 (1986). This admonition emphasizes the stringent requirement that if a petitioner does not satisfy both prongs of the Strickland test, "he will not succeed on an ineffective assistance claim." Zamora v. Duqqer, 834 F.2d 956, 958 (11th Cir. 1987). See also Weeks v. Jones, 26 F.3d 1030, 1037 (11th Cir. 1994) . Therefore, a court may resolve a claim of ineffective assistance of counsel based solely on lack of prejudice without considering the reasonableness of the attorney's performance. Waters v. Thomas, 46 F.3d 1506, 1510 (11th Cir. 1995) (citing Strickland, 466 U.S. at 697).
With regard to the second prong, the petitioner must show there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, at 694-95. A reasonable probability is a probability "sufficient to undermine confidence in the outcome." Id. at 694. A petitioner must show a "substantial, not just conceivable, likelihood of a different result." Cullen v. Pinholster, ---U.S. ----, 131 S.Ct. 1388, 1403 (2011) (citation omitted).
With the foregoing standard in mind, the Court turns toPetitioner's specific claims of ineffective assistance.
Petitioner contends that his counsel failed to disclose to him information relating to the debriefings of Joseph John Jones and Yvette Hendrix and failed to investigate these people. He suggests that his counsel should have required the Government to produce them as witnesses at trial to test their credibility. He argues that had Jones and Hendrix testified at trial, they may have contradicted testimony of other Government witnesses.
According to information in the Presentence Investigation Report, Jones and Hendrix were customers of Petitioner. Jones was a co-defendant of confidential informant Curtis Saunders in another drug case, Case No. 8:06-Cr-505-T-23MSS. Jones pled guilty in April 2007 and cooperated with law enforcement. According to the PSI, Jones told law enforcement that he received approximately 15 kilograms of cocaine from Petitioner. He said he cooked cocaine into crack yielding two kilograms of crack for every kilogram of cocaine he purchased from Petitioner. (PSI ¶ 14-15.)
The PSI indicated that Hendrix was another of Petitioner's customers. Hendrix debriefed to law enforcementand estimated that she personally received at least 10 kilograms of cocaine from Petitioner. She further stated that she was present on at least 30 to 40 other occasions when Curtis Saunders received one to five kilograms of cocaine from Petitioner on each occasion. (Id. at ¶ 15.) Neither Jones nor Hendrix testified at either of Petitioner's trials, although Hendrix was included on the Government's Witness List. (04-Cr-D-39, ¶ 13.) Furthermore, Michael Arline and Curtis Saunders testified that Hendrix and Jones were among Petitioner's customers.
Petitioner's counsel could not force the Government to call Jones and Hendrix to testify in the Government's case-in-chief. Therefore, Petitioner's claim that his counsel was ineffective in failing to require the Government to produce them to testify at trial is meritless.
To the extent Petitioner claims that his counsel was ineffective in failing to call Hendrix and Jones to testify in his defense, this claim fails. Specifically, presentation of witness testimony is a matter of trial strategy. Buckelew v. United States, 575 F.2d 515, 521 (5th Cir. 1978); accord United States v. Guerra, 628 F.2d at 410, 413 (5th Cir. 1980). Petitioner has the burden to establish facts showing counsel'sfailure to call witnesses rendered his trial fundamentally unfair. Coon v. United States, 441 F.2d 279 (5th Cir. 1971) . Petitioner's burden in this regard is heavy "since the presentation of testimonial evidence is a matter of trial strategy and often allegations of what a witness would have testified to are largely speculative." Guerra, 628 F.2d 410, 413 (citation omitted). "Which witnesses, if any, to call, and when to call them, is the epitome of a strategic decision, and it is one that we will seldom, if ever, second guess." Waters v. Thomas, 46 F.3d 1506, 1512 (11th Cir.1995) (en banc).
Here, Petitioner merely speculates that Hendrix and Jones may have provided testimony that may have discredited the testimony of other Government witnesses. He fails to present evidence of any actual testimony or affidavits from Hendrix and Jones. Petitioner's conclusory allegations are insufficient to support a finding of ineffective assistance.
Petitioner next contends that his attorney did not discuss the PSI with Petitioner until the actual day of sentencing. Petitioner also argues his attorney did not object at sentencing to amount of drugs...
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