Hollis v. United States

• Decision Date: 23 January 2019
• Docket Number: CIVIL ACTION NO. 3:16-CV-351-WKW [WO]
• Parties: SHEDRICK D. HOLLIS, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Middle District of Alabama

SHEDRICK D. HOLLIS, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

CIVIL ACTION NO. 3:16-CV-351-WKW [WO]

DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA EASTERN DIVISION

January 23, 2019

RECOMMENDATION OF THE MAGISTRATE JUDGE

Before the court is petitioner Shedrick D. Hollis's ("Hollis") pro se motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence by a person in federal custody. Doc. No. 1.¹

I. INTRODUCTION

In March 2013, a jury found Hollis guilty of two counts of possession of a controlled substance with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) (Counts 1 and 2); one count of possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1) (Count 3); and one count of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) & 924(e) (Count 4). Doc. No. 15-26. After a sentencing hearing on August 6, 2013, the district court sentenced Hollis to 420 months in prison, consisting of concurrent terms of 360 months on Counts 1, 2, and 4 and a consecutive term of 60 months on Count 3. Doc. No. 15-27; Doc. No. 1-7 at 1-2.

Hollis appealed, arguing that (1) the district court erred in denying his motion to suppress the drug and firearm evidence found in the apartment where he was arrested; and (2) the district court abused its discretion by excluding testimony from the defense's forensic expert regarding the sufficiency of a latent fingerprint for comparison. See Doc. No. 15-29. On March 12, 2105, the Eleventh Circuit issued an opinion affirming Hollis's convictions and sentence. United States v. Hollis, 780 F.3d 1064 (11th Cir. 2015); Doc. No. 15-30. Hollis filed a petition for writ of certiorari in the United States Supreme Court, which that court denied on October 5, 2015. Doc. No. 15-31.

On May 5, 2016, Hollis filed this § 2255 motion asserting the following claims:

1. His counsel rendered ineffective assistance by failing to (a) investigate the defense's forensic expert to determine if he was qualified as an expert in latent fingerprint analysis; (b) object on Confrontation Clause grounds to testimony by the Government's expert in latent fingerprint analysis; (c) cross-examine the Government's fingerprint expert about deficiencies in the FBI system of fingerprint analysis; and (d) call as a witness a second examiner who analyzed fingerprint evidence in the case.

2. His counsel rendered ineffective assistance by failing to (a) object to the § 924(c) count in the indictment on grounds that (i) it was duplicitous, and (ii) it did not include as an element that the firearm possession had to be in furtherance of, or in aid of, the drug trafficking crime; and (b) object to the district court's jury instruction on the § 924(c) count on grounds that (i) it criminalized two separate offenses, and (ii) it did not inform the jury that the firearm possession had to be in aid of the drug trafficking crime.

3. His counsel rendered ineffective assistance by failing to (a) move to suppress the seized evidence on grounds that law enforcement conducted an unlawful search incident to arrest under the standard of Chimel v. California, 395 U.S. 752 (1999), and for failing to request a suppression hearing on this same theory; (b) move to suppress on grounds that the evidence was fruit of the poisonous tree obtained through police misconduct; and (c) file a motion in limine or to suppress the drug evidence on grounds it was mishandled by law enforcement.

4. His counsel rendered ineffective assistance by failing to impeach various witnesses regarding inaccuracies, conflicts, and inconsistencies in their testimony.

5. His counsel rendered ineffective assistance by failing to have the drug evidence reweighed and reanalyzed.

6. His counsel rendered ineffective assistance by failing to request a jury instruction on possession of small amounts of a controlled substance under 21 U.S.C. § 844(a) and allowing the court to instruct the jury on a § 841(a)(1) offense.

7. His counsel at his first trial was ineffective for requesting a mistrial.

8. His counsel rendered ineffective assistance by failing to request a reduction in his offense level based on acceptance of responsibility under U.S.S.G. § 3E1.1.

9. His counsel rendered ineffective assistance by failing to argue he was actually innocent of all criminal conduct except for possession of marijuana.

10. His counsel rendered ineffective assistance by failing to argue that his prior drug convictions could not be used to enhance his sentence under the career offender guideline and under the Armed Career Criminal Act.

11. His counsel rendered ineffective assistance by failing to request a two-level reduction to his offense level based on Amendment 782 to the Sentencing Guidelines.

12. His appellate counsel rendered ineffective assistance by failing to (a) raise various claims of ineffective assistance of trial counsel; (b) pursue the issue that the district court abused its discretion by excluding testimony from the defense's forensic expert regarding the sufficiency of a latent fingerprint for comparison; and (c) argue that the evidence was insufficient to sustain his convictions.

Doc. No. 1 at 4-10; Doc. No. 1-1 through 1-3; Doc. No. 2 at 2-20.²

For the reasons that follow, the court concludes that Hollis's § 2255 motion should be denied without an evidentiary hearing and this action be dismissed with prejudice. Rule 8(a), Rules Governing Section 2255 Proceedings in the United States District Courts.³

II. DISCUSSION

A. General Standard of Review

Because collateral review is not a substitute for direct appeal, the grounds for collateral attack on final judgments under 28 U.S.C. § 2255 are limited. A prisoner may have relief under § 2255 if the court imposed a sentence that (1) violated the Constitution or laws of the United States, (2) exceeded its jurisdiction, (3) exceeded the maximum authorized by law, or (4) is otherwise subject to collateral attack. See 28 U.S.C. § 2255; United States v. Phillips, 225 F.3d 1198, 1199 (11th Cir. 2000); United States v. Walker, 198 F.3d 811, 813 n.5 (11th Cir. 1999). "Relief under 28 U.S.C. § 2255 'is reserved for transgressions of constitutional rights and for that narrow compass of other injury that could not have been raised in direct appeal and would, if condoned, result in a complete miscarriage of justice.'" Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004) (citations omitted).

B. Claims of Ineffective Assistance of Counsel

A claim of ineffective assistance of counsel is evaluated against the two-part test announced in Strickland v. Washington, 466 U.S. 668 (1984). First, a petitioner must show that "counsel's representation fell below an objective standard of reasonableness." Id. at 689. Second, the 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." Id. at 694. See Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000).

Scrutiny of counsel's performance is "highly deferential," and the court indulges a "strong presumption" that counsel's performance was reasonable. Chandler, 218 F.3d at 1314 (internal quotation marks omitted). The court will "avoid second-guessing counsel's performance: It does not follow that any counsel who takes an approach [the court] would not have chosen is guilty of rendering ineffective assistance." Id. (internal quotation marks and brackets omitted). "Given the strong presumption in favor of competence, the petitioner's burden of persuasion—though the presumption is not insurmountable—is a heavy one." Id.

As noted, under the prejudice component of Strickland, a 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. A "reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. The prejudice prong does not focus only on the outcome; rather, to establish prejudice, the petitioner must show that counsel's deficient representation rendered the result of the trial fundamentally unfair or unreliable. See Lockhart v. Fretwell, 506 U.S. 364, 369 (1993) ("[A]n analysis focusing solely on mere outcome determination, without attention to whether the result of the proceeding was fundamentally unfair or unreliable, is defective."). "Unreliability or unfairness does not result if the ineffectiveness of counsel does not deprive the defendant of any substantive or procedural right to which the law entitles him." Id. at 372.

Unless a petitioner satisfies the showings required on both prongs of the Strickland inquiry, relief should be denied. Strickland, 466 U.S. at 687. Once a court decides that one of the requisite showings has not been made, it need not decide whether the other one has been. Id. at 697; Duren v. Hopper, 161 F.3d 655, 660 (11th Cir. 1998).

A criminal defendant's right to effective assistance of counsel continues through direct appeal. See Evitts v. Lucey, 469 U.S. 387, 396 (1985). Ineffective assistance of appellate counsel may be shown if the movant can "establish . . . that counsel omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker[.] Generally, only when ignored issues are clearly stronger than those presented, will the presumption of effective assistance of counsel be overcome." Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994).

1. Ineffective-Assistance Claims Related to Fingerprint Analysis

a. Failure to investigate defense's own expert. Hollis claims his trial counsel was ineffective for failing to investigate the defense's forensic expert to determine if he was qualified as an expert in latent fingerprint analysis. Doc. No. 1 at 4; Doc. No. 2 at 2-5.

In a search of the apartment where Hollis was arrested, officers discovered about a pound of...