Marion v. United States
| Decision Date | 20 July 2016 |
| Docket Number | Case No: 2:12-cv-574-FtM-29DNF,Case No. 2:08-cr-158-FTM-29DNF |
| Parties | ISAAC MARION, SR., Petitioner, v. UNITED STATES OF AMERICA, Respondents. |
| Court | U.S. District Court — Middle District of Florida |
This matter comes before the Court on Petitioner's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody (Cv. Doc. #1; Cr. Doc. #179)1 filed on October 18, 2012. The government filed a Response to Motion (Cv. Doc. #7) on December 7, 2012. The Petitioner filed a Reply (Cv. Doc. #10) on February 25, 2013 and two supplemental Replies on March 21, 2013 and June 6, 2013, (Cv. Doc. #11; Cv. Doc. #12).
Petitioner also filed a Motion to Amend/Correct on March 31, 2014 (Cv. Doc. #14) which the government opposed (Cv. Doc. #16). The Court granted Petitioner's Motion. (Cv. Doc. #15.) ThePetitioner then filed a second Motion to Amend/Correct on November 17, 2014. (Cv. Doc. #20.)2 No response was filed.
On June 9, 2009, a federal grand jury in Fort Myers, Florida returned a four-count Amended Superseding Indictment (Cr. Doc. #74) against Isaac Marion Sr. (Petitioner or Marion) charging Petitioner with: conspiracy to commit money laundering in violation of Title 18 U.S.C. §§ 1956(h) and 1956(a)(1)(B)(i) (Count 1); money laundering in violation of Title 18 U.S.C. §§ 1956(a)(1)(B)(i) and (2) (Count 2); false statement regarding 881 Jarmilla Lane in violation of Title 18 U.S.C. § 1001(a)(2) (Count 3); and false statement regarding 2929 Market Street in violation of Title 18 U.S.C. § 1001(a)(2) (Count 4). (Cr. Doc. #74.) A jury returned a guilty verdict on Counts 1 and 3, and acquitted on Counts 2 and 4 on July 17, 2009. (Cr. Doc. #126.)
On October 26, 2009, the Court sentenced petitioner to a term of imprisonment of 188 months as to Count 1, and 60 months as to Count 3, to be served concurrently, followed by a term of supervised release. (Cr. Doc. #139.) Judgment was filed on October 28, 2009. (Cr. Doc. #143.)
Petitioner appealed his conviction and sentence. Petitioner alleged that: (1) the denial of his motion for judgment of acquittal was an error because insufficient evidence existed to sustain his convictions; (2) that the false statement in Count 3 was immaterial; and (3) the district court abused its discretion in admitting his daughter's savings account records because the records were irrelevant and served only to mislead and confuse the jury. (Cr. Doc. #176); United States v. Marion, 418 F. App'x 847 (11th Cir. 2011). The Eleventh Circuit Court of Appeals affirmed Petitioner's conviction and sentencing. Id. Petitioner was denied certiorari on November 7, 2011. United States v. Marion, 132 S. Ct. 567 (2011). Petitioner's § 2255 motion, filed on October 18, 2012, is timely. (Cv. Doc. #1.) See Kaufmann v. United States, 282 F.3d 1336 (11th Cir. 2002).
Petitioner raises four claims in his § 2255 motion: (1) subject matter jurisdiction was improper because the indictment did not establish the elements of the charged offense of money laundering; (2) appellate counsel was ineffective for failing to challenge on appeal the government's failure to establish the essential elements of the charged offenses; (3) trial counsel was ineffective for not requesting a jury instruction on the prospective nature of the conspiracy agreement or plan, and the difference between money laundering and money spending; and (4)appellate counsel was ineffective for failing to argue on appeal that Petitioner's statement was false.
Petitioner's first motion for leave to amend the petition (Cv. Doc. #14) adds the following claims: (5) trial counsel was ineffective for failing to object to the District Court's calculations of the sentencing guideline range; and, (6) the trial court unconstitutionally incorporated a factor increasing the base offense level that had not been proven to a jury beyond a reasonable doubt. Petitioner's second motion for leave to amend the petition (Cv. Doc. #20) adds the following claims: (7) trial counsel was ineffective for failing to argue that the court should apply U.S. Sentencing Guidelines Manual § 5G1.3(b)(1) and (2) conjunctively; and (8) Petitioner's sentence is unreasonable due to the Court's miscalculation of the guidelines. For the reasons set forth below, the motion is denied in its entirety.
Petitioner is not entitled to an evidentiary hearing. A district court shall hold an evidentiary hearing on a habeas petition "unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief. . . ." 28 U.S.C. § 2255(b). "[I]f the petitioner alleges facts that, if true, would entitle him to relief, then the district court should order an evidentiary hearing and rule on the merits of his claim." Aron v. United States, 291 F.3d 708, 714-15 (11th Cir.2002) (internal citation omitted). However, a "district court is not required to hold an evidentiary hearing where the petitioner's allegations are affirmatively contradicted by the record, or the claims are patently frivolous." Id. at 715. See also Gordon v. United States, 518 F.3d 1291, 1301 (11th Cir. 2008). Here, even when the facts are viewed in the light most favorable to Petitioner, he has not established that either trial counsel or appellate counsel provided constitutionally ineffective assistance, or that he was otherwise deprived of a constitutional right. Therefore, the Court finds that an evidentiary hearing is not warranted in this case.
As set forth above, Petitioner raises five grounds of ineffective assistance of counsel and three grounds alleging various trial court errors. The Court will set forth the general legal principles and then apply them to the facts of the case.
Title 28 U.S.C. § 2255 provides federal prisoners with an avenue for relief under limited circumstances:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
28 U.S.C. § 2255(a) (2015). If a court finds a claim under § 2255 to be valid, the court "shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate." Id. at § 2255(b). To obtain this relief on collateral review, a petitioner must clear a significantly higher hurdle than would exist on direct appeal. See United States v. Frady, 456 U.S. 152, 166 (1982) ().
The legal standard for ineffective assistance of counsel claims in a habeas proceeding is well established. To prevail on a claim of ineffective assistance of counsel, a habeas petitioner must demonstrate both that (1) counsel's performance was deficient because it fell below an objective standard of reasonableness, and (2) prejudice resulted because there is a reasonable probability that, but for the deficient performance, the result of the proceeding would have been different. Hinton v. Alabama, ___ U.S. ___, 134 S. Ct. 1081, 1087-88 (2014) ().
The proper measure of attorney performance is simply reasonableness under prevailing professional norms considering all the circumstances. Hinton, 134 S. Ct. at 1088 (citationsomitted). A court must "judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct . . ." Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000) (quoting Strickland, 466 U.S. at 690) (internal quotation marks omitted). This judicial scrutiny is highly deferential, and the Court adheres to a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689-90. To be objectively unreasonable, the performance must be such that no competent counsel would have taken the action. Rose v. McNeal, 634 F.3d 1224, 1241 (11th Cir. 2011); Hall v. Thomas, 611 F.3d 1259, 1290 (11th Cir. 2010). Additionally, an attorney is not ineffective for failing to raise or preserve a meritless issue. United States v. Winfield, 960 F.2d 970, 974 (11th Cir. 1992); Ladd v. Jones, 864 F.2d 108, 109-10 (11th Cir. 1989).
To establish prejudice under Strickland, petitioner must show more than that the error had "some conceivable effect on the outcome of the proceeding." Marquard v. Sec'y for the Dep't of Corr., 429 F.3d 1278, 1305 (11th Cir. 2005) (quotation marks omitted). Rather, 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. Hinton, 134 S. Ct. at 1087-88. "A reasonable probability is a probability sufficient to undermine confidence in the outcome."Hinton, 134 S. Ct. at 1089 (quoting Strickland, 466 U.S. at 694) (internal quotation marks and citations omitted).
The same deficient performance and prejudice standards apply to appellate counsel. Smith v. Robbins, 528 U.S. 259, 285-86 (2000); Roe v. Flores-Ortega, 528 U.S. at 476-77. If the Court finds there has been deficient performance, it must examine the merits of the claim omitted on appeal. If the omitted claim would have had a reasonable probability of success on appeal, then the deficient performance resulted in prejudice. Joiner v. United States, 103 F.3d 961, 963 (11th Cir. 1997). Nonmeritorious claims which are not raised on direct appeal do not constitute ineffective...
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