McGrath v. United States

• Decision Date: 26 March 2021
• Docket Number: CRIMINAL ACTION NO. 1:16-00091-CG-N,CIVIL ACTION NO. 1:17-00368-CG-N
• Parties: MICHAEL LON MCGRATH, BOP Reg. #16390-003, Movant, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Southern District of Alabama

MICHAEL LON MCGRATH, BOP Reg. #16390-003, Movant, v. UNITED STATES OF AMERICA, Respondent.

CIVIL ACTION NO. 1:17-00368-CG-N

CRIMINAL ACTION NO. 1:16-00091-CG-N

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

March 26, 2021

ORDER

Michael Lon McGrath ("McGrath"), a federal prisoner proceeding without counsel (pro se), filed a Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 dated August 14, 2017 (Doc. 59)¹ challenging the judgment entered against him in the above-numbered criminal action. The Court ordered McGrath to file an amended version of his § 2255 motion on the Court's form (Docs. 60, 65) and McGrath complied on October 10, 2017 (Doc. 66). The Government timely filed a response (Doc. 70) in opposition to McGrath's § 2255 motion, as ordered by the Court under Rule 4(b) of the Rules Governing Section 2255 Proceedings (Doc. 68), and McGrath filed a reply (Doc.71). McGrath then filed several motions to amend his § 2255 motion (see Docs. 72, 76, 84). The Court ordered the Government to respond to two of these motions to amend (Docs. 73, 85) and the Government complied (Docs. 74, 86). McGrath's § 2255 motion is now under submission for determination of whetherexpansion of the record and/or an evidentiary hearing is warranted. See Rules 7 and 8(a) of the Rules Governing Section 2255 Proceedings.

Having reviewed the parties' submissions and other relevant portions of the record in accordance with Rule 8(a) of the Rules Governing Section 2255 Proceedings, the Court finds that neither expansion of the record nor an evidentiary hearing is warranted, and that McGrath's § 2255 motion (Doc. 66) is DENIED and DISMISSED with prejudice.

I. Background

On April 28, 2016, the grand jury for this district returned an indictment against McGrath (Doc. 1), charging him with four counts involving unlawful firearm possession offenses. McGrath was appointed trial counsel and initially entered a plea of not guilty to all charges. (See Doc. 12). On June 21, 2016, McGrath, pursuant to a written plea agreement (Doc. 30), changed his plea and entered a plea of guilty to knowingly possessing a stolen firearm in violation of 18 U.S.C. § 922(j), charged in the indictment as Count Two. (See Docs. 1, 31). The Court adopted the presentence investigation report (Doc. 45) without change. (Doc. 51, PageID.237). On October 4, 2016, the Court sentenced McGrath to 120 months of imprisonment followed by 3 years of supervised release, along with a $100.00 assessment. (Doc. 50). Consistent with the terms of the plea agreement, the remaining counts against McGrath were dismissed on motion of the Government. (See Doc. 50). McGrath did not appeal the judgment. (See Doc. 49; Doc. 66, PageID.383). McGrath timely filed the present § 2255 motion in August 2017. (See Doc. 59, PageID.300).

II. Legal Standards

McGrath's § 2255 motion raises several substantive and procedural issues. This section sets out the standards for the following issues: (a) the general standards of review under § 2255; (b) ineffective assistance of counsel; (c) the effect of a guilty plea on § 2255 motions; and (d) amending § 2255 motions.

a. General Standards of Review under § 2255

Under 28 U.S.C. § 2255, a federal prisoner may "bring a collateral challenge by moving the sentencing court to vacate, set aside, or correct the sentence." Winthrop-Redin v. United States, 767 F.3d 1210, 1215-16 (11th Cir. 2014). However, "[o]nce the defendant's chance to appeal has been waived or exhausted," a court is "entitled to presume he stands fairly and finally convicted, especially when, as here, he already has had a fair opportunity to present his federal claims to a federal forum." United States v. Frady, 456 U.S. 152, 164 (1982). "[A] collateral challenge, such as a § 2255 motion, may not be a surrogate for a direct appeal." Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004) (per curiam) (citing Frady, 456 U.S. at 165 (collecting cases)). "Because collateral review is not a substitute for a direct appeal, the general rules have developed that: (1) a defendant must assert all available claims on direct appeal, and (2) 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." Id. (internal citations, quotations, and footnote omitted).

Once a petitioner files a § 2255 motion, "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled tono relief, the court shall . . . grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto." [28 U.S.C.] § 2255(b). A petitioner is entitled to an evidentiary hearing if he "alleges facts that, if true, would entitle him to relief." Aron[ v. United States], 291 F.3d [708,] 715 [(11th Cir. 2002)] (quoting Holmes v. United States, 876 F.2d 1545, 1552 (11th Cir. 1989)). "[A] petitioner need only allege—not prove—reasonably specific, non-conclusory facts that, if true, would entitle him to relief." Id. at 715 n.6. However, a district court need not hold a hearing if the allegations are "patently frivolous," "based upon unsupported generalizations," or "affirmatively contradicted by the record." Holmes, 876 F.2d at 1553 (quoting United States v. Guerra, 588 F.2d 519, 520-21 (5th Cir. 1979)); see, e.g., Lynn v. United States, 365 F.3d 1225, 1239 (11th Cir. 2004) ("Because the . . . affidavits submitted by Lynn amount to nothing more than mere conclusory allegations, the district court was not required to hold an evidentiary hearing on the issues and correctly denied Lynn's § 2255 motion.").

Winthrop-Redin, 767 F.3d at 1216 (footnote omitted); accord, e.g., Diveroli v. United States, 803 F.3d 1258, 1263 (11th Cir. 2015). In making this determination, the Court is aware that it must "liberally construe pro se filings, including pro se applications for relief pursuant to § 2255." Winthrop-Redin, 767 F.3d at 1215.

b. Ineffective Assistance of Counsel

The Sixth Amendment gives criminal defendants the right to effective assistance of counsel. U.S. Const., amend. VI; Strickland v. Washington, 466 U.S. 668, 684-86 (1984). "[F]ailure to raise an ineffective-assistance-of-counsel claim on direct appeal does not bar the claim from being brought in a later, appropriate proceeding under § 2255." Massaro v. United States, 538 U.S. 500, 509 (2003). Indeed, "in most cases a motion brought under § 2255 is preferable to direct appeal for deciding claims of ineffective assistance." Id. at 504; see also United States v. Curbelo, 726 F.3d 1260, 1267 (11th Cir. 2013) ("An ineffective assistance claim should usuallybe raised in a motion under 28 U.S.C. § 2255." (citing United States v. Patterson, 595 F.3d 1324, 1328 (11th Cir. 2010))), cert. denied, 134 S. Ct. 962 (2014). "To establish an ineffective assistance of counsel claim, a defendant must show that (1) 'counsel's representation fell below an objective standard of reasonableness' and (2) that such failure prejudiced him in that 'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' " United States v. Pease, 240 F.3d 938, 941 (11th Cir. 2001) (per curiam) (quoting Strickland, 466 U.S. at 687-88, 694).

"Conclusory allegations of ineffective assistance are insufficient." Wilson v. United States, 962 F.2d 996, 998 (11th Cir. 1992) (per curiam) (quoting United States v. Lawson, 947 F.2d 849, 853 (7th Cir. 1991)). Moreover, "[b]ecause both parts of the test must be satisfied in order to show a violation of the Sixth Amendment, the court need not address the performance prong if the defendant cannot meet the prejudice prong, or vice versa." Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000) (citation omitted); see also Osley v. United States, 751 F.3d 1214, 1222 (11th Cir. 2014) ("A habeas petitioner claiming ineffective assistance of counsel must carry his burden on both Strickland prongs, and a court need not address both prongs if the defendant has made an insufficient showing on one."); Johnson v. Alabama, 256 F.3d 1156, 1176 (11th Cir. 2001) ("The petitioner bears the burden of proof on the 'performance' prong as well as the 'prejudice' prong of a Strickland claim, and both prongs must be proved to prevail."). "The Strickland test is not easily met; . . . 'the cases in which habeas petitioners can properly prevail on the ground of ineffective assistance of counsel arefew and far between.' " Johnson, 256 F.3d at 1176 (quoting Waters v. Thomas, 46 F.3d 1506, 1511 (11th Cir. 1995) (en banc) (citation omitted)).

"The test for ineffectiveness is not whether counsel could have done more; perfection is not required." Waters, 46 F.3d at 1518; accord, e.g., Burt v. Titlow, 571 U.S. 12, 24 (2013) ("[T]he Sixth Amendment does not guarantee the right to perfect counsel; it promises only the right to effective assistance . . . ."). "A lawyer can almost always do something more in every case. But the Constitution requires a good deal less than maximum performance." Atkins v. Singletary, 965 F.2d 952, 960 (11th Cir. 1992).

In evaluating the first, or "performance," prong of Strickland, "[j]udicial scrutiny of counsel's performance must be highly deferential." [Strickland, 466 U.S.] at 689, 104 S. Ct. at 2065. Because retrospective evaluation of a lawyer's performance can be difficult, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that . . . the challenged action might be considered sound trial strategy." Id. (internal quotations omitted). A petitioner must identify specific acts or omissions that were not the result of reasonable professional judgment, and a court should

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