Montas v. United States, CASE NO. 8:11-cv-849-T-27TGW

• Decision Date: 18 October 2012
• Docket Number: CASE NO. 8:11-cv-849-T-27TGW,CRIM. CASE NO. 8:08-cr-271-T-27TGW
• Parties: GILBERT MONTAS, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Middle District of Florida

GILBERT MONTAS, Petitioner,

v.UNITED STATES OF AMERICA, Respondent.

CASE NO. 8:11-cv-849-T-27TGW

CRIM. CASE NO. 8:08-cr-271-T-27TGW

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

Dated: October 18, 2012

ORDER

BEFORE THE COURT is Petitioner's Motion to Vacate, Set Aside or Correct Sentence Pursuant to 28 U.S.C. § 2255 (CV Dkt. 1), the Government's Response (CV Dkt. 7), and Petitioner's Reply (CV Dkt. 10). Upon consideration, Petitioner's motion to vacate is DENIED.

Procedural Background

Petitioner and his three co-defendants were charged in an indictment with conspiracy to possess with intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846. (CRDkt. 14). On October 7, 2008, Petitioner pleaded guilty without a written plea agreement. (CR Dkts. 77, 181). On April 2, 2009, Petitioner was sentenced to 78 months imprisonment to be followed by five years of supervised release. (CR Dkt. 165).

Petitioner appealed his sentence. On January 19, 2010, the United States Court of Appeals for the Eleventh Circuit affirmed the sentence (CR Dkt. 201). Petitioner did not seek certiorari review in the United States Supreme Court.

Petitioner signed his Section 2255 motion on April 11, 2011. (CR Dkt. 207; CV Dkt. 1). The Respondent does not challenge the motion's timeliness. Petitioner raises six grounds for relief:

Ground One: Ineffective assistance of counsel for not moving to suppress Petitioner's statements in violation of Miranda v. Arizona, 384 U.S. 436 (1966);

Ground Two: Ineffective assistance of counsel for not properly advising Petitioner of the potential for an obstruction of justice enhancement if he testified at the sentencing hearing;

Ground Three: Ineffective assistance of counsel for failing to subpoena video records and time logs from the Pinellas County Jail;

Ground Four: Ineffective assistance of counsel for failing to adequately investigate and call three witnesses;

Ground Five: Ineffective assistance of counsel for failing to advise Petitioner of the advantages and disadvantages of pleading guilty; and

Ground Six: Ineffective assistance of counsel for failing to move for dismissal of the indictment based upon the district court's failure to make "ends of justice" findings

Facts¹

Petitioner and his co-defendants engaged in drug deals with undercover police officers and were arrested after attempting to purchase several kilograms of cocaine from the officers. After pleading guilty on October 7, 2008, Petitioner was detained in the Pinellas County Jail awaiting sentencing. On March 7, 2009, Petitioner was in the inmate visitation room with other inmates, including Santonio Simmons. Simmons was visiting two female family members through the video conference visitation program at the jail. As Simmons was finishing his visit, Petitioner asked him to leave the phone receiver off the hook when he left the visitation booth so that Petitioner could talkto someone after Simmons finished. Simmons left the phone off the hook as requested and left the visitation area. Leaving the phone off the hook maintains a live video feed between the inmate booth and the family visitation center. Petitioner then went in front of the video camera, exposed his penis, and began to masturbate in front of a fourteen year-old girl and her sister who were visiting another inmate in a nearby visitation booth.

Inmate Simmons and the two female victims identified Petitioner from photopacks as the person who committed these acts. Post-Miranda, Petitioner initially told law enforcement that he had exposed himself and masturbated but then recanted his story when he was told that one of the females was only fourteen years old. Petitioner was arrested for lewd and lascivious exhibition involving a minor while in custody at the jail. As a result of that new offense, Petitioner at his federal sentencing lost a three-level downward adjustment for acceptance of responsibility and incurred a two-level upward adjustment for obstruction of justice.

Standard for Ineffective Assistance of Counsel Claims

Strickland v. Washington, 466 U.S. 668 (1984), governs an ineffective assistance of counsel claim:

The law regarding ineffective assistance of counsel claims is well settled and well documented. In Strickland v. Washington, 466 U.S. 668,104 S.Ct. 2052,80 L.Ed.2d 674 (1984), the Supreme Court set forth a two-part test for analyzing ineffective assistance of counsel claims. According to Strickland, first, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Strickland, 466 U.S. at 687, 104 S.Ct. 2052.

Sims v. Singletary, 155 F.3d 1297, 1305 (11th Cir. 1998).

Strickland requires proof of both deficient performance and consequent prejudice. Strickland v. Washington, 466 U.S. at 697 ("There is no reason for a court deciding an ineffective assistance claim... to address both components of the inquiry if the defendant makes an insufficient showing on one."); Sims v. Singletary, 155 F.3d at 1305 ("When applying Strickland, we are free to dispose of ineffectiveness claims on either of its two grounds."). "[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland v. Washington, 466 U.S. at 690. "[A] court deciding an actual ineffectiveness claim 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." Id. Strickland requires that "in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." Id.

Petitioner must demonstrate that counsel's error prejudiced the defense because "[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 691-92. To meet this burden, Petitioner must show a reasonable probability that, but for counsel's unprofessional errors, he would not have pleaded guilty and would have insisted on proceeding to trial. Hill v. Lockhart, 474 U.S. 59 (1985). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.

Strickland cautions that "strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." Strickland v. Washington, 466 U.S. at 690-91. Petitionercannot meet his burden merely by showing that the avenue chosen by counsel proved unsuccessful:

The test has nothing to do with what the best lawyers would have done. Nor is the test even what most good lawyers would have done. We ask only whether some reasonable lawyer at the trial could have acted, in the circumstances, as defense counsel acted at trial.... We are not interested in grading lawyers' performances; we are interested in whether the adversarial process at trial, in fact, worked adequately.

White v. Singletary, 972 F.2d 1218, 1220-21 (11th Cir. 1992). Accord Chandler v. United States, 218 F.3d 1305,1313 (11th Cir. 2000) ("To state the obvious: the trial lawyers, in every case, could have done something more or something different. So, omissions are inevitable. . . . [T]he issue is not what is possible or 'what is prudent or appropriate, but only what is constitutionally compelled.'") (en banc) (quoting Burger v. Kemp, 483 U.S. 776, 794 (1987)).

Ground One

Petitioner contends that his trial counsel rendered ineffective assistance by not moving to suppress Petitioner's post-Miranda statements to the police about exposing himself and masturbating in front of the fourteen year-old victim. During the sentencing hearing Deputy Jeffrey Martin testified on direct examination that after he became aware on Petitioner exposing himself in the visitation area, he met with Petitioner and advised him of his Miranda rights:

Q: After advising Mr. Montas of his Miranda warnings, did he indicate that he had some problem in understanding any of those rights?

A: Yes, sir. He said he didn't understand the word silence.

Q: And what, if anything, did you do in regard to that statement by Mr. Montas?

A: I asked Mr. Montas if he was capable of reading English. He stated he could. I then provided him with the card that I had read from. He read it, or appeared to be reading it for a moment, handed it back, stated he understood what he read and agreed to speak to me.

Q: Did you discuss with him in any regard the incident which had been reported to you?

A: Yes, sir, I did.

Q: Could you please describe for the court your interview or your encounter with the defendant in regard to the incident?

A: Yes, sir. Initially I reminded Mr. Montas that the visitation is video and audio taped. He stated that he understood that. I wanted - -1 asked him about what had transpired earlier in the evening with the first visitation. He shrugged and stated he didn't know what I was talking about.

I advised him of the allegations of him removing his penis and masturbating. He shook his head and had a smile on his face until I advised him that the girl was 14, at which time he immediately stopped and said, oh no, that wasn't me.

Q: When you said he shook his head with a smile on his face, was he shaking it in an affirmative manner?

A: In an affirmative manner. Yes, sir.

(CR Dkt. 188, pp. 33-34). Petiti...