Thrower v. US, 94-1887-CIV-T-17

• Decision Date: 26 October 1995
• Docket Number: 90-209-CR-T-17.,No. 94-1887-CIV-T-17,94-1887-CIV-T-17
• Citation: 911 F. Supp. 1472
• Parties: Jesse Allen THROWER, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — Middle District of Florida

911 F. Supp. 1472

Jesse Allen THROWER, Petitioner, v. UNITED STATES of America, Respondent.

Nos. 94-1887-CIV-T-17, 90-209-CR-T-17.

United States District Court, M.D. Florida, Tampa Division.

October 26, 1995.

COPYRIGHT MATERIAL OMITTED

Jesse Allen Thrower, pro se.

Dennis I. Moore, Tampa, FL, for U.S.

ORDER

KOVACHEVICH, District Judge.

Petitioner, Jesse Allen Thrower, a pro se litigant, filed a writ of Habeas Corpus (Docket No. 124) pursuant to Title 28, United States Code § 2255 on November 25, 1994. Respondent filed a response (Docket No. 130), in which Respondent incorporates a request to dismiss the petition, on May 19, 1995.

PROCEDURAL HISTORY

A Superseding Indictment was returned on February 6, 1991 charging the Petitioner with one count of conspiracy to possess with intent to distribute methamphetamine and amphetamine hydrochloride in violation of 21 U.S.C. § 846. A second count charged the Petitioner with possession with intent to distribute amphetamine hydrochloride in violation of 21 U.S.C. § 841(a)(1).

A plea agreement was filed on February 11, 1991. Petitioner pled guilty to Counts One and Two of the Superseding Indictment on February 11, 1991. On May 3, 1991, Petitioner was sentenced to 63 months imprisonment, followed by three years supervised release on each count, to run concurrently.

Petitioner did not file a direct appeal from the judgment of conviction but on November 25, 1994 after serving 42 months of his 63 month sentence, he filed a Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255. Petitioner prays that this Court grant an evidentiary hearing in this matter and requests appointment of counsel to represent him. Petitioner further requests that this Court grant bond pending the resolution of his 2255 Motion, or in the alternative, redesignation of confinement.

Petitioner challenges his conviction on eight grounds, claiming ineffective assistance of his privately retained counsel:

(1) Counsel was ineffective where he failed to appreciate and advise Petitioner of the true significance of the statutory and guideline penalty provisions and to investigate potential defense so Petitioner could have made an informed decision to plead or not to plead;

(2) Counsel was ineffective by allowing Petitioner to plead guilty without knowledge of the consequences, thereby creating an involuntary guilty plea;

(3) Counsel was ineffective by allowing the Government to violate the plea agreement including its duty of good faith and fair dealings by failing to fully advise the Court of Petitioner's substantial assistance, and failing to file a Rule 35(b) within a year;

(4) Counsel was ineffective where he failed to correctly argue for further reduction of sentence as a minor participant for 4 points;

(5) Counsel was ineffective where he failed to present himself without intimidation to the sentencing judge;

(6) Counsel was ineffective where he failed to argue relevant conduct;

(7) Counsel was ineffective where he failed to argue the use of methamphetamine instead of amphetamine, and argue the "generic" use of methamphetamine; and

(8) Counsel was ineffective where he failed to file an appeal.

DISCUSSION

In Strickland v. Washington, 466 U.S. 668, 698, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Court stated that ineffective assistance of counsel claims fall into two categories. The first category involves claims that the government violated the defendant's right to effective assistance of counsel by impermissibly interfering with counsel's ability to make independent decisions about how to conduct the defense. Strickland, 466 U.S. at 686, 104 S.Ct. at 2063-64. In the second category are claims that the defendant was deprived of his right to the effective assistance of counsel because his counsel, whether retained or appointed, simply failed to provide adequate legal assistance. Claims in the second category are called "actual ineffectiveness claims." Id.

The Supreme Court established a two-pronged test for evaluating "actual ineffectiveness" claims. Under the first prong, a reviewing court must determine whether counsel's performance was so deficient that he was not functioning as the "counsel" guaranteed by the Sixth Amendment. Under the second prong, the court must determine whether counsel's performance, if deficient, prejudiced the defense. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. In order to sustain an "actual ineffectiveness" claim, the defendant must prevail on both the performance and prejudice prongs.

Under Strickland guidelines for reviewing performance, the convicted defendant must identify the specific acts or omissions he alleges were not the result of reasonable professional judgment on the part of his counsel. The court then must decide whether, in light of all of the circumstances facing trial counsel, his conduct fell within the wide range of professionally competent assistance expected of an attorney. Id. at 690, 104 S.Ct. at 2066. Counsel "is strongly presumed to have rendered adequate assistance and to have made all significant decisions in the exercise of reasonable professional judgment." Id. Therefore, Petitioner bears the burden of showing, first, that counsel's performance was constitutionally deficient and, second, that the deficient performance was prejudicial.

The Sixth Amendment guarantees a criminal defendant the right to effective, not errorless, counsel. Young v. Zant, 677 F.2d 792, 798 (11th Cir.1982); Mylar v. Alabama, 671 F.2d 1299, 1300 (11th Cir.1982). It does, however, require that counsel's conduct fall within the range of competency, generally demanded of attorneys in criminal cases. McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763 (1970); accord, Beckham v. Wainwright, 639 F.2d 262, 267 (5th Cir.1981).

In order to apply the "Strickland standard," the Court must inquire into the actual performance of defense counsel and determine whether representation was reasonably effective based on the totality of the circumstances in the entire record. Washington v. Watkins, 655 F.2d 1346, 1355 (5th Cir.1981); Goodwin v. Balkcom, 684 F.2d 794, 804 (11th Cir.1982) cert. denied, 460 U.S. 1098, 103 S.Ct. 1798, 76 L.Ed.2d 364 (1983).

Ground One

In Ground One, Petitioner claims that his trial counsel was ineffective in that counsel failed to appreciate and advise Petitioner of the true significance of the statutory and guideline penalty provisions, and to investigate potential defenses, so Petitioner could have made an informed decision to plead or not to plead. Petitioner further claims that he expected a sentence of three years, but instead he received 63 months.

The fact that Petitioner, who had been represented by competent counsel and thoroughly understood what he was doing in entering a plea of guilty to an indictment, received a longer sentence than he thought that he should have, is not a basis for vacating sentence, where no promises had been made to him by prosecution or the judge. Tabor v. U.S., 203 F.2d 948 (5th Cir.1953), cert. denied 345 U.S. 1001, 73 S.Ct. 1148, 97 L.Ed. 1407.

A review of the plea transcript, on page 4, reflects that Petitioner was asked by this Court to examine the proposed plea agreement, the initials on each page and the signature on the signature page to ensure that those were his. Petitioner affirmatively responded that the initials and the signature were his. Petitioner further acknowledged to the Court that he and his attorney have discussed the sentencing guidelines and that he understood how the guidelines would apply to his case.

Further, the plea proceeding transcript, on pages 13-14, reflects the following:

"THE COURT: All right. Do you know what the possible, possible maximum sentence is that you could receive? Do you know what it is?

"THE DEFENDANT: Yes, ma'am, me and my lawyer have been over it.

"THE COURT: Okay, well, do you know in count one it's twenty years and a fine of one million dollars, and the term of supervised release of three years, do you understand that?

"THE DEFENDANT: (Witness indicating affirmatively.)

"THE COURT: Yes?

"THE DEFENDANT: Yes, ma'am.

"THE COURT: And the maximum under count two is another twenty years, and the fine of one million dollars and the term of supervised release of three years, do you understand that?

"THE DEFENDANT: Yes, ma'am.

"THE COURT: So the maximum exposure by the statute if you added one plus one would be forty years, two million dollars, and three years supervised release, do you understand that?

"THE DEFENDANT: Yes, ma'am, I do.

"THE COURT: All right, now, this is a Sentencing Commission Guidelines case. Mr. Scott, have you gone over with your client how the Sentencing Commission Guidelines might apply to his case?

"MR. SCOTT (Defense Counsel): Yes, Your Honor.

"THE COURT: Is that true, Mr. Thrower?

"THE DEFENDANT: Yes, ma'am.

"THE COURT: Do you understand that, Mr. Thrower?

"THE DEFENDANT: Yes, ma'am.

"THE COURT: Do you understand that the Court will not be able to determine the exact guideline sentence for your case until after the pre-sentence report has been completed and you and the Government have had an opportunity to challenge the facts reported by the Probation Officer, understand that?

"THE DEFENDANT: Yes, ma'am.

"THE COURT: Do you also understand that after it's been determined that guideline applies to your case, the Court had the authority in some circumstances to impose a sentence that is more severe or less severe than the sentence called for by the guidelines, do you understand that?

"THE DEFENDANT: Yes, ma'am.

"THE COURT: Do you also understand that under some circumstances you or the Government may have the right to appeal any sentence that the Court imposes, understand that?

"THE DEFENDANT: Yes, ma'am.

"THE COURT: Okay. Do you also understand that if the sentence is more severe than you expect, you'll still be bound by your plea and will have no right to withdraw it,...