United States v. Broussard, DOCKET NO. 2:11 CR 00108-001
| Decision Date | 29 April 2013 |
| Docket Number | DOCKET NO. 2:11 CR 00108-001 |
| Parties | UNITED STATES OF AMERICA v. STEPHEN BROUSSARD |
| Court | U.S. District Court — Western District of Louisiana |
Presently before the court is a Motion under 28 U.S.C. §2255 to Vacate, Set Aside, or Correct a Sentence (Rec. Doc. 36) filed by the defendant, Stephen Broussard ("Broussard"). The motion has been opposed (Rec. Doc. 46) by the Government and the defendant filed a reply (Rec. Doc. 49). This matter is fully briefed and ready for disposition.
The defendant argues ineffective assistance of counsel. To support his assertion of ineffective assistance of counsel, Broussard argues that his guilty plea was invalid because his counsel1 was so incompetent that he was incapable of advising the defendant properly. Broussard asserts that neither he nor his counsel understood the statutes governing the charges in the indictment nor the sentencing guidelines applicable to his sentence. Broussard asserts specifically that his counsel, Sanchez, was ineffective because he allowed the defendant to be overcharged as a "receiver"rather than a "possessor" of child pornography; told Broussard that he could not win at trial because child pornography cases are emotional; he advised Broussard against engaging a forensic analyst; advised the defendant not to object to the enhancements; and refused to file a motion to dismiss the receiptcharges.
Defendant was indicted on May 12, 2011 with one count of possession of child pornography in violation of 18 U.S.C. §2252A(a)(5)(B) and with three counts of receiving child pornography in violation of 18 U.S.C. §2252A(a)(2)(A). On November 3, 2011, the defendant entered a guilty plea to Count 2 pursuant to a written plea agreement (Doc. 24).
At sentencing, Broussard's offense level was 34 with a criminal history category of I yielding a guideline sentencing range of 151to 188 months imprisonment to be followed by a supervised release range of five years to life. In response to his defense counsel's sentencing memorandum with the attached psychiatric report, this court departed downward from the defendant's guidelines sentencing range and imposed a term of 120 months imprisonment to be followed by a ten-year term of supervised release (Doc. 45, p. 3).
The judgment was entered on March 9, 2012 and Broussard did not appeal (Doc. 31). This motion to vacate under 28 U.S.C. §2255 is Broussard's first challenge to his conviction or sentence.
The facts are summarized in the government's Reply and are specifically adopted by the court. They will not be reiterated here.
At his Rule 11 hearing, Broussard acknowledged an understanding of the offense and the essential elements required to convict him of the offense (Doc.24-3;Doc.43,p.5). The defendant acknowledged that these essential elements would have to be proven at trial and acknowledged thestipulated factual basis for his guilty plea as true before pleading guilty to the charge of receiving child pornography (Doc. 43, pp. 10- 11).
During the course of his guilty plea colloquy, the defendant further acknowledged that his guilty plea to this offense would result in a mandatory minimum term of imprisonment of not less than five years and up to 20 years (Doc.43, p.6). This court also explained to the defendant the rights that he was waiving by pleading guilty to include his right to trial before a jury and to require the government to prove its case beyond a reasonable doubt, his right to be represented by appointed counsel during that trial and to confront the witnesses against him and to subpoena and call witnesses to testify in his behalf and further that he could not be required to testify against himself, but if he wished to testify he could do so (Doc.43,pp.7-8). The undersigned also explained that by going to trial, he preserved his right to appeal the verdict of guilty, but by pleading guilty he admits his guilt so in essence waives the right to appeal the verdict of guilty. This court further explained that even if he could not afford counsel, he has the right to counsel of choice or court appointed counsel if he cannot afford counsel. After advising defendant of all the rights he was waiving by pleading guilty, the undersigned asked him if anyone had forced him, threatened him or coerced him in any way to enter this plea and defendant, under oath replied, "No" (Doc. 43, p. 9).
The only issues cognizable under 28 U.S.C. § 2255 are jurisdictional and constitutional issues, and in rare circumstances non-constitutional and non-jurisdictional errors, not raised on appeal, which could result in a "complete miscarriage of justice." United States v. Cervantes, 132 F.3d 1106, 1109 (5th Cir. 1998); United States v. Seyfert, 67 F.3d 544, 546 (5th Cir. 1996); United States v. Smith, 32 F.3d 194, 196 (5th Cir. 1994).
Collateral review is fundamentally different from and may not replace a direct appeal. United States v. Frady, 456 U.S. 152, 102 S. Ct. 1584, 71 L.Ed.2d 816 (1982); United States v. Shaid, 937 F.2d 228, 231 (5th Cir. 1991) (en banc). Even if the issues are constitutional or jurisdictional, the defendant may be procedurally barred from raising them collaterally. A defendant may not raise an "issue [constitutional or jurisdictional in nature] for the first time on collateral review without showing both 'cause' for his procedural default, and 'actual prejudice' resulting from the error." United States v. Segler, 37 F.3d 1131, 1133 (5th Cir. 1994) (citing Shaid, 937 F.2d at 232); United States v. Walker, 68 F.3d 931, 934 (5th Cir. 1995). Broussard has not established cause and prejudice.
Even if a defendant cannot establish "cause" and "prejudice," he may still be entitled to relief under § 2255 if there is a constitutional error which would result in a complete miscarriage of justice. Murray v. Carrier, 477 U.S. 478, 495-96, 106 S. Ct. 2639, 2649, 91 L.Ed.2d 397 (1986); Bousley v. United States, 523 U.S. 614, 620-2, 118 S. Ct. 1604, 1610-1611, 140 L.Ed.2d 828 (1998); United States v. Ward, 55 F.3d 412, 414 (5th Cir. 1995); Shaid, 937 F.2d at 232; United States v. Pierce, 959 F.2d 1297, 1301 (5th Cir. 1992); United States v. Hicks, 945 F.2d 107, 108 (5th Cir. 1991). Such a miscarriage of justice would result if the error caused the defendant to be convicted of a crime of which he is innocent. Shaid, 937 F.2d at 232; United States v. Williams, No. 05-30014-01, 2008 WL 5532099, *2 (W.D.La. 12/04/2008). Although Broussard argues that he is innocent of the "receipt" charges, because his sentence was within the guideline range applicable to "possession," he was not prejudiced.
The issues raised by the defendant in his §2255 motion were not raised on direct appeal. The Supreme Court has strictly limited the circumstances under which a guilty plea may be attacked oncollateral review. "It is well settled that a voluntary and intelligent plea of guilty made by an accused person, who has been advised by competent counsel, may not be collaterally attacked." Mabry v. Johnson, 467 U.S. 504, 508, 104 S.Ct. 2543, 2546-2547, 81 L.Ed.2d 437 (1984) (footnote omitted). Even the voluntariness and intelligence of a guilty plea can be attacked on collateral review only if first challenged on direct review. Habeas review is an extraordinary remedy and " 'will not be allowed to do service for an appeal.'" Reed v. Farley, 512 U.S. 339, 354, 114 S.Ct. 2291,2300, 129 L.Ed.2d 277 (1994) (quoting Sunal v. Large, 332 U.S. 174, 178, 67 S.Ct. 1588, 1590-1591,91 L.Ed. 1982 (1947)). Indeed, "the concern with finality served by the limitation on collateral attack has special force with respect to convictions based on guilty pleas." United States v. Timmreck, 441 U.S. 780, 784, 99 S.Ct. 2085, 2087, 60 L.Ed.2d 634 (1979). In this case, Broussard did not challenge the validity of his plea on direct appeal. In failing to do so, petitioner procedurally defaulted that claim. Bousley v. United States, 523 U.S. 614, 621, 118 S.Ct. 1604, 1610 (1998).
Broussard argues ineffective assistance of counsel in his §2255 motion. An ineffective assistance of counsel claim can be considered under 28 U.S.C. § 2255. United States v. Gaudet, 81 F.3d 585, 589 (5th Cir. 1996); United States v. Navejar, 963 F.2d 733, 735 (5th Cir. 1992).
Evaluating whether counsel was ineffective is subject to the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984). The test requires first, "a showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed by the Sixth Amendment," and second, a showing that the deficient performance so prejudiced the defense that the defendant was deprived of a fair and reasonable trial. Uresti v. Lynaugh, 821 F.2d 1099, 1101 (5th Cir. 1987) (quoting Strickland, 466 U.S. at 687, 104 S. Ct. at 2064); United States v. Gibson, 985 F.2d 212, 215 (5th Cir. 1993). The burden thatStrickland poses on a defendant is severe. Proctor v. Butler, 831 F.2d 1251, 1255 (5th Cir. 1987).
One way to satisfy the deficiency prong of the Strickland test is for the defendant to demonstrate that counsel's representation fell below an objective standard of reasonableness as measured by prevailing professional standards. Martin v. McCotter, 798 F.2d 813, 816 (5th Cir. 1986), cert. den., 107 S. Ct. 934, 479 U.S. 1056, 93 L.Ed.2d 985 (1987). Given the almost infinite variety of trial techniques and strategies available to counsel, this court must be careful not to second- guess legitimate strategic choices which may now, in retrospect, seem questionable or even unreasonable. The Fifth Circuit has stressed that, "great deference is given to counsel, 'strongly presuming that counsel has exercised reasonable professional judgment.'" Id. at 816 (quoting Lockart v. McCotter, 782 F.2d 1275,1279 (5th Cir. 1986), cert. den., 479 U.S. 1030...
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