United States v. Futrell

Decision Date12 August 2020
Docket Number3:19-CV-266,3:16-CR-54
CourtU.S. District Court — Middle District of Pennsylvania



Presently before the court for disposition is Defendant Jule Futrell's pro se motion to vacate and correct his sentence under 28 U.S.C. § 2255. (Doc. 154). For the reasons stated herein, Defendant's motion will be denied and no certificate of appealability will issue.


Defendant was originally charged with various federal crimes through the filing of a criminal complaint on February 12, 2015. (Doc. 1, Complaint). A four-count Information was subsequently filed against Defendant on March 9, 2016, which charged him with the following crimes: (1) Armed Bank Robbery by Force, Violence, and Intimidation in violation of 18 U.S.C. § 2113(d), relating to an incident that occurred at the First National Community Bank ("FNCB") in Pittston, Pennsylvania on March 13, 2014 ("Count 1"); Armed Bank Robbery by Force, Violence, and Intimidation in violation of 18 U.S.C. § 2113(d), relating to an incident that occurred at the NBT Bank in Scranton, Pennsylvania on November 26, 2014 ("Count 2"); Robbery of Controlled Substances in violation of 18 U.S.C. § 2118(a), relating to an incident that occurred at the CVS Pharmacy in East Stroudsburg, Pennsylvania on April 18, 2014 ("Count 3"); and Brandishing a Firearm in Relation to, and in Furtherance of, a Crime of Violence in violation of 18 U.S.C. § 924(c), relating to the November 26, 2014 robbery at NBT Bank ("Count 4"). (Doc. 95, Information).

On March 21, 2016, pursuant to the terms of a sealed written plea agreement (the "Plea Agreement"), Defendant pleaded guilty to the charges set forth in the Information. (Doc. 98, Plea Agreement; Doc. 109, Guilty Plea). The United States Probation Office then prepared a Presentence Investigation Report ("PSR") regarding Defendant. (Doc. 121, PSR). Based on at least two prior convictions, the PSR designated Defendant as a "career offender" pursuant to § 4B1.1(a), (b)(2) and (c)(2)(A) of the United States Sentencing Guidelines Manual (the "Guidelines" or "U.S.S.G."). (Id., at 15-17). Through his counsel, Defendant filed objections to the PSR and his career offender classification. (Doc. 122, Addendum to PSR). Defendant's counsel withdrew these objections, however, at Defendant's sentencing hearing held on July 12, 2017. (Doc. 146, Sentencing Transcript, July 12, 2017, at 2-3). The Court sentenced Defendant to a two hundred eight (208) month-term of imprisonment, which comprised of the following: one hundred twenty-four (124) months with respect to Counts 1, 2, and 3, to run concurrently; and eighty-four (84) months with respect to Count 4, to run consecutively to Counts 1, 2, and 3. (Doc. 142, Judgment).

On February 14, 2019, Defendant filed the instant pro se motion to vacate, set aside or correct sentence under 28 U.S.C. § 2255, followed by a supporting Memorandum of Law on March 25, 2019. (Doc. 154; Doc. 162, Br. in Supp.). In his motion, Defendant raises five(5) ineffective assistance of counsel claims against his trial attorney, Thomas Sundmaker ("Attorney Sundmaker" or "Trial Counsel"). Defendant also raises one (1) ineffective assistance of counsel claim against his appellate attorney, Christy Martin ("Attorney Martin" or "Appellate Counsel"). The Government filed a brief in opposition on May 20, 2019 and answered that Defendant's grounds for relief are without merit. (Doc. 170, Br. in Opp'n). After a lengthy procedural history, Defendant filed a reply brief on November 6, 2019 (Doc. 188, Reply), bringing this case to its present posture.


As Defendant brings his motion under 28 U.S.C. § 2255, we have jurisdiction under 28 U.S.C. § 1331 ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States."). The court also has jurisdiction pursuant to 28 U.S.C. § 2241 ("Writs of habeas corpus may be granted by . . . the district courts[.]").


A federal prisoner in custody under the sentence of a federal court may, within one year from when the judgment becomes final, move the sentencing court to "vacate, set aside, or correct" a sentence "imposed in violation of the Constitution or laws of the United States." 28 U.S.C. § 2255(a). A federal prisoner may also file a § 2255 motion within one year from "[t]he date on which the right asserted was initially recognized by the Supreme Court, if that right was newly recognized by the Supreme Court and made retroactivelyapplicable to cases on collateral review." 28 U.S.C. § 2255(f)(3). A § 2255 motion may attack a federal prisoner's sentence on any of the following grounds: (1) the judgment was rendered without jurisdiction; (2) the sentence imposed was not authorized by law or otherwise open to collateral attack; or (3) there has been such a denial or infringement of the Constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack. 28 U.S.C. § 2255(b).

Section 2255 does not, however, afford a remedy for all errors that may have been made at trial or sentencing. United States v. Essig, 10 F.3d 968, 977 n.25 (3d Cir. 1993). Rather, § 2255 permits relief for an error of law or fact constituting a "fundamental defect which inherently results in complete miscarriage of justice." United States v. Eakman, 378 F.3d 294, 298 (3d Cir. 2004) (citing United States v. Addonizio, 442 U.S. 178, 185 (1979)). If the court determines that the sentence was not authorized by law, was unconstitutional, or is otherwise open to collateral attack, the court may vacate the judgment, resentence the prisoner, or grant the prisoner a new trial as appropriate. See 28 U.S.C. § 2255(b).

Generally, the petitioner bears the burden of proof in § 2255 proceedings. See United States v. Hollis, 569 F.2d 199, 205 (3d Cir. 1977). However, in cases that involve predicate offenses supporting a petitioner's career offender status, courts have determined that the burden remains with the government to show the validity of the career offender designation. United States v. Harris, 205 F. Supp. 3d 651, 662 (M.D. Pa. 2016); United States v. Evans, No. 02-CR-1, 2015 WL 9480097, at *2 (W.D. Pa. Dec. 29, 2015).A. Standard of Review for Ineffective Assistance of Counsel Claims

As mentioned supra, the instant petition raises issues of ineffectiveness of counsel. The Sixth Amendment to the United States Constitution guarantees criminal defendants the right to counsel. U.S. CONST. AMEND. VI. In Strickland v. Washington, the United States Supreme Court determined that "'the right to counsel is the right to the effective assistance of counsel.'" 466 U.S. 668, 686 (1984) (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)). Counsel is ineffective when "counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland, 466 U.S. at 686. As such, to succeed on an ineffectiveness claim under Strickland, a defendant must convince the court of two factors: 1) deficient performance by counsel; and 2) prejudice from that deficient performance. Id. at 687.

Satisfying the first factor requires a "showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. In assessing an attorney's performance, courts apply a highly deferential level of scrutiny. See Marshall v. Cathel, 428 F.3d 452, 462 (3d Cir. 2005) (quoting Strickland, 466 U.S. at 689). This deference is afforded because "counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, 466 U.S. at 690.

To satisfy the second factor, "the defendant must show that the deficient performance prejudiced the defense" by demonstrating that "counsel's errors were soserious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. Put another way, "the party claiming ineffective assistance 'must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Campbell v. Burris, 515 F.3d 172, 184 (3d Cir. 2008) (quoting Strickland, 422 U.S. at 694). "In the sentencing context, prejudice exists where the deficient performance affected a defendant's sentence." United States v. Hankerson, 496 F.3d 303, 310-11 (3d Cir. 2007) (citing Glover v. United States, 531 U.S. 198, 203-04 (2001)); see e.g. United States v. Otero, 502 F.3d 331, 337 (3d Cir. 2007) (finding that "[t]he prejudice prong is satisfied 'when a deficiency by counsel resulted in a specific, demonstrable enhancement in sentencing . . . which would not have occurred but for counsel's error"). However, "'[i]t is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceedings . . . not every error that conceivably could have influenced the outcome undermines the reliability of the proceeding.'" Id. (quoting Strickland, 466 U.S. at 693).

Further, counsel cannot be held to be ineffective for failing to pursue a meritless issue. Werts v. Vaughan, 228 F.3d 178, 203 (3d Cir. 2000). In nearly all cases, relief under § 2255 for ineffectiveness of counsel is only available to defendants who make adequate showings with respect to both factors of the Strickland test. See Strickland, 466 U.S. at 686. "Where the record is sufficient to allow determination of ineffective assistance of counsel, an evidentiary hearing to develop the facts is not needed." United States v.Headley, 923 F.2d 1079, 1083 (3d Cir. 1991) (citing Government of Virgin Islands v. Zepp, 748 F.2d 125, 133 (3d Cir.1984)); see also Campbell, 515 F.3d at 183 ("'[T]o merit a hearing, a claim for...

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