United States v. Gonzalez

• Decision Date: 23 September 2022
• Docket Number: 8:05-cr-188-SDM-AEP,8:19-cv-1033-SDM-AEP
• Parties: UNITED STATES OF AMERICA v. ANTONIO SAUL GONZALEZ
• Court: U.S. District Court — Middle District of Florida

UNITED STATES OF AMERICA
v.
ANTONIO SAUL GONZALEZ

Nos. 8:05-cr-188-SDM-AEP, 8:19-cv-1033-SDM-AEP

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

September 23, 2022

ORDER

STEVEN D. MERRYDAY UNITED STATES DISTRICT JUDGE

Antonio Saul Gonzalez moves under 28 U.S.C. § 2255 to vacate his conviction and sentence for possession with intent to distribute fifty grams or more of cocaine base, for which he is imprisoned for fifty-seven months.

Gonzalez pleaded guilty, and the district court sentenced him to 240 months followed by 120 months of supervised release. (Crim. Doc. 36) The district court granted the United States' motion under Rule 35(b), Federal Rules of Criminal Procedure, to reduce the sentence for substantial assistance and reduced the sentence to 151 months of prison. (Crim. Doc. 52) The district court granted Gonzalez's motion under 18 U.S.C. § 3582(c)(2) to retroactively apply new sentencing guidelines for crack cocaine and further reduced the sentence to seventy-six months of prison. (Crim. Doc. 69)

After Gonzalez served his prison sentence and began serving his supervised release, an information charged Gonzalez with possession with intent to distribute five-hundred or more grams of cocaine, possession with intent to distribute twenty-

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eight or more grams of cocaine base, and possession of a firearm in furtherance of a drug trafficking crime. United States v. Gonzalez, No. 8:18-cr-179-VMC-AEP (M.D. Fla.), ECF No. 1. Gonzalez pleaded guilty to the crimes and received a sentence of ninety-three months. 8:18-cr-179-VMC-AEP, ECF Nos. 3 and 29.

In this action, Gonzalez admitted violating the terms of supervised release by committing the three new crimes, by submitting three urine specimens that tested positive for the presence of cocaine, by submitting a fourth specimen that tested positive for the presence of cocaine and marijuana, by failing to truthfully respond to a question by a probation officer, and by failing to lawfully work. (Crim. Doc. 87)^[1]Gonzalez faced a sentencing guideline range of forty-six to fifty-seven months. 8:18-cr-179-VMC-AEP, ECF No. 41 at 4. The United States recommended sixty months, the statutory maximum because of the serious nature of the violations and Gonzalez's lengthy criminal history. 8:18-cr-179-VMC-AEP, ECF No. 41 at 5-8. Because of Gonzalez's acceptance of responsibility and his recent cooperation with law enforcement, trial counsel asked for a sentence concurrent with the earlier ninety-three-month sentence. 8:18-cr-179-VMC-AEP, ECF No. 41 at 8-11.

The district court revoked supervised released, sentenced Gonzalez to fifty-seven months, and ordered the sentence consecutive to the earlier sentence. (Crim. Doc. 87) Gonzalez did not appeal and instead moves under Section 2255 for

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relief.^[2] Gonzalez asserts that trial counsel was ineffective for not investigating his mental health, for not calling mental health experts to testify at the revocation hearing, and for not moving for either a downward departure or a downward variance based on his need for medical care. (Doc. 1 at 3-8)

I. INEFFECTIVE ASSISTANCE OF COUNSEL STANDARD

“‘[T]he cases in which habeas petitioners can properly prevail on the ground of ineffective assistance of counsel are few and far between.'” Waters v. Thomas, 46 F.3d 1506, 1511 (11th Cir. 1995) (quoting Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994)). Strickland v. Washington, 466 U.S. 668, 687 (1984), governs an ineffective assistance of counsel claim and places a heavy burden on a defendant:

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

“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.” Strickland, 466 U.S. at 697.

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A defendant cannot meet his burden merely by showing that the avenue chosen by counsel proved unsuccessful. White v. Singletary, 972 F.2d 1218, 1220-21 (11th Cir. 1992). “[C]ounsel 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. “[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.” 466 U.S. at 690. Strickland requires that “in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.” 466 U.S. at 690. “[S]trategic 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.” 466 U.S. at 690-91.

“An 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.” 466 U.S. at 691. To meet this burden, the defendant must show “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” 466 U.S. at 694.

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II. GROUND ONE

Gonzalez asserts that trial counsel was ineffective for not investigating his mental health, for not calling mental health experts to testify at the revocation hearing about his need for medical care, and for not moving for either a downward departure or a downward variance based on his need for medical care. (Doc. 1 at 3-8) Attached to his motion are a psychiatric evaluation from Phoenix House, which is a drug addiction treatment center, and photographs of medication prescribed to him. (Doc. 1-1) The district court required as a condition of supervised release that Gonzalez participate in a drug treatment program. (Crim. Doc. 36 at 4) The evaluation states that Gonzalez reported that he suffered from anxiety after witnessing several murders in prison and that he continued to experience anxiety after his release from prison. (Doc. 1-1 at 9)

Failure to Investigate Mental Illness

Gonzalez asserts that trial counsel was ineffective for not investigating his mental illness. Attached to Gonzalez's motion is a cover letter by trial counsel requesting medical records from Phoenix House. (Doc. 1-1 at 1) The cover letter is dated March 2, 2018, six months before Gonzalez's revocation hearing on September 4, 2018. (Crim. Doc. 87 and Doc. 1-1 at 1) Trial counsel submitted with the cover letter a medical authorization signed by Gonzalez on February 6, 2018. (Doc. 1-1 at 2-4) Phoenix House responded to trial counsel's request and disclosed the psychiatric evaluation. (Doc. 1-1 at 5-11) Gonzalez identifies no other documents that trial counsel should have discovered from further investigation.

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Because the record demonstrates that trial counsel investigated Gonzalez's mental health and because “‘[s]peculation is insufficient to carry the burden of a habeas corpus petitioner as to what evidence could have been revealed by further investigation,'” the claim is both refuted by the record and meritless. Brownlee v. Haley, 306 F.3d 1043, 1060 (11th Cir. 2002) (quoting Aldrich v. Wainwright, 777 F.2d 630, 636 (11th Cir. 1985)).

Also, the evaluation states that Gonzalez denied suffering from depression, suicidal or homicidal ideation, or psychosis. (Doc. 1-1 at 5) Gonzalez reported experiencing nightmares and feeling scared when his heart beats rapidly several times a day. (Doc. 1-1 at 5) He denied seeking treatment from a psychiatrist, taking medication, or suffering from a mental illness that required involuntary commitment. (Doc. 1-1 at 6) Also, trial counsel represented Gonzalez in the earlier criminal action.^[3] (Crim. Doc. 87) The presentence report, filed in that case on June 21, 2018, more than two months before the revocation hearing in this action, states that Gonzalez “indicated that he has no problems with either his mental or emotional health and that he has never received mental health treatment.” 8:18-cr-179-VMC-AEP, ECF No. 23 at 19.

Because Gonzalez denied suffering from mental illness and denied receiving treatment for mental illness, Gonzalez cannot demonstrate that no reasonable

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counsel would have failed to investigate his mental illness. Strickland, 466 U.S. at 691 (“[W]hen a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel's failure to pursue those investigations may not later be challenged as unreasonable.”); Chandler v. United States, 218 F.3d 1305, 1315 (11th Cir. 2000) (“[B]ecause counsel's conduct is presumed reasonable, for a petitioner to show that the conduct was unreasonable, a petitioner must establish that no competent counsel would have taken the action that his counsel did take.”).

Failure to Call Mental Health Experts

Gonzalez asserts that trial counsel should have called...