United States v. Lamonds

Decision Date03 October 2011
Docket NumberCase No. 5:07cr48/RS,5:09cv389/RS/EMT
CourtU.S. District Court — Northern District of Florida

This matter is before the court upon Defendant's amended motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 (doc. 154). The Government has filed an "Amended Opposition to Motion to Vacate" (doc. 163), and Defendant has filed a traverse (doc. 167). The case is referred to the undersigned magistrate judge for report and recommendation pursuant to 28 U.S.C. § 636 and N.D. Fla. Loc. R. 72.2(B). After a careful review of the record and the arguments presented, it is the opinion of the undersigned that Defendant has not raised any issue requiring an evidentiary hearing, Rules Governing Section 2255 Cases 8(a) and (b), and that the motion should be denied and dismissed.


On September 11, 2007, Defendant Timothy Lamonds and Michael Allen Darden were charged with conspiracy to manufacture, distribute and possess with intent to distribute cocaine and more than fifty (50) grams of cocaine base, possession of cocaine and more than fifty (50) grams of cocaine base on a date certain, and possession of a firearm in furtherance of drug trafficking crimes (doc. 13). On November 8, 2007, a superseding indictment charged Defendant Lamonds and Bruce Theodore Smith, Jr. with conspiring together and with Michael Allen Darden to manufacture, distribute, and possess with intent to distribute cocaine and more than fifty (50) grams of cocaine base (Count One), possession of cocaine and more than fifty (50) grams of cocaine base on a datecertain (Count Four), and possession of a firearm in furtherance of a drug trafficking crime (Count Five) (doc. 40).1

Represented by appointed counsel Jonathan Wesley Dingus, Defendant was convicted as charged after a two-day jury trial (doc. 60, 61). With respect to Count One, the jury found Defendant guilty of conspiring to distribute or possess with intent to distribute an unspecified amount of cocaine and 50 grams or more of cocaine base (id. at 2). The jury found Defendant guilty of distributing or possessing with intent to distribute cocaine base as charged in Count Four, but that the offense conduct involved less than 5 grams of cocaine base (id. at 3). No special finding was required as to Count Five.

In preparing the presentence investigation report ("PSR"), the probation officer held Defendant accountable for 52.6 grams of cocaine base and 62 grams of cocaine powder (PSR ¶ 16). The marijuana equivalency was 748.8 kilograms (PSR ¶¶ 17 & 18), yielding a base offense level of 30 (PSR ¶ 25). Defendant was entitled to a two-level adjustment due to his role as a minor participant (PSR ¶ 28), but because he was considered a career offender (see PSR ¶ 33), his total offense level was 37 and his criminal history category was VI (PSR ¶¶ 35, 50). The applicable advisory guidelines range was 360 months to life on Counts One and Four, and taking into account the 60-month consecutive sentence for Count Five, the guidelines range became 420 months to life (PSR ¶ 72).

Defendant and the Government each filed sentencing memoranda (docs. 69, 70). Defendant argued that his active role in the offense conduct was limited to a single sale of less than 5 grams of cocaine base, and therefore that the harsh career offender sentence was unwarranted. He noted that the co-defendant had been sentenced to a term of only 90-months imprisonment, despite greater involvement, and he maintained that under the circumstances a sentence which did not designate him as a career offender was "sufficient but not greater than necessary to comply with" the goals of sentencing set forth in 18 U.S.C. § 3553(a)(2)" (doc. 69 at 2). The Government opposed sentencing leniency, noting that Defendant should not be rewarded merely because law enforcement hadinterrupted this criminal episode near its inception (doc. 70 at 4-5). After hearing the arguments of counsel, the court sentenced Defendant well below the guidelines to concurrent terms of 240 months imprisonment on Counts One and Four, and a consecutive 60 month term of imprisonment on Count Five (docs. 84, 105).

Defendant appealed, arguing that the district court had abused its discretion in denying his motion for mistrial after the Government commented on his post-arrest silence and that his total sentence was unreasonable (doc. 136 at 3). The Eleventh Circuit affirmed, finding that the challenged comments were not prohibited comments on Defendant's right to remain silent, and even if they were, there was no prejudice and thus no abuse of discretion in denying the motion for mistrial (doc. 136 at 5). The appellate court also found Defendant had failed to show that his below-guidelines sentence was unreasonable (id. at 8).

In the instant motion, Defendant raises multiple claims of ineffective assistance of counsel, with respect to both trial and appellate counsel. He refers in his motion to a "memorandum soon to follow" (doc. 154 at 3), but no memorandum has been filed. The Government opposes the motion in its entirety and has attempted to respond to Defendant's undeveloped allegations.


Because collateral review is not a substitute for direct appeal, the grounds for collateral attack on final judgments pursuant to § 2255 are extremely limited. A prisoner is entitled to relief under section 2255 if the court imposed a sentence that (1) violated the Constitution or laws of the United States, (2) exceeded its jurisdiction, (3) exceeded the maximum authorized by law, or (4) is otherwise subject to collateral attack. 28 U.S.C. § 2255; Thomas v. Crosby, 371 F.3d 782, 811 (11th Cir. 2004); United States v. Phillips, 225 F.3d 1198, 1199 (11th Cir. 2000). "Relief under 28 U.S.C. § 2255 'is reserved for transgressions of constitutional rights and for that narrow compass of other injury that could not have been raised in direct appeal and would, if condoned, result in a complete miscarriage of justice.'" Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004) (citations omitted). The "fundamental miscarriage of justice" exception recognized in Murray v. Carrier, 477 U.S. 478, 496, 106 S. Ct. 2678, 2649, 91 L. Ed. 2d 397 (1986), provides that it must be shown that the alleged constitutional violation "has probably resulted in the conviction of one who is actually innocent . . . ."

The law is well established that a district court need not reconsider issues raised in a section 2255 motion which have been resolved on direct appeal. United States v. Nyhuis, 211 F.3d 1340, 1343 (11th Cir. 2000); Mills v. United States, 36 F.3d 1052, 1056 (11th Cir. 1994); United States v. Rowan, 663 F.2d 1034, 1035 (11th Cir. 1981); Hidalgo v. United States, 138 Fed. Appx. 290 (11th Cir. 2005). Once a matter has been decided adversely to a defendant on direct appeal, it cannot be re-litigated in a collateral attack under section 2255. Nyhuis, 211 F.3d at 1343 (quotation omitted). Broad discretion is afforded to a court's determination of whether a particular claim has been previously raised. Sanders v. United States, 373 U.S. 1, 16, 83 S. Ct. 1068, 1077, 10 L. Ed. 2d 148 (1963) ("identical grounds may often be proved by different factual allegations . . . or supported by different legal arguments . . . or couched in different language . . . or vary in immaterial respects").

Furthermore, a motion to vacate under section 2255 is not a substitute for direct appeal, and issues which could have been raised on direct appeal are generally not actionable in a section 2255 motion and will be considered procedurally barred. Lynn, 365 F.3d at 1234-35; Bousley v. United States, 523 U.S. 614, 118 S. Ct. 1604, 1610, 140 L. Ed. 2d 828 (1998); Mills v. United States, 36 F.3d at 1055 (recognizing that a ground is "available" on direct appeal when "its merits can be reviewed without further factual development"); United States v. Frady, 456 U.S. 152, 165, 102 S. Ct. 1584, 71 L. Ed. 2d 816 (1982). Absent a showing that the ground of error was unavailable on direct appeal, a court may not consider the ground in a section 2255 motion unless the defendant establishes (1) cause for not raising the ground on direct appeal, and (2) actual prejudice resulting from the alleged error, that is, alternatively, that he is "actually innocent." Lynn, 365 F.3d at 1234; Bousley, 118 S. Ct. at 1611 (citations omitted). To show cause for procedural default, a defendant must show that "some objective factor external to the defense prevented [him] or his counsel from raising his claims on direct appeal and that this factor cannot be fairly attributable to [defendant's] own conduct." Lynn, 365 F.3d at 1235. A meritorious claim of ineffective assistance of counsel can constitute cause. See Nyhuis, 211 F.3d at 1344.

Ineffective assistance of counsel claims are generally not cognizable on direct appeal and are properly raised by a § 2255 motion regardless of whether they could have been brought on direct appeal. Massaro v. United States, 538 U.S. 500, 503, 123 S. Ct. 1690, 1693, 155 L. Ed. 2d 714(2003); see also United States v. Patterson, 595 F.3d, 1324, 1328 (11th Cir. 2010). The benchmark for judging a claim of ineffective assistance of counsel is "whether 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 v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). To show a violation of his constitutional right to counsel, defendant must demonstrate both that counsel's performance was below an objective and reasonable professional norm and that he was prejudiced by this inadequacy. Id., 466 U.S. 668, 686, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d (1984); Williams v. Taylor, 529 U.S. 362, 390, 120 S. Ct. 1495, 1511, 146 L. Ed. 2d 389 (2000); Gaskin v. Secretary, Dept....

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