United States v. Lodrig
| Decision Date | 01 April 2020 |
| Docket Number | CRIMINAL ACTION NO. 12-198 SECTION "R" |
| Parties | UNITED STATES OF AMERICA v. TERRANCE LODRIG |
| Court | U.S. District Court — Eastern District of Louisiana |
Defendant Terrance Lodrig moves to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255.1 Upon review of the entire record, the Court has determined that this matter can be decided without an evidentiary hearing. For the following reasons, the Court denies the motion.
On May 9, 2013, Lodrig was charged with several crimes related to an armed bank robbery conspiracy.2 On January 14, 2014, Lodrig pleaded guilty to (1) conspiracy to commit armed bank robbery; (2) armed bank robbery; (3) conspiracy to make false statements; and (4) conspiracy to commit money laundering.3 Under the terms of Lodrig's plea agreement, he waived his right to appeal and collaterally challenge his conviction and sentence.4He also waived right to raise a claim of ineffective assistance of counsel in an appropriate proceeding, but the government has agreed not to assert this waiver as to any IAC claim.5 On November 16, 2016, this Court sentenced Lodrig to 112 months of imprisonment.6 In imposing this sentence, the Court granted a significant departure from the guideline range of 140-175 months for reasons not at issue here.
On August 28, 2017, Lodrig filed a pro se motion in which he stated that he would like counsel appointed to file his direct appeal.7 He asserted that he asked his counsel to file his direct appeal, and his counsel ignored him.8 The Court referred Lodrig's motion to the Criminal Duty Magistrate Judge for determination of counsel.9 The Court also construed plaintiff's motion as a notice of appeal, and it was docketed with the Fifth Circuit Court of Appeals.10 On December 5, 2017, Lodrig's appointed counsel filed a motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct Lodrig'ssentence.11 Defendant asserted that the August 28, 2017, motion should properly have been construed as a motion for an out-of-time appeal based on ineffective assistance of counsel.12
Almost four months later, on March 30, 2018, defendant filed a supplemental motion amending his habeas corpus petition to include a sentencing-related ineffective assistance of counsel claim.13 In this motion, defendant argued that his counsel failed to properly investigate Lodrig's family situation as it related to his daughter, Ty'Jai, and to introduce evidence at his sentencing hearing in support of a motion for a downward departure or variance. Specifically, defendant argues that defense counsel did not introduce readily-available evidence of Ty'Jai's mental and behavioral issues, or evidence that she was not living with her mother, Joshlyn Jayna Guy, who used drugs and had mental health issues of her own.14 Defendant also asserts that a proper investigation would have revealed that Ty'Jai's mother attempted to kill her, and that Ty'Jai was now in the Texas foster care system, where she was failing to acclimate.15 Although defendant's counsel did move for a downward departure orvariance on the basis of Lodrig's family situation at the time of sentencing,16 defendant contends that there is a reasonable probability that had this evidence been introduced in support of that motion, Lodrig would have received a lesser sentence.
The Court ordered an evidentiary hearing to resolve Lodrig's failure-to-appeal IAC claim.17 Lodrig then withdrew his failure-to-appeal IAC claim and elected to proceed on only his sentencing-related IAC claim.18 The Court therefore considers only Lodrig's sentencing-related IAC claim.
Section 2255 of Title 28 of the United States Code provides that a federal prisoner serving a court-imposed sentence "may move the court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. § 2255(a). Only a narrow set of claims are cognizable on a Section 2255 motion. The statute identifies four bases on which a motion may be made: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose thesentence; (3) the sentence exceeds the statutory maximum sentence; or (4) the sentence is "otherwise subject to collateral attack." Id. A claim of error that is neither constitutional nor jurisdictional is not cognizable in a Section 2255 proceeding unless the error constitutes "a fundamental defect which inherently results in a complete miscarriage of justice." United States v. Addonizio, 442 U.S. 178, 185 (1979) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)).
When a Section 2255 motion is filed, the district court must first conduct a preliminary review. "If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion . . . ." Rules Governing Section 2255 Proceedings, Rule 4(b). If the motion raises a non-frivolous claim to relief, the court must order the Government to file a response or to take other appropriate action. Id. The judge may then order the parties to expand the record as necessary and, if good cause is shown, authorize limited discovery. Id., Rules 6-7.
After reviewing the Government's answer, any transcripts and records of prior proceedings, and any supplementary materials submitted by the parties, the court must determine whether an evidentiary hearing is warranted. Id., Rule 8. An evidentiary hearing must be held "[u]nless themotion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b). No evidentiary hearing is required if the prisoner fails to produce any "independent indicia of the likely merit of [his] allegations." United States v. Edwards, 442 F.3d 258, 264 (5th Cir. 2006) (quoting United States v. Cervantes, 132 F.3d 1106, 1110 (5th Cir. 1998)).
Ultimately, the petitioner bears the burden of establishing his claims of error by a preponderance of the evidence. Wright v. United States, 624 F.2d 557, 558 (5th Cir. 1980). For certain "structural" errors, relief follows automatically once the error is proved. Brecht v. Abrahamson, 507 U.S. 619, 629-30 (1993). For other "trial" errors, the court may grant relief only if the error "had substantial and injurious effect or influence" in determining the outcome of the case. Id. at 637-38 (citation omitted); see also United States v. Chavez, 193 F.3d 375, 379 (5th Cir. 1999) (). If the court finds that the prisoner is entitled to relief, it "shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate." 28 U.S.C. § 2255(b).
To establish a claim of constitutionally ineffective assistance of counsel, a petitioner must show both (1) that counsel's performance fell below an objective standard of reasonableness, and (2) that but for counsel's deficient performance, the likely outcome of the proceeding would have been different. See Strickland v. Washington, 466 U.S. 668, 687-96 (1984). The petitioner must meet both prongs of the Strickland test and, if the Court finds that the petitioner has made an insufficient showing as to either prong, the Court may dispose of the claim without addressing the other prong. See id. at 697.
As to the first prong of the Strickland test, counsel's performance must be compared to "an objective standard of reasonableness, mindful of the strong presumption of adequacy." Green v. Johnson, 116 F.3d 1115, 1122 (5th Cir. 1997). A court should not find inadequate representation merely because, with the benefit of hindsight, the court disagrees with counsel's strategic choices. Id. The Fifth Circuit has made clear that "[a] conscious and informed decision on trial tactics and strategy cannot be the basis for constitutionally ineffective assistance of counsel unless it is so ill chosen that it permeates the entire trial with obvious unfairness." Id. (quoting Garland v. Maggio, 717 F.2d 199, 206 (5th Cir. 1983)). As to the second Stricklandprong, a petitioner must show Strickland, 466 U.S. at 694.
The government argues that Lodrig's sentencing-related IAC claim should be dismissed as untimely. There is a one-year statute of limitation for Section 2255 claims, which begins to run on "the date on which the judgment of conviction becomes final." 28 U.S.C. § 2255(f)(1). Although the statute includes certain exceptions that extend the statute of limitations, none is applicable here. Defendant's judgment became final on December 5, 2016, two weeks after his November 21, 2016 judgment was entered. See Fed. R. App. P. 4(b)(1) (). Once the statute of limitations has passed, a petition may be amended only if it relates back to the original petition pursuant to Rule 15 of the Federal Rules of Civil Procedure. See United States v. Gonzales, 592 F.3d 675, 679 (5th Cir. 2009) (). Thegovernment contends that defendant's sentencing-related IAC claim, which was filed on March 30, 2018—over three months after the limitations period ran—is therefore untimely and does not relate back to defendant's bare-bones December 5, 2017 filing. The government further argues that there are no circumstances that merit tolling here.
The government is correct that defendant's March 30, 2018, sentencing-related IAC claim does not relate back...
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