United States v. Olmeda
| Decision Date | 05 November 2014 |
| Docket Number | Case No.: 1:09cr30/MW/GRJ,Case No.: 1:12cv109/MW/GRJ |
| Court | U.S. District Court — Northern District of Florida |
| Parties | UNITED STATES OF AMERICA v. KEITH E. OLMEDA |
This matter is before the court upon Defendant's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 and supporting memorandum of law. (Doc. 44.) The Government has filed a response (Doc. 47) and Defendant filed a reply. (Doc. 50.) After a careful review of the record and the arguments presented,the Court concludes that Defendant has not raised any issue requiring an evidentiary hearing and that the § 2255 motion should be denied. See Rules Governing Section 2255 Cases 8(a) and (b).
Defendant was charged on September 23, 2009, with five counts of production of child pornography. (Doc. 1.) The five counts addressed offense conduct that was alleged to have occurred on five separate dates on which Defendant filmed his then-girlfriend's four minor children engaged in sexual acts at his direction.1 Represented by appointed counsel Darren Johnson, on November 12, 2009, Defendant entered a pleaof guilty pursuant to a written plea agreement and statement of facts. (Docs. 18-22.) The plea proceeding was unremarkable. (See Doc. 39.)
The Presentence Investigation Report ("PSR") calculated Defendant's total offense level at 47,2 and his criminal history category at I. (Doc. 38, PSR ¶¶ 19-40; 44.) The applicable guidelines range was life imprisonment. Each of the five counts individually had a statutory minimum term of 15 years and a maximum term of 30 years imprisonment. The court was not constrained by the statutory maximum on the individual counts in fashioning an appropriate sentence. Pursuant to § 5G1.2(d) of the guidelines, "if the sentence imposed on the count carrying the highest statutory maximum is less than the total punishment, then the sentence imposed on one or more of the other counts shall run consecutively, but only to the extent necessary to produce a combined sentence equal to the total punishment." U.S.S.G. § 5G1.2(d); Doc. 38, PSR ¶ 62.
At sentencing, defense counsel conceded the propriety of a lengthy prison sentence and submitted that a 360 month sentence would be sufficient but not greater than necessary under the circumstances of this case. (Doc. 40 at 3.) Defendant expressed his great remorse for his actions, and the father of one of the victims spoke briefly. (id. at 6-8.) Before imposing sentence, the court stated that it had considered the 3553(a) factors, the Guidelines and the policy statements, and that it recognized that the Guidelines were not binding upon it (id. at 10). The court also noted that it hadtailored Defendant's sentence to take into account the facts and circumstances of his particular case. (id. at 10-11.) The court sentenced Defendant to a term of 150 years imprisonment. In so doing, the court expressly stated that the sentence in this case was "equal to the life sentence recommended by the Guidelines," that it reflected the seriousness of the offense and the harm caused to the four victims, and that it was sufficient, but not greater than necessary to meet the purposes of 18 U.S.C. § 3553(a). (id. at 11.)
Defendant appealed, claiming that the court had erred in failing to advise him that the sentences could be imposed to run consecutively. The Eleventh Circuit found no error affecting Defendant's substantial rights and affirmed. (Doc. 43.)
In the present motion, defendant raises three grounds for relief, each claiming constitutional violations in his sentencing. The Government opposes the motion in its entirety.
Collateral review is not a substitute for direct appeal, and therefore 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. See 28 U.S.C. § 2255(a); McKay v. United States, 657 F.3d 1190, 1194 n. 8 (11th Cir. 2011). "Relief under 28 U.S.C. § 2255 'is reserved for transgressions ofconstitutional 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 (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. Rozier v. United States, 701 F.3d 681, 684 (11th Cir. 2012); United States v. Nyhuis, 211 F.3d 1340, 1343 (11th Cir. 2000); Mills v. United States, 36 F.3d 1052, 1056 (11th Cir. 1994). 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 (1963) ().
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, 621 (1998); McKay v.United States, 657 F.3d 1190, 1195 (11th Cir. 2011). An issue is "'available' on direct appeal when its merits can be reviewed without further factual development." Lynn, 365 F.3d at 1232 n. 14 (quoting Mills, 36 F.3d at 1055). 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, 523 U.S. at 622 (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.
In this case, each of Defendant's three claims which allege constitutional error with respect to his sentence, could have been raised on direct appeal, and each therefore is procedurally barred. A meritorious claim of ineffective assistance of counsel can constitute cause for the procedural default. See Nyhuis, 211 F.3d at 1344. Defendant did not specifically allege that counsel was constitutionally ineffective, although he explains that the reason the claims were not raised earlier is that his court appointed attorney did not raise the issues on appeal (see, e.g., doc. 44 at 7). The Government has also interpreted his motion as including an allegation of ineffective assistance of counsel, and in light of the liberal construction afforded to pro se pleadings, the court will construe Defendant's submission as incorporating a claim that counsel was constitutionally ineffective for his failure to assert these issues on appeal.
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 (2003); see also United States v. Franklin, 694 F.3d, 1, 8 (11th Cir. 2012). In order to prevail on a constitutional claim of ineffective assistance of counsel, a defendant must demonstrate both that counsel's performance was below an objective and reasonable professional norm and that he was prejudiced by this inadequacy. Strickland v. Washington, 466 U.S. 668, 686 (1984); Williams v. Taylor, 529 U.S. 362, 390 (2000); Darden v. United States, 708 F.3d 1225, 1228 (11th Cir. 2013). In applying Strickland, the court may dispose of an ineffective assistance claim if a defendant fails to carry his burden on either of the two prongs. Strickland, 466 U.S. at 697; Brown v. United States, 720 F.3d 1316, 1326 (11th Cir. 2013).
To prevail on a claim for ineffective assistance of appellate counsel, a defendant must show that (1) appellate counsel's performance was deficient, and (2) but for counsel's deficient performance he would have prevailed on appeal. Shere v. Sec'y Fla. Dep't of Corr., 537 F.3d 1304, 1310 (11th Cir.2008); see Philmore v. McNeil, 575 F.3d 1251, 1264 (11th Cir.2009) (). Counsel is clearly not ineffective for failing to raise a meritless issue on appeal. Shere, 537 F.3d at 1311; Ladd v. Jones, 864 F.2d 108, 110 (11th Cir.1989) ().
Although section 2255 mandates that the court conduct an evidentiary hearing "unless the motion and files and records conclusively show that the prisoner is entitled to no relief," a defendant must support his allegations with at least a...
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