United States v. Padgett, Case No.: 4:10cr46/MW/GRJ

CourtUnited States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Florida
Writing for the CourtGARY R. JONES United States Magistrate Judge
Docket NumberCase No.: 4:13cv687/MW/GRJ,Case No.: 4:10cr46/MW/GRJ
Decision Date22 February 2017


Case No.: 4:10cr46/MW/GRJ
Case No.: 4:13cv687/MW/GRJ


February 22, 2017


This matter is before the court upon Petitioner's amended motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 and supporting memorandum of law. (ECF Nos. 145, 150.) The Government filed a response (ECF No. 158) and Petitioner filed a reply. (ECF No. 160.) After review of the record, the undersigned concluded that Petitioner had not raised any issue requiring an evidentiary hearing and recommended that the § 2255 motion be denied. (ECF No. 179.) Petitioner filed objections to the recommendation and the district judge remanded the case for consideration of an issue raised for the first time in Petitioner's objections, relating to Ground One of his motion. (ECF Nos. 180, 181.) The Government has now filed a response, as directed (ECF No. 185), and

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Petitioner has filed a reply. (ECF No. 187.) After review of Petitioner's objections and the parties' new submissions, it remains the recommendation of this court that Petitioner's motion to vacate should be denied.


Petitioner Franco Nicholas Padgett was charged along with Christy Jean Bailor in a two count indictment with conspiracy to commit burglary with the intent to steal controlled substances in violation of 18 U.S.C. § 2118(d), and possession with intent to distribute controlled substances listed under schedule II, which substances were stolen from the Eastwood Pharmacy in Tallahassee, Florida in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), 841(b)(1)(E)(i), and 841(b)(2), and 18 U.S.C. § 2. (ECF No. 1.) Bailor, who used to work at the pharmacy, provided information about the layout of the pharmacy, which was used by Shane Eugene Maxwell, Holli Prather, Petitioner, and Sarah Padgett, Petitioner's sister, to plan the burglary.1 Each of the co-conspirators, with the exception of Petitioner, pleaded guilty.

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Petitioner proceeded to trial, represented by appointed counsel Clifford Davis, Esq. After a two day jury trial, the jury convicted him as charged. (ECF Nos. 68, 118, 120.) The evidence showed, that although Petitioner did not participate in the actual burglary, he was present at a planning meeting; he provided bleach to clean up blood left at the scene at the other conspirators' request; he drove Maxwell, Prather and Sarah Padgett back to the pharmacy on the night of the burglary so they could use the bleach to destroy evidence of the crime; and he received a "cut" of the drugs stolen during the burglary. (See ECF No. 79, PSR ¶ 25; ECF No. 136 at 7-8.)2 Petitioner's defense was that there was a lack of physical evidence connecting him to the crime, and that the only evidence supporting a finding that he was even minimally involved was the testimony of alleged co-conspirators, who were addicts or drug users with a strong motivation to lie. (ECF No. 120 at 322-337.)

Pursuant to the Presentence Investigation Report ("PSR"), Petitioner's base offense level was 28, and he had a criminal history

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category of IV. (ECF No. 79.) The applicable guidelines range in accordance with these calculations was 110 to 137 months.

Shortly after the final PSR was prepared, Attorney Bernie Daley was appointed to represent Petitioner at sentencing. In making the substitute appointment, the Court noted that Attorney Davis had effectively represented Petitioner, but that irreconcilable differences had arisen between him and his client. (ECF No. 83.). Mr. Daley made numerous objections, and at sentencing, the court overruled in turn the objections to the quantity of drugs attributed to him, the lack of minor role adjustment, and the scoring of certain prior offenses. (ECF No. 122 at 4-6.) When given the opportunity to address the court, Petitioner noted that the statement in the PSR that Ms. Padgett had said he received part of the drugs was mistaken because neither she nor Ms. Prather had made such a claim. He also denied that he had been with the other co-defendants at the Motel 6 for the planning meeting. (ECF No. 122 at 8-9.) After Petitioner made his statement to the court, counsel argued that his client had a lesser role in the offense than the role of the other defendants, that his criminal history category overrepresented the seriousness of his criminal history, and that a

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substantial variation from the applicable guideline range was warranted. (ECF No. 122 at 10-12, 14.)

The court sentenced Petitioner to concurrent terms of 110 months imprisonment on each count. (ECF No. 103.)3 The sentence included restitution in the amount of $15,281.16, jointly and severally with Shane Maxwell, Holli Prather, Sarah Padgett and Christy Bailor.

Petitioner appealed, raising four grounds for relief. He contended that (1) the introduction of hearsay statements by an unidentified informant violated his Confrontation Clause rights; (2) the district court committed plain error when it admitted evidence of prior drug dealing; (3) the evidence was insufficient to sustain a conviction for conspiracy to commit burglary; and (4) his sentence was procedurally unreasonable. (ECF No. 136.). The Eleventh Circuit found no error and affirmed his convictions and sentence on January 15, 2013. (ECF No. 136.)

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Petitioner's initial motion to vacate was timely filed in December of 2013. (ECF No. 141.) He amended his motion pursuant to court order and filed a memorandum in support. (ECF No. 145, 150.)4 In his amended motion ("motion"), Petitioner raises ten grounds for relief, which encompass seven claims of ineffective assistance of counsel, two allegations of due process violations by the Government and a sixth amendment claim. The Government opposes the motion in its entirety.


General Standard of Review

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

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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 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 (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. Stoufflet v. United States, 757 F.3d 1236, 1239 (11th Cir. 2014); 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

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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) ("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, 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

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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. A meritorious claim of ineffective assistance of counsel, the standards for which are set forth in more detail below, can constitute cause. See Nyhuis, 211 F.3d at 1344.

An evidentiary hearing is unnecessary when "the motion and files and records conclusively show that the prisoner is entitled to no relief." See 28 U.S.C. § 2255(b); Rosin v. United States, 786 F.3d 873, 877 (11th Cir. 2015); Gordon v. United States, 518 F.3d 1291, 1301 (11th Cir. 2008). Not every claim of ineffective assistance of counsel warrants an evidentiary hearing. Gordon, 518 F.3d at 1301 (citing Vick v. United States, 730 F.2d 707, 708 (11th Cir. 1984)). To be entitled to a hearing, a defendant must allege...

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