United States District Court, E.D. Kentucky, Northern Division, Covington
ORDER ADOPTING REPORT AND RECOMMENDATION
DAVID L. BUNNING, District Judge.
Defendant has filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 asserting two claims of ineffective assistance of counsel (Doc. # 53). More particularly, Defendant first alleges that his trial counsel was ineffective for failing to file a notice of appeal; and, second, that counsel was ineffective for failing to object to the Armed Career Criminal (ACC) enhancement.
Pursuant to the Court's local practice, the motion was referred to the presiding magistrate judge for a hearing, if necessary, and preparation of a report and recommendation. After convening an evidentiary hearing where both Mr. Beard and his trial counsel Robert Lotz testified, the Court entered a briefing schedule. Those briefs having been filed, and the Magistrate Judge having reviewed the record, including the transcript of Defendant's plea colloquy with the Court, considered the arguments of counsel, and weighed the credibility of Mr. Beard and Mr. Lotz, the Magistrate Judge entered her Report and Recommendation (R&R) (Doc. # 81). In her R&R, she made certain factual findings regarding the first issue and concluded that no ineffective assistance of counsel had occurred ( Id. ) Defendant having now filed his objections to the R&R (Doc. # 82), the R&R and the Objections are ripe for review. For the reasons set forth herein, Defendant's objections are overruled, the R&R is adopted as the findings of facts and conclusions of law of the Court, and the motion to vacate is denied.
In his objections, Defendant initially takes umbrage with the Magistrate Judge's Factual and Procedural History, arguing that her recitation of the facts and procedural history lead to an improper R&R. Defendant also takes issue with her rejection of his testimony that he instructed his attorney to file a notice of appeal on his behalf. Finally, he argues that the Magistrate Judge erred when she concluded and recommended that there was no ineffective assistance of counsel when counsel did not object to the armed career criminal designation. Each of these objections will be addressed in turn.
It is incumbent upon one seeking relief under 28 U.S.C. § 2255 to show that his conviction was the product of a fundamental defect in the proceedings which necessarily resulted in a complete miscarriage of justice or an egregious error violative of due process. Gall v. United States, 21 F.3d 107, 109 (6th Cir.1994). Pursuant to § 2255, a federal prisoner may seek habeas relief on grounds that his conviction or sentence violated the Constitution or laws of the United States, the court was without jurisdiction to impose the sentence, or the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack. See 28 U.S.C. § 2255(a). Defendant alleges his counsel's performance violated his Sixth Amendment right to counsel by failing to file a notice of appeal despite his request that one be filed; and by failing to object to the application of the ACCA.
The Supreme Court has held that [t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper function 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 (1984). To meet this standard, the Court set forth a two-part test. First, a defendant is required to show that counsel's representation fell "below an objective standard of reasonableness." Id. at 687-88. In reviewing this prong, the court is to apply a deferential standard, i.e. there is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. If a defendant satisfies the first prong, he must also establish that counsel's deficient performance prejudiced him. Id. at 691-94. Specifically, he must "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.
As properly found by the Magistrate Judge in her R&R, and as more fully explained herein, Defendant has failed to satisfy his burden of establishing ineffective assistance of counsel under the applicable standard.
A. There is nothing erroneous about the Magistrate Judge's Factual and Procedural History as set forth in the R&R.
Although Defendant "takes issue" with the factual and procedural history set forth in the R&R, he has failed to establish that it is not an accurate recitation of what occurred in this case. More specifically, Defendant was charged with one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Defendant was also notified that he was facing an enhanced penalty as an armed career criminal in violation of 18 U.S.C. § 924(e). In its notice filing, the Government set forth Defendant's three prior felony convictions that it believed subjected him to the enhanced statutory punishment under the Armed Career Criminal Act ("ACCA").
After extensive plea negotiations, Defendant ultimately entered into a binding Plea Agreement with the United States pursuant to Federal Rule of Criminal Procedure 11(c)(1)(c). In that agreement, Defendant agreed to plead guilty to being a felon in possession of a firearm with the statutory enhancement in exchange for an agreement that any sentence imposed for his supervised release violation in case 2:01-cr-59 would run concurrently with the agreed-upon 180-month term of imprisonment on the felon in possession charge. Defendant also agreed to waive his right to appeal. However, he did not waive his right to collaterally attack the guilty plea, conviction, and/or sentence.
During the plea colloquy, the undersigned asked Defendant a series of questions to make certain that he understood the terms of the agreement. That included making sure he understood the binding nature of the agreement, that is, once the Court accepted the agreement, it would be bound to sentence him as recommended in the agreement. Despite Defendant's protestations to the contrary in his motion, he acknowledged multiple times that he understood ...