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United States v. Strickland

United States District Court, E.D. Kentucky, Central Division, Lexington

April 1, 2018

UNITED STATES OF AMERICA, Plaintiff/Respondent,


          Hanly A. Ingram, United States Magistrate Judge

         Defendant Taniesha C. Strickland has filed a motion under 28 U.S.C. § 2255, alleging 38 grounds for relief. D.E. 114. The government responded, and filed an affidavit from Strickland's trial attorney along with a series of letters. D.E. 125. Strickland did not file a reply within the time allotted to do so. Thus, the motion is ripe for review.

         Under 28 U.S.C. § 2255, a federal prisoner may seek habeas relief because a sentence violates the Constitution or federal law, the federal court lacked jurisdiction to impose such a sentence, or the sentence exceeds the maximum authorized by law. 28 U.S.C. § 2255. To prevail on a § 2255 motion alleging constitutional error, a defendant must establish that the error had a “substantial and injurious effect or influence on the proceedings.” Watson v. United States, 165 F.3d 486, 488 (6th Cir. 1999) (citing Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)). A § 2255 movant bears the burden of proving his or her allegations by a preponderance of the evidence. McQueen v. United States, 58 F. App'x 73, 76 (6th Cir. 2003) (per curiam).

         The Court recognizes that Strickland is proceeding pro se, without the assistance of an attorney (although her motion was prepared by a prisoner providing legal aid). The Court construes pro se motions more leniently than other motions. Castro v. United States, 540 U.S. 375, 381-83 (2003); Franklin v. Rose, 765 F.2d 82, 85 (6th Cir. 1985). A document filed pro se is to be liberally construed. Erickson v. Pardus, 551 U.S. 89, 94 (2007).

         Many of Strickland's claims raise issues of ineffective assistance of counsel. To successfully assert an ineffective-assistance-of-counsel claim, a defendant must prove both deficient performance and prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984); Pough v. United States, 442 F.3d 959, 964 (6th Cir. 2006). To prove deficient performance, a defendant must show that “counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687. A defendant meets this burden by showing “that counsel's representation fell below an objective standard of reasonableness” as measured under “prevailing professional norms” and evaluated “considering all the circumstances.” Id. at 688.

         However, a reviewing court may not second-guess trial counsel's strategic decisions. Moss v. Hofbauer, 286 F.3d 851, 859 (6th Cir. 2002). Thus, “a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Strickland, 466 U.S. at 689 (internal quotations omitted). “A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.” Id.

         In order to prove prejudice, a movant “must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. Thus, “[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.” Id. at 691. When evaluating prejudice, courts generally must consider the “totality of the evidence.” Strickland, 466 U.S. at 695. Courts may approach the Strickland analysis in any order, and an insufficient showing on either prong ends the inquiry. Id. at 697.

         To show prejudice in the guilty-plea context, a movant “‘must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and instead would have insisted on going to trial.'” Hodges v. Colson, 727 F.3d 517, 534 (6th Cir. 2013) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)), cert. denied sub nom. Hodges v. Carpenter, 135 S.Ct. 1545 (2015), reh'g denied, 135 S.Ct. 2345 (2015).

         To show prejudice in the sentencing context, a movant must establish that his “sentence was increased by the deficient performance of his attorney.” Spencer v. Booker, 254 F. App'x 520, 525 (6th Cir. 2007) (citing Glover v. United States, 531 U.S. 198, 200 (2001)).

         Strickland's numerous grounds are often repetitive, overlapping, and contain multiple theories. They have been sorted and analyzed on the basis of subject matter instead of in the order that they are raised by Strickland.

         I. Background

         As described in Strickland's plea agreement, in July 2015, Lexington police officers conducted controlled purchases of small amounts of heroin from Strickland and her codefendant Antonio Rosebur. D.E. 95 at 2. On July 29, officers received and executed a state search warrant on an apartment that was occupied by Strickland and Rosebur. Officers conducting the search found heroin, pain pills, and cocaine, some of which was in Strickland's wallet and shoe. Id. Strickland told the officers she had only been in Lexington a couple of days, but she admitted occasionally selling heroin “down the street.” Id. at 3.

         On September 10, 2015, Strickland was indicted for one count of conspiracy to distribute 100 grams or more of heroin, one count of possessing with intent to distribute 100 grams or more of heroin, and one count of possessing with intent to distribute cocaine, crack, oxycodone, and hydrocodone. D.E. 1. Antonio Rosebur was also charged in all three counts, plus a fourth count of being a felon in possession of a firearm, based on a pistol that was found in the apartment bedroom. Id. On September 21, after being arrested, Strickland appeared in Court with retained counsel Benjamin Hicks (D.E. 8), and was released on conditions (D.E. 9).

         On November 22, 2015, the government moved to revoke Strickland's release (D.E. 32), and the Court issued an arrest warrant (D.E. 35). Strickland's probation officer alleged that Strickland had submitted a urine sample that tested positive for marijuana. D.E. 51. She was arrested in Michigan and again released on bond. D.E. 36. Shortly thereafter, Strickland moved for rearraignment (D.E. 39). Her rearraignment was set for December 23, 2015 (D.E. 41), but she failed to appear, and the Court issued an arrest warrant (D.E. 43). Antonio Rosebur did appear at that hearing, and pleaded guilty. See D.E. 54 at 2. In January, Mr. Hicks moved to withdraw as Strickland's counsel. D.E. 52. Strickland was again arrested in Michigan for failure to appear at the December 23 hearing, but this time she was not released. D.E. 54 at 2. Judge Reeves granted Mr. Hicks's motion to withdraw and ordered Strickland to appear on the additional bond violation charge that she violated her terms of release by failing to appear at the December 23 hearing. Id. at 3.

         The Court then appointed Thomas C. Lyons to represent Strickland (D.E. 55), and her release was revoked on February 26, 2016 (D.E. 59). On March 9, 2016, Strickland again moved to plead guilty subject to an agreement with the government. D.E. 62. She appeared at her April 8, 2016 rearraignment hearing, but she did not enter a plea. D.E. 72. According to Mr. Lyons, on that date “Strickland would not sign the plea agreement and appeared upset.” D.E. 125-1 at 6. The Court took a two-hour break, but, after further discussion, Strickland was “more emotional and was having difficulty deciding how to proceed.” Id.

         Several days later, Strickland moved for rearraignment a third time (D.E. 74), and pleaded guilty on April 15 to a lesser-included offense of Count One, i.e., conspiracy to distribute heroin with no quantity specified (D.E. 77; D.E. 124 (transcript)).

         In her plea agreement, Strickland admitted that, prior to the search of the apartment, she and Rosebur sold “small amounts of heroin” during “controlled purchases.” D.E. 95 at 2. She admitted that she was in the apartment when the search was conducted and that officers found large quantities of narcotics, including “a small bag” of heroin in her wallet and 44 grams of cocaine in a “woman's shoe” that Strickland admitted belonged to her. Id. Also, according to the factual summary, Strickland “claimed that she had only been in Lexington for a couple of days” and she admitted she would “occasionally” take small quantities of heroin “down the street to sell to someone.” Id. at 3. She admitted that her relevant conduct included 13.4 grams of cocaine, 23.2 grams of crack, 1.2 grams of hydrocodone, 1.18 grams of oxycodone, and 20-40 grams of heroin. Id. at 3-4. Pursuant to the plea agreement, the government recommended a 2-level increase in her base offense level because a firearm was possessed. Id. at 4. The agreement also recognized that the government was opposed to a credit for acceptance of responsibility on account of the violations of her bond conditions. Id.

         The plea agreement also contained a waiver provision at paragraph 8: “The Defendant waives the right to appeal the guilty plea and conviction. Except for claims of ineffective assistance of counsel, the Defendant also waives the right to attack collaterally the guilty plea, conviction, and sentence.” Id. at 5.

         On August 15, 2016, Strickland was sentenced to 57 months of imprisonment, followed by three years of supervised release. D.E. 98. She did not appeal. The current motion under 28 U.S.C. § 2255 was timely placed in the prison mail on August 14, 2017 (although it erroneously states it was 2016). D.E. 114 at 54.

         Strickland argues in Ground One that her plea was not knowing and voluntary on account of her “mental health deficits.” Id. at 4. She argues in Ground Four that her plea was not voluntary because her attorney pressured her into it. Id. at 8. She also argues in Grounds 37 and 38 that she was actually innocent of the heroin conspiracy. Id. at 49-52. She also raises numerous other allegations of ineffective assistance of trial counsel (“IAC”). The non-IAC claims will be considered first.

         II. Validity of the Plea Agreement

         Because the existence of a valid plea agreement undermines many of Strickland's claims, the validity of her plea is a pivotal issue that warrants the Court's full attention. If done knowingly and voluntarily, a criminal defendant may, by the terms of the plea agreement, waive her right to file a direct appeal and her right to collaterally attack her conviction and sentence under § 2255. Davila v. United States, 258 F.3d 448, 450-51 (6th Cir. 2001). “[A] defendant in a criminal case may waive any right, even a constitutional right, by means of a plea agreement.” United States v. Griffin, 854 F.3d 911, 914 (6th Cir. 2017).

         However, a petitioner may challenge the validity of such a waiver on the basis that the plea “was not knowing or voluntary, or was the product of ineffective assistance of counsel.” In re Acosta, 480 F.3d 421, 422 (6th Cir. 2007). Strickland raises both of these challenges.

         Several of Strickland's grounds for relief concern her mental competency. If, at the time of her rearraignment, she was mentally incompetent to stand trial, her plea would be invalid. To enter a valid plea, a defendant must possess “the sufficient present ability to consult his lawyer with a reasonable degree of rational understanding, as well as having a rational and factual understanding of the proceedings against him.” United States v. Calvin, 20 F. App'x 452, 453 (6th Cir. 2001). But not every manifestation of mental illness demonstrates incompetency to stand trial. For example, “Neither low intelligence, mental deficiency, nor the fact that a defendant has been treated with anti-psychotic drugs can automatically be equated with incompetence.” Hastings v. Yukins, 194 F.Supp.2d 659, 671-72 (E.D. Mich. 2002) (citing Burket v. Angelone, 208 F.3d 172, 192 (4th Cir. 2000); Miles v. Dorsey, 61 F.3d 1459, 1474 (10th Cir. 1995)).

         Strickland alleges in Ground One that her plea was not knowing or voluntary. D.E. 114 at 4. She also appears to argue throughout her motion that her plea was the product of ineffective assistance of counsel. Among other allegations, Strickland claims her counsel failed to appreciate her psychological handicaps. Id. She argues that her “mental health deficits” affected her ability to make “a knowledgeable plea.” Id. She says she “did not understand what a plea agreement is, ” and that counsel did not explain the agreement and its related risks “in a culturally sensitive” or “primarily English language” format. Id. She states in Ground Two that she suffered from “lead intoxication and PTSD in elementary school, ” and that she had “attention deficit disorder with hyperactivity, behavioral manifestations, and dyslexia (written and spoken word deficits).” Id. at 5. She argues that counsel failed to investigate her competency issues prior to her plea. Id. In Ground Sixteen, she alleges that counsel should have requested what the Court construes to be a competency determination. Id. at 24. In Ground Eighteen she alleges that her repeatedly displayed “emotional disturbances” and lack of comprehension should have triggered competency proceedings, and that her signature on the plea agreement was void because counsel did not read the plea agreement to her or discuss it with her. Id. at 26. Part of Ground Twenty argues that counsel should have raised defenses of insanity, lack of intent, and extreme emotional disturbance. Id. at 28.

         In Ground Four, Strickland repeats her allegation that counsel failed to explain the agreement and its associated risks and argues that she was “improperly pressured” into accepting the plea. D.E. 114 at 8. She argues that counsel wanted her to plead guilty “for the sake of his relationship with the ‘federal people, '” and avers that counsel had reason to initiate competency proceedings. Id. Ground Fourteen alleges that counsel coerced Strickland to enter the guilty plea against her wishes, even after she “burst into emotional distress” during a private meeting in which she stated “she did not want or agree with the plea offer.” Id. at 21. She claims she was “pressured into a guilty plea” and “not offered information on consequences of withdrawing a plea.” Id. She claims counsel “never discussed . . . the risk and benefit of the plea offer in the beginning of his representation.” Id. Federal Rule of Criminal Procedure 11 governs plea colloquies. The Rule is meant to ensure that the district court is satisfied that a guilty plea is made knowingly, voluntarily, and intelligently. United States v. Webb, 403 F.3d 373, 378 (6th Cir. 2005). Rule 11 requires the Court to verify “that the defendant understands his or her applicable constitutional rights, the nature of the crime charged, the consequences of the guilty plea, and the factual basis for concluding that the defendant committed the crime charged.” Id. at 378-79. When the District Court “has scrupulously followed the required procedure” during a plea colloquy, “the defendant is bound by his statements in response to that court's inquiry.” Ramos v. ...

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