Opinion
Case No. 5:14-cv-301-Oc-10PRL Case No. 5:13-cr-20-Oc-10PRL
04-09-2015
UNITED STATES OF AMERICA v. LUCIEN FRANK SOBOLEWSKI
ORDER DENYING MOTION UNDER 28 U.S.C. § 2255
The Defendant/Petitioner, Lucien Frank Sobolewski, has filed a counseled and timely petition under 28 U.S.C. § 2255 (Case No. 5:14-cv-301-Oc-10PRL, Doc. 1) seeking to set aside his conviction and sentence in his criminal case (Case No 5:13-cr-20-Oc-10PRL). His sole claim is that he received ineffective assistance of counsel at trial in several different ways.
For all present purposes the Court will accept the non-conclusory facts as alleged or proffered in the Petition and its incorporated memorandum; and, based upon the Petition, the entire record in the criminal case, and the Government's response to the Petition, the Court has determined that "the files and records of the case conclusively show that the prisoner is entitled to no relief. . . ." 28 U.S.C. § 2255(b). It follows that an evidentiary hearing is unnecessary and that the Petition is ready for decision. See Winthrop-Redin v. United States, 767 F.3d 1210, 1212 (11th Cir. 2014); Feliciano v. United States, 500 Fed. Appx. 905 (11th Cir. Dec. 12, 2012); Perez v. United States, 435 Fed. Appx. 820 (11th Cir. July 20, 2011).
Unpublished decisions of the Court of Appeals are not binding precedent but may be cited as persuasive authority. Fed. R. App. P. 32.1; Eleventh Circuit Rule 36.2.
The Petition will be denied in all respects for the reasons that follow.
Background
As a result of a traffic stop in the Ocala National Forest on the afternoon of February 6, 2013, Sobolewski was found to be in possession of 6.8 grams of marijuana and a .50 caliber revolver together with several rounds of .50 caliber ammunition. After making a voluntary statement to the investigating officer admitting his possession and use of both items -- the marijuana and the firearm -- Sobolewski was permitted to go on his way (without the firearm and the marijuana).
Sobolewski was also in possession of a valid concealed weapon permit issued to him under Florida law.
On March 20, 2013, some six weeks after the traffic stop, the Grand Jury returned a single count indictment charging Sobolewski with an offense in violation of the firearms statute, 18 U.S.C. § 922(g)(3). Sobolewski entered a plea of not guilty and the case was placed on the calendar for trial.
The trial lasted two days and resulted in a jury verdict of guilty (Case No. 5:13-cr-20, Doc. 53). A sentence of commitment for a term of one year and one day was imposed (Docs. 78 and 79). No appeal was taken. In fact, Sobolewski filed a waiver of appeal (Doc. 81) and elected instead to pursue relief through his present petition under 28 U.S.C. § 2255 (Doc. 82). And, because Sobolewski might well serve his sentence before the § 2255 motion could be adjudicated, the Court deferred execution of the sentence (Doc. 95) pending further order.
The charge against Sobolewski under § 922(g) was familiar in one way and virtually unique in another, at least in this Court. That section of Title 18 - § 922(g) - makes it unlawful for any individual who comes within any one of nine separately defined categories of prohibited persons, to possess any firearm that has moved in interstate commerce. The first category of prohibited persons includes those with felony convictions, resulting in the familiar charge of "felon in possession" of a firearm in violation of § 922(g)(1). In Sobolewski's case, however, he was charged under the rarely invoked subsection (3) of § 922(g)) which prohibits possession of a firearm by anyone "who is an unlawful user of . . . any controlled substance . . ." as defined in 21 U.S.C. §802.
Research discloses that § 922(g)(3) has been cited in only ten published decisions of the Eleventh Circuit Court of Appeals, and there is no Eleventh Circuit Pattern Jury Instruction covering that subsection of the statute.
Moreover, the statute does not define the crucial term "unlawful user," and the rarity of cases under subsection (3), coupled with the lack of an approved Eleventh Circuit Pattern Jury Instruction, results in a paucity of law guiding the formulation of a jury charge concerning the meaning of the term. It was not surprising, therefore, that during the progress of Sobolewski's case, his trial counsel took the wise and unusual step of filing a motion (Doc. 45) seeking a pretrial determination of the instruction the Court would give to the jury defining the term "unlawful user." The Government did not object and the Court granted the motion (Doc. 46). Both parties filed their respective proposed instructions on the subject (Docs. 38 and 41) and the Court resolved the issue.
Unless otherwise specified, all citations to docket entries are from the Defendant/Petitioner's criminal case, Case No. 5:13-cr-20.
See Doc. 46 and Doc. 52, p. 9. The instruction formulated by the Court, and later given to the jury was:
The term "unlawful user" of a controlled substance means a person who, at the time he possessed a firearm or ammunition, was actively and regularly engaged in the ongoing use of a controlled substance over a period of time that is sufficient to establish a pattern of conduct as distinguished from isolated and disconnected usages. However, the law does not require the Government to prove that the Defendant was using a controlled substance at the precise time he possessed the firearm or ammunition, nor does it require the Government to prove that the Defendant was under the influence of a controlled substance at the time of the possession.
The primary dispute between the Parties concerning the jury instruction defining "unlawful user" centered on the period of time during which the use of a controlled substance must take place. Sobolewski's counsel proposed an instruction (Doc. 38) stating that the use must have occurred over a "long" period of time, citing the First Circuit decision in United States v. Marceau, 554 F.3d 24 (1st Cir. 2009). This Court declined to adopt that language, however, on the basis that it would simply inject another term of uncertain meaning - "long" period of time - into the effort to explain to the jury the primary term of undefined meaning: "unlawful user." Rather, the Court opted for the wording: "[active and regular use] over a period of time that is sufficient to establish a pattern of conduct as distinguished from isolated and disconnected usages." (Doc 52, p. 9).
The significance of all of this now lies in the fact that it discloses the two-fold strategy of Sobolewski's trial counsel in his defense of the case. First, as an issue of fact, he hoped to argue to the jury that Sobolewski's marijuana use was not a prolonged and ongoing use but, rather, was an occasional and sporadic use undertaken in response to certain isolated, stressful events in his life. Secondly, as an issue of law, Sobolewski's counsel made a record for a legal argument on appeal, if necessary, that the Court's instruction to the jury was insufficient and wrong because it did not tell the jury that Sobolewski's usage of marijuana must have occurred over a "long" period of time.
This was, and continues to be, a plausible and reasonable line of defense. Nevertheless, the present petition claims that Sobolewski received ineffective assistance of counsel and is entitled to a new trial. There are four specifications of representational failure on the part of Sobolewski's trial counsel:
1. Failure to call Dr. Almari Ginory, D.O. as a witness to testify that Sobolewski did not meet the definition in the Diagnostic and Statistical Manual of Mental Disorders for psychiatric impairment due to cannabis abuse.
2. Failure to present the results of Sobolewski's drug test, taken after the date alleged in the indictment.
3. Failure to file a motion in limine or object during trial to evidence of a replica DEA badge in Sobolewski's possession.
4. Failure to impeach government witnesses Charles McIntyre and Angela McIntyre, and to call other witnesses at trial.
Each of these contentions will be considered in sequence.
I
During the pretrial stages of the criminal case, Sobolewski's counsel moved for a competency examination of Sobolewski (Doc. 26) based upon concerns expressed by Sobolewski's family physician regarding his ability to understand the proceedings. (Id.). The United States Magistrate Judge granted the motion (Doc. 28), and Sobolewski was examined by Almari Ginory, D. O., of the University of Florida Forensic Institute, Department of Psychiatry.
Dr. Ginory's report (Doc. 31) concluded that although Sobolewski had an "Adjustment Disorder With Anxiety" resulting from the pendency of the criminal case, he was competent to stand trial (and no issue is raised about that in the pending motion). Then, under the heading: "Does the defendant meet the criteria for a mental illness or disorder?" the report stated:
According to the DSM IV-TR, substance abuse is defined as a maladaptive pattern of substance use which leads to impairment or distress as manifested by at least one of the following symptoms. Recurrent use resulting in a failure to fulfill major obligations; recurrent use in situations where it is physically hazardous; recurrent legal problems; and/or continued use despite recurrent interpersonal problems caused by the effects of the substance. Mr. Sobolewski does not meet criteria for cannabis abuse as he does not have recurrent impairment due to substance use.(Doc. 31, p. 7).
In his present motion under § 2255, Sobolewski claims that his trial counsel was constitutionally ineffective because he did not seek to call Dr. Ginory as a witness to testify concerning his above-quoted opinion. The short and conclusive answer to this claim is that it fails because Sobolewski cannot demonstrate either deficient performance or prejudice; and he cannot do so because the Court - to a certainty - would have excluded such evidence under Rule 403, Federal Rules of Evidence.
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), establishes a two prong test for determining constitutional ineffectiveness of counsel in a criminal case. First, "the defendant must show that counsel's representation fell below an objective standard of reasonableness." 466 U.S. at 688. Second "any deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance under the constitution." 466 U.S. at 692. More specifically, to establish prejudice the defendant must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." 466 U.S. at 694. And, finally, "there is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one." 466 U.S. at 697.
As the Court had already resolved before trial to instruct the jury, the standard for determining whether an individual is an "unlawful user" of a controlled substance within the meaning of 28 U.S.C. § 922(g)(3) is whether the individual, at the time he possessed the firearm "was actively and regularly engaged in the ongoing use of a controlled substance over a period of time that is sufficient to establish a pattern of conduct as distinguished from isolated and disconnected usages." (Doc. 46, p. 5). Significantly, under that standard it was not necessary that the Government prove that Sobolewski was a clinical abuser for purposes of a psychiatric diagnosis, and to admit Dr. Ginory's opinion on that subject would constitute a classic example of potentially "confusing the issues [and] misleading the jury" under Fed. R. Evid. 403.
Counsel cannot be guilty of deficient performance for failing to offer evidence that the Court would not have admitted, and/or Sobolewski cannot show prejudice resulting from the exclusion of inadmissible evidence.
This aspect of the claim is without merit.
II
Attached as Exhibit A to Sobolewski's petition under § 2255 is a copy of a "drug test" reporting "negative" results. (Case No. 5:14-cv-301, Doc. 1, Ex. A). It reflects that the date of the test was "5/1/2013" and that the reason for the test was "Pre-Employment." The claim is that trial counsel's failure to offer this document in evidence at trial was ineffective assistance of counsel.
In his petition Sobolewski represents that "the Defendant did in fact obtain a drug test, at the request of his attorney, some 13 days after his arrest, and did in fact provide a copy of same to trial counsel." (Case No. 5:14-cv-3-1, Doc. 1, p. 10). This creates an ambiguity as to whether the test occurred 13 days after the arrest or almost three months later on May 1, 2013, the date appearing on the face of the document. The Court will assume, however, in a light most favorable to Sobolewski, that he provided a urine sample taken some 13 days after his arrest, as represented in the petition, and that the sample was then tested in the lab on May 1 as stated on the face of the report.
Even so, a decision not to offer the report in evidence at trial was not ineffective assistance. For one thing, if the report had been offered to establish that Sobolewski had not been using marijuana on or around February 6, 2013, the date of the alleged offense, it would have impeached his own written statement to the contrary. He had admitted to the interviewing officer at the time of the traffic stop - the date and time of the alleged offense - that he had smoked a "joint" of marijuana the day before the traffic stop and "half a joint" the morning of the traffic stop. (Case No. 5:13-cr-20, Doc. 62, pp. 109-10).
It might also be noted that the statement on the drug test document that the reason for the test was "Pre-Employment" would not be helpful to Sobolewski's cause.
Or, if the purpose of the offer of the drug test into evidence had been to show that Sobolewski was not a "heavy" user, as represented in the petition (Doc. 82, p. 10) there is a substantial likelihood that the Court would have excluded it under Rule 403 as more confusing than probative. The issue was whether Sobolewski was an ongoing user engaged in a pattern of conduct, not that he was a "heavy" user. At the very least, if the Court had seen fit to admit the test report at all, it would probably have given a limiting or clarifying instruction that while the test report might be considered in deciding the issues framed in the Court's other instructions, the Government was not required to prove that Sobolewski was a "heavy" user, whatever that term might mean.
Under the circumstances - especially in view of his client's admission that he had used marijuana the day of and day before his encounter with law enforcement - the decision of Sobolewski's trial counsel not to offer the test report is the very kind of second guessing that the Supreme Court in Strickland condemned. See 466 U.S. at 689.
This aspect of the claim is without merit.
III
Among other things found to be in Sobolewski's possession at the time of the traffic stop on February 6, 2013, was a DEA badge affixed to the inside of his wallet. His present petition asserts that his trial counsel was constitutionally deficient and ineffective for failure to object to evidence of the badge, both before and during trial, including a failure to object to mention of the badge during Government counsel's rebuttal argument to the jury.
The evidence was not clear as to whether the badge was genuine or merely a replica; and, in any event, there was no suggestion to the jury that Sobolewski had used the badge during any act of impersonation or that his possession of it was unlawful in any way.
To succeed on this claim Sobolewski must demonstrate that the objection, if made, would have been sustained (otherwise there would be no deficiency in representation) and that evidence of the badge was prejudicial to the defense in the manner defined by the Supreme Court's decision in Strickland. Sobolewski's petition fails on both prongs of this analysis.
The overriding if not the singular issue at trial was the duration and extent of Sobolewski's marijuana use - whether the nature of his usage was sufficient to meet the definition of an "unlawful user" that the Court had formulated for inclusion in the final jury charge. The credibility of Sobolewski's own statement to the investigating officer about the nature and extent of his marijuana usage was, therefore, a focal point of the trial. And, in his statement, Sobolewski represented that he had possession of the badge in his wallet for only a short period of time whereas the testimony of Government witnesses (corroborated by the physical appearance of the wallet) was to the effect that Sobolewski, in fact, had possessed the badge for a longer period of time. The Government was arguably entitled, therefore, to submit to the jury that Sobolewski had falsely minimized his statement about the badge and, therefore, it was reasonable to infer that he had also falsely minimized his statement about the nature and duration of his recent usage of marijuana.
Sobolewski exercised his right of silence and elected not to testify during the trial itself. (See Doc. 64, pp. 131-32).
Evidence of possession of the badge, of course, may have had some prejudicial effect upon the jury even though there was no suggestion that simple possession of it was unlawful; and, if an objection had been made the Court would necessarily have undertaken the balancing exercise required by Rule 403. Looking back at the issue now, it is more likely than not that the Court would have overruled the objection if one had been made; but in that event, it is also more likely than not that the Court would have given a limiting instruction to the jury that the testimony about the badge should be considered only with respect to the veracity and reliability of Sobolewski's statement, and not as evidence of guilt of the crime charged.
It should be noted that, while not addressed to the evidence of the badge in particular, the Court did instruct the jury that (Doc. 52, p. 11);
I caution you, members of the jury, that you are here to determine from the evidence in this case whether the Defendant is guilty or not guilty. The Defendant is on trial only for the specific offense alleged in the indictment.
In sum, it is probably fair to say that many lawyers - perhaps even most lawyers-would have made objection to testimony or evidence about the badge, but the objection would likely have been overruled (with a limiting instruction). And, under those circumstances, in the Court's experience, some lawyers would then have withdrawn the objection because of the view that the limiting instruction itself would be counterproductive by focusing additional attention on the subject. All of this is entirely speculative, of course, but that in itself compels the conclusion that Sobolewski cannot show that his counsel's conduct was unreasonable. That is, he cannot show "that no competent counsel would have taken the action that his counsel did take." Chandler v. United States, 218 F.3d 1305, 1315 (11th Cir. 2000) (en banc). On the contrary in this case, the circumstances were such that competent counsel - though not every lawyer by any means - might well have acted in the same manner as did Sobolewski's lawyer.
Moreover, even if one assumes to the contrary - that the lack of any objection to evidence about the badge was objectively unreasonable in light of prevailing professional norms and that no competent lawyer would have withheld objection to it - Sobolewski cannot demonstrate prejudice to the degree required by Strickland: that there is a reasonable probability that, but for counsel's unprofessional error, the result of the proceeding would have been different, a reasonable probability meaning a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694.
The matter of possession of the badge, while relevant to the veracity of Sobolewski's statement, was and is wholly collateral to the central issue in the case which was Sobolewski's status vel non as an unlawful user of marijuana. And on that central issue the evidence was virtually overwhelming. Sobolewski was caught red handed in primary possession of a firearm and ammunition together with a quantity of marijuana, and he readily admitted to using that controlled substance (although he minimized the frequency and duration of that use). Other witnesses testified to a more frequent indulgence by Sobolewski over a longer period of time than he acknowledged.
Sobolewski argues in the petition (Case No. 5:14-cv-301, Doc. 1, p. 15) that the DEA badge "became a focal point of the trial and upon which the testimony of all government witnesses was directed." This is an exaggeration at best, and as previously noted, there was no suggestion to the jury that Sobolewski had actually used the badge in any act of impersonation or that simple possession of it was unlawful in any way.
Sobolewski recited in his statement that he had smoked marijuana "off and on" since he was 19 years old, and had only recently resumed its use after being injured in a motor vehicle accident on December 20, 2012. He said that he began "experiencing headaches so I started using marijuana again . . . to self-medicate." (Doc. 62, page 109).
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The Court is unable to say that, absent any testimony or evidence about the DEA badge, the result of the proceeding would have been different. There is no reasonable probability of a different result that is sufficient to undermine confidence in the outcome.
This aspect of the claim has no merit.
IV
The remainder of Sobolewski's petition raises a number of complaints that his trial counsel did not sufficiently highlight internal and comparative inconsistencies in the testimony of Government witnesses Charles and Angela McIntyre, respectively, and a failure to call other witnesses to impeach the McIntyres, including Crystal Colbert.
In fact, trial counsel did cross examine and impeach both of the McIntyres (Doc. 192, pp. 33-50 as to Charles McIntyre; Doc. 192, pp. 79-87 as to Angela McIntyre), and did, in fact, call Crystal Colbert as a defense witness to contradict Angela McIntyre's testimony concerning Sobolewski's use of marijuana. (Doc. 192, pp. 105-117). In any event -
"Which witnesses, if any, to call, and when to call them, is the epitome of a strategic decision, and is one that we will seldom, if ever, second guess." Waters v. Thomas, 46 F.3d 1506, 1512 (11th Cir. 1995) (en banc). " 'The mere fact that other witnesses might have been available or that other testimony might have been elicited from those who testified is not a sufficient ground to prove ineffectiveness of counsel.'" Id. at 1514 (quoting Foster v. Dugger, 823 F.2d 402, 406 (11th Cir. 1987)).Perez v. United States, 435 Fed. Appx. 820, 823 (11th Cir. July 20, 2011).
This aspect of the claim is without merit.
Conclusion
Having determined that the Defendant/Petitioner's claims are all without merit, the petition under 29 U.S.C. § 2255 (Case No. 5:14-cv-310, Doc. 1) is DENIED with prejudice. The Clerk is Directed to enter judgment accordingly, terminate all other pending motions in Case No. 5:14-cv-301, and close the file.
The Order made on June 17, 2014 in the Defendant/Petitioner's criminal case (Case No. 5:13-cr-20, Doc. 95) deferring execution of the Judgment of Commitment entered on April 24, 2014 (Case No. 5:13-cr-20, Doc. 79) is hereby VACATED and SET ASIDE. The Defendant Sobolewski is ORDERED and DIRECTED to surrender himself to the United States Marshal in Ocala on or before 4:00 p.m. Eastern Daylight Time, Thursday, April 30, 2015, for execution of sentence. Upon failure of the Defendant Sobolewski to comply, the Clerk shall forthwith, without further notice or direction, issue a warrant for his arrest and detention pursuant to the Judgment (Doc. 79).
IT IS SO ORDERED.
DONE and ORDERED at Ocala, Florida, this 9th day of April, 2015.
/s/_________
UNITED STATES DISTRICT JUDGE
Copies to: Counsel of Record
Lucien Frank Sobolewski
Courtroom Deputy
United States Marshal