U.S. v. Scott

Full title: UNITED STATES OF AMERICA, v. SHANE KIMBERLY SCOTT, Defendant

Court: United States District Court, S.D. Alabama, Southern Division

Date published: Aug 14, 2000

Civil No. 00-0536-AH-S, Criminal No. 94-0104-AH (S.D. Ala. Aug. 14, 2000)

Opinion

Civil No. 00-0536-AH-S, Criminal No. 94-0104-AH

August 14, 2000

ORDER

ALEX T. HOWARD, JR., Senior Judge

This matter is before the Court on Defendant's motion to set aside, vacate or correct sentence filed pursuant to 28 U.S.C. § 2255. (Docs. 95). For the reasons stated below, Defendant's motion is due to be DENIED.

In July 1994, Defendant was charged with conspiracy to commit theft of a vehicle in interstate commerce in violation of 18 U.S.C. § 371, armed robbery of an automobile in violation of 18 U.S.C. § 2119, and use of firearm during crime of violence in violation of 18 U.S.C. § 924(c). In October 1994, Defendant was tried by a jury and found guilty as to all counts. In December 1994, Defendant was sentenced to sixty months imprisonment on the conspiracy charge, ninety-six months concurrent imprisonment on the robbery charge, and sixty months of consecutive imprisonment on the firearm charge.

Defendant has filed this section 2255 motion contending that his counsel was ineffective. Defendant states that his counsel was ineffective for failing to advise him to accept a plea bargain and for failing to prosecute an appeal.

I. Ineffective Assistance

For Defendant to be successful in claiming ineffective assistance of counsel, he must show that (1) "counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed . . . by the Sixth Amendment," and (2) "the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 686 (1984). Defendant must show that his counsel's errors were so serious that he was, in effect, "denied a fair trial, a trial whose result is reliable." Id. The Defendant must overcome a strong presumption that the challenged action "might be considered sound trial strategy." Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).

The Court must give substantial deference to counsel's decisions and must conduct a review of his behavior only in terms of what was reasonable considering all the circumstances. Strickland, 466 U.S. at 689. Every effort must be made to avoid the "distorting effects of hindsight." Id. The Court may not displace counsel's judgment with its own, but rather must "evaluate the conduct from counsel's perspective at the time." Id. Even should the Court determine that counsel made serious errors, the conviction may only be vacated if, but for counsel's errors, there is a reasonable probability that the result of the proceeding would have been different. Id. at 694. In considering Defendant's claims, the Court need not address both prongs of the Strickland test if the Defendant makes an insufficient showing as to one. United States v. Hilliard, 752 F.2d 578, 580 (11^th Cir. 1985); Weeks v. Jones, 26 F.3d 1030, 1037 (11^th Cir. 1995).

II. Discussion

Defendant first contends that his counsel was ineffective for improperly advising Defendant to reject a plea offer by the Government. Defendant states that he was offered a plea agreement by the Government and his attorney advised him to reject the plea offer and stand trial. Defendant states that his attorney informed him that "without the gun, the government could not get a conviction." (Def.'s Brief at 3).

A defendant's right to effective assistance applies to plea negotiations. See Diaz v. United States, 930 F.2d 832, 834 (11th Cir. 1991). The Strickland standard discussed above applies to claims of ineffective assistance during such plea negotiations. See id.

In the instant case, Defendant states that he was informed of a plea offer. Defendant's argument is that his attorney advised him to reject the offer and that had Defendant accepted the plea offer, he would have received a shorter sentence.

Defendant makes no assertion that he desired to plead guilty. Furthermore, Defendant fails to provide any description of the terms or conditions of the purported plea offer, or whether Defendant was willing or able to comply with those terms or conditions. Finally, Defendant fails to indicate the alternative sentence which may have been imposed under the plea agreement and thus fails to assert any potential sentencing disparity,.

On review of a similar factual basis, the Eleventh Circuit Court of Appeals explained:

As to [defendant's] claim that counsel was ineffective in advising him that the plea offer was unacceptable, [defendant] has not established prejudice with respect to counsel's advice. He does not allege that but for his attorney's errors, he would have accepted the plea offer; he cites no evidence to indicate that prior to his conviction he expressed any desire to plead guilty. He argues only that he would have received a lesser sentence had he accepted the plea agreement. However, the Supreme Court has recognized that "[j]udicial scrutiny of counsel's performance must be highly deferential," and that courts should ensure 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. at 689, 104 S.Ct. at 2065. Given appellant's awareness of the plea offer, his after the fact testimony concerning his desire to plead, without more, is insufficient to establish that but for counsel's alleged advice or inaction, he would have accepted the plea offer. See Johnson, 793 F.2d at 902 n. 3. He has not established facts that, if proven, would entitle him to relief.

Id. Due to the foregoing, in the instant case Defendant has failed to indicate any basis for prejudice.

Defendant also argues that his attorney was ineffective for failing to prosecute Defendant's appeal. The right to effective assistance of counsel extends to direct appeal. See Evitts v. Lucey, 469 U.S. 387, 396 (1985). The Strickland analysis also applies to claims of ineffective assistance of appellate counsel. See Coleman v. Jones, 909 F.2d 447, 451 (11th Cir. 1990).

In the instant case, Defendant has failed to indicate any grounds which his counsel should have raised on appeal. Consequently, the Court finds that Defendant has failed to show any prejudice from his counsel's alleged error.

III. Conclusion

Based upon the foregoing, Defendant's section 2255 motion is DENIED. As the record is sufficient to indicate that Defendant is not entitled to relief, Defendant's motion for an evidentiary hearing is also DENIED. See Anderson v. United States, 948 F.2d 704, 706 (11th Cir. 1991)