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United States v. Durio

United States District Court, E.D. Louisiana

June 4, 2018

UNITED STATES OF AMERICA
v.
CLIFF DURIO

         SECTION I

          ORDER

          LANCE M. AFRICK, UNITED STATES DISTRICT JUDGE

         Before the Court is pro se petitioner Cliff Durio's (“Durio”) motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. For the following reasons, Durio's motion is denied.

         I.

         On October 30, 2015, Durio was charged in a single-count indictment with knowingly possessing fifteen or more counterfeit and unauthorized access devices, including credit cards and gift cards, with the intent to defraud in violation of 18 U.S.C. § 1029(a)(3).[1] Durio pleaded guilty to the offense on July 14, 2016.[2]

         According to the factual basis[3] to which Durio agreed at his rearraignment, Durio attempted to fly from New Orleans to Houston on August 2, 2013, checking luggage for his flight. When the bag Durio checked went through the Transportation Security Administration (“TSA”) screening machine, TSA agents noticed an item that required further inspection. When TSA agents opened Durio's bag, they found a bundle of approximately 500 credit cards and contacted the Jefferson Parish Sheriff's Office (“JPSO”) for assistance.

         TSA agents provided JPSO officers with Durio's name. JPSO officers then went to the gate area for Durio's flight and began asking passengers for their names in an attempt to identify Durio. When asked for his name, Durio refused to answer and began walking toward baggage claim. A JPSO officer instructed Durio to stop, but Durio ignored the instruction. The JPSO officer called for backup, and as officers closed in on Durio, he fled.

         Soon after, Durio was subdued, and a search incident to arrest yielded 46 gift cards, $2, 050 in cash, a laptop computer, an iPad mini, an iPhone, and two other smart phones. A separate investigation revealed that Durio's checked luggage contained 738 access device cards embossed with names and account numbers.

         The financial institutions that held the accounts corresponding to the numbers on the cards confirmed that the true account holders were not the individuals whose names appeared on the cards and that several of the accounts had recently had fraud reported. Investigators determined that, with respect to 549 of the cards from 12 different financial institutions, the total fraud loss was at least $35, 096.92 and the total credit limit-i.e., the total potential loss-was at least $4, 331, 511.00.

         On December 15, 2016, the Court sentenced Durio to a term of 78 months imprisonment. Durio timely appealed, and his appeal was dismissed on July 21, 2017. Durio filed the instant motion on April 30, 2018. The government does not contest the timeliness of Durio's § 2255 petition.

         II.

         Durio asserts two grounds for relief. First, he asserts various claims of ineffective assistance of counsel. Second, he contends that his sentence was imposed in violation of the sentencing guidelines and violates his constitutional rights. The Court considers each of Durio's meritless arguments in turn.

         A.

         Ineffective assistance of counsel claims are governed by the standard established in Strickland v. Washington, 466 U.S. 668 (1984). Strickland's two-part test requires a petitioner to prove both deficient performance and resulting prejudice. Strickland, 466 U.S. at 687.

         Deficient performance is established by “show[ing] that counsel's representation fell below an objective standard of reasonableness.” Id. at 688. In applying this standard, a “court must indulge a ‘strong presumption' that counsel's conduct falls within the wide range of reasonable professional assistance because it is all too easy to conclude that a particular act or omission of counsel was unreasonable in the harsh light of hindsight.” Bell v. Cone, 535 U.S. 685, 702 (2002) (quoting Strickland, 466 U.S. at 689). In other words, “judicial scrutiny of counsel's performance must be highly deferential.” Strickland, 466 U.S. at 689.

         A showing of prejudice requires “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. With respect to guilty pleas, the prejudice requirement “focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). Thus, in challenging a guilty plea on grounds of ineffective assistance, a petitioner must show “that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” Id.

         The petitioner must satisfy both prongs of the Strickland test in order to be successful on an ineffective assistance claim. See Strickland, 466 U.S. at 687. A court is not required to address these prongs in any particular order. Id. at 697. If it is possible to dispose of an ineffective assistance of counsel claim without addressing both prongs, “that course should be followed.” Id.

         i.

         Durio first contends that his counsel was ineffective because she pressured him into pleading guilty to a crime that he did not commit.[4] This argument is belied by Durio's own statements.

         A defendant's representations at a plea hearing “constitute a formidable barrier in any subsequent collateral proceedings.” Blackledge v. Allison, 431 U.S. 63, 74 (1977). This is because, “[s]olemn declarations in open court carry a strong presumption of verity.” Id. Accordingly, “the subsequent presentation of conclusory allegations unsupported by specifics is subject to summary dismissal, as are contentions that in the face of the record are wholly incredible.” Id. Furthermore, “[w]hen a defendant pleads guilty relying upon his counsel's best professional judgment, he cannot later argue that his plea was due to coercion by counsel.” United States v. Lagrone, 727 F.2d 1037, 1038 (11th Cir. 1984) (citing Williams v. United States, 443 F.2d 1151, 1153 (5th Cir. 1971)).

         The Court entered into the following exchange with Durio and his counsel at Durio's rearraignment hearing:

THE COURT: I'll now explain the rights that by pleading guilty you're waiving and giving up. You have a right to be represented by counsel either one you retain for yourself or one appointed for you by the Court. You would have the right to remain silent. You would have a right excuse me. You would be entitled to a speedy and public trial by a jury of 12 or by the judge if a jury trial is waived. Before you could be found guilty, the government would be required to prove at trial by competent evidence beyond a reasonable doubt the facts charged in the indictment. At trial the government would be required to confront you with witnesses upon whose testimony it relies to obtain a conviction, and you would have the right to cross examine those witnesses. At trial you would be presumed innocent until such time, if ever, the government establishes your guilt by competent evidence beyond a reasonable doubt. Before trial you would be entitled to compulsory process to call witnesses. If you were tried by a jury, all 12 jurors must agree on your guilt before you could be found guilty. If you're found guilty, you would have a right to appeal your conviction as well as your sentence. Do you understand if I accept your guilty plea, you would not be entitled to a trial and the government would not be required to prove you guilty?
THE DEFENDANT: Yes, sir.
THE COURT: Do you understand if you plead guilty and I accept the guilty plea, you would be waiving and giving up your right to trial and all the other rights I just explained to you?
THE DEFENDANT: Yes, sir.
THE COURT: Do you fully understand if I accept your guilty plea, there will be no trial, and I will simply enter a judgment of guilty and sentence you on the basis of your guilty plea?
THE DEFENDANT: Yes, sir.
THE COURT: Are you willing to waive and give up your right to a trial by a jury or judge?
THE DEFENDANT: Yes, sir.
THE COURT: Are you pleading guilty because you're, in fact, guilty of the crime charged?
THE DEFENDANT: Yes, sir.
THE COURT: To put it another way, you're pleading guilty because you did the acts charged in Count 1 of the indictment?
THE DEFENDANT: Yes, sir.
THE COURT: Have you been influenced or persuaded to plead guilty because of any promise of leniency or other things made by anyone?
THE DEFENDANT: No, sir.
THE COURT: Have you been influenced or persuaded to plead guilty because of any threats made by ...

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