United States District Court, E.D. Louisiana
ORDER & REASONS
M. AFRICK UNITED STATES DISTRICT JUDGE.
the Court is pro se prisoner and petitioner Sonny
Scott's (“Scott”) motion to vacate, set
aside, or correct his sentence pursuant to 28 U.S.C. §
2255. For the following reasons, the motion is granted in
part, denied in part and deferred in part, in accordance with
this order. With respect to most of Scott's claims, no
evidentiary hearing is necessary because they are meritless.
However, Scott's substantive Fourth Amendment claim, as
well as one of his Sixth Amendment claims for ineffective
assistance of counsel, which is predicated on the existence
of a valid Fourth Amendment challenge, require an evidentiary
hearing to further develop the record.
April 6, 2017, Scott pled guilty to a one-count superseding
bill of information, which charged him with being a felon in
possession of a firearm in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2); there was no plea
agreement. According to the government's factual
basis-entered into the record at Scott's rearraignment
hearing when he changed his plea to guilty-on January 12,
2017, Drug Enforcement Administration (“DEA”)
agents and task force officers were conducting surveillance
on suspected drug distributors in an area that they knew from
experience to be a common location for drug
trafficking.At approximately 10:15 p.m., the agents
observed Scott meet with another individual in a parking lot
located in the area. Scott departed the area quickly, and
shortly thereafter the agents located him at a nearby Taco
Bell drive-thru. The agents approached Scott to conduct an
investigatory stop, handcuffing him to ensure the agents'
safety. During a search of his person, the agents
found approximately $250 in cash, three grams of heroin,
approximately three grams of cocaine, numerous unidentified
and individually wrapped pills, and a loaded .38 caliber
special Smith & Wesson firearm.
13, 2017, following Scott's guilty plea, which was
entered and accepted on April 6, 2017, the Court sentenced
Scott to a term of imprisonment of 100 months.Scott appealed his
sentence, challenging both this Court's decision to
depart upward from his advisory guidelines sentencing range
and the extent of the departure. The United States Court of
Appeals for the Fifth Circuit affirmed this Court's
judgment, and on November 6, 2018, the United States Supreme
Court denied Scott's petition for a writ of
certiorari. Scott now moves to vacate, set aside, or
correct his sentence pursuant to 28 U.S.C. §
2255 is designed to remedy constitutional errors and certain
other injuries that could not be brought on direct appeal and
would result in injustice if left unaddressed. United
States v. Williamson, 183 F.3d 458, 462 (5th Cir. 1999).
Accordingly, the law allows a prisoner in federal custody to
bring a motion to vacate, set aside, or correct his sentence
in the court that imposed the sentence based on four grounds
the sentence was imposed in violation of the Constitution or
laws of the United States, . . . the court was without
jurisdiction to impose such sentence, . . . the sentence was
in excess of the maximum authorized by law, or [the sentence]
is otherwise subject to collateral attack.
28 U.S.C. § 2255(a). The § 2255 proceeding
functions as “an independent and collateral inquiry
into the validity of [a] conviction.” United States
v. Hayman, 342 U.S. 205, 222-23 (1952).
defendant may only raise “issues of constitutional or
jurisdictional magnitude.” United States v.
Shaid, 937 F.2d 228, 232 (5th Cir. 1991), cert.
denied, 502 U.S. 1076 (1992) (citing Hill v. United
States, 368 U.S. 424, 428 (1962)). Additionally,
“[t]he Supreme Court has emphasized repeatedly that a
collateral challenge may not do service for an appeal.”
Id. at 231 (internal quotation marks omitted). Thus,
a defendant generally “may not raise an issue for the
first time on collateral review without showing both
‘cause' for his procedural default, and
‘actual prejudice' resulting from the error.”
Id. at 232 (quoting United States v. Frady,
456 U.S. 152, 165 (1982)). A motion brought pursuant to
§ 2255 may only be denied without a hearing “if
the motion, files, and records of the case conclusively show
that the prisoner is entitled to no relief.” United
States v. Bartholomew, 974 F.2d 39, 41 (5th Cir. 1992).
asserts two grounds for relief. First, he challenges his
conviction by arguing that his trial counsel provided him
with ineffective assistance. Second, he argues that the law
enforcement officers who arrested him for the instant offense
violated his Fourth Amendment rights by subjecting him to an
Strickland v. Washington, 466 U.S. 668 (1984), the
Supreme Court articulated a two-part test for determining
whether a defendant's assistance of counsel was
constitutionally deficient. This test requires the petitioner
to show both (1) deficient performance of counsel and (2)
resulting prejudice from the deficient performance.
Strickland, 466 U.S. at 687. The petitioner must
satisfy both prongs of the Strickland test.
Id. at 697. A court is not required to address
Strickland's two prongs in any particular order.
Id. If it is possible to dispose of an ineffective
assistance of counsel claim without addressing both prongs,
then “that course should be followed.”
petitioner can demonstrate deficient performance and
establish the first prong by “show[ing] that [his]
counsel's representation fell below an objective standard
of reasonableness.” Id. at 688. In evaluating
an attorney's past performance on his client's
behalf, “a court must indulge a strong presumption that
counsel's conduct falls within the wide range of
reasonable professional assistance.” Id. at
689. In other words, “[j]udicial scrutiny of
counsel's performance must be highly deferential.”
Id. The Court must take care to avoid casting
counsel's every “act or omission” in the
“harsh light of hindsight.” Bell v.
Cone, 535 U.S. 685, 702 (2002).
second prong requires a petitioner to show that his
counsel's deficient performance prejudiced him. Prejudice
requires “a reasonable probability that, but for
counsel's unprofessional errors, the result of the
judicial proceeding would have been different.”
Strickland, 466 U.S. at 694. A “reasonable
probability” is “a probability sufficient to
undermine confidence in the outcome” of the proceeding.
Id. In the context of a guilty plea, 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.
“[T]he mere possibility of a different outcome
is not sufficient. . . .” Crane v. Johnson,
178 F.3d 309, 312 (5th Cir. 1999) (emphasis added). The
petitioner “must affirmatively prove, not just
allege, prejudice.” Day v. Quarterman, 566
F.3d 527, 536 (5th Cir. 2009) (emphasis added). The Court
will address Scott's ineffective assistance of counsel
claims in turn.
Scott argues that his attorney failed to negotiate a
favorable plea. As an initial matter, although Scott
refers to a plea agreement throughout his motion, there was
no plea agreement in this matter: the superseding bill of
information charged Scott with one count of being a felon in
possession of a firearm, and he pled guilty to that count
without having ever been offered a plea agreement by the
the first prong of the Strickland test, Scott must
show that his counsel's purported failure “fell
below an objective standard of reasonableness.” 466
U.S. at 688. To the extent Scott argues that his counsel
should have attempted to negotiate a plea agreement, his
argument fails because “a defendant has no right to be
offered a plea agreement.” Robles-Pantoja v. United
States, No. 09-88, 2015 WL 13534221, at *4 (W.D. Tex.
Sept. 30, 2015) (citing Lafler v. Cooper, 566 U.S.
156, 168 (2012)). Most courts treat Scott's argument as a
“non-starter”: because “there is no duty to
initiate plea negotiations or request a plea agreement, . . .
failing to do so cannot constitute deficient performance
under the first prong of Strickland.”
Id. (citations omitted).
Scott does not specify what about his plea was unfavorable;
nor does he indicate what information his counsel had access
to that would have permitted her to successfully negotiate an
agreement which would have been advantageous to him. Finally,
Scott does not contend that he was offered a more favorable
plea but rejected the offer at the advice of his counsel. His
allegation is insufficient to overcome the “strong
presumption” that his counsel provided him with
reasonable, professional assistance. Id. at 689;
cf. United States v. Moya, 676 F.3d 1211, 1214 (10th
Cir. 2012) (holding that the defendant's ineffective
assistance of counsel claim “lacked any colorable
merit, ” in part because he did not allege any facts
suggesting that his attorney could have successfully
negotiated a plea agreement with the terms that the defendant
next argues that his plea was involuntary and unintelligent
because his counsel persuaded him to plead guilty by
promising him that he would receive a different sentence than
the sentence the Court actually imposed. However,
Scott's assertion defies his own testimony during his
rearraignment. At the hearing, the Court gave an extensive
explanation of the charge Scott faced, the maximum sentence
that could be imposed in the event of a conviction or a
guilty plea with respect to such charge, the rights to which
Scott was entitled, and the consequences of waiving those
rights by changing his plea. The Court also explained that
the sentence he would receive would depend on a number of
factors, as illustrated by the following exchange:
THE COURT: Have the sentencing guidelines
applicable to your case been explained to you by your
THE COURT: Do you understand that, although
the Court has an obligation to calculate the applicable
sentencing guideline range and consider that range, the
guidelines are advisory and not binding on the Court?
THE COURT: Do you understand the Court may
depart from the guideline range under certain circumstances
and [that] there are numerous factors the Court considers
[when] fashioning an appropriate sentence?
in the hearing, the Court pointedly asked Scott whether
anyone had told him that he would receive a particular
THE COURT: Has anyone, including your
attorney, told you what sentence you might receive if I
accept your guilty plea?
THE COURT: Do you understand that any
discussions between [you and] your attorney or anyone else
about sentencing guidelines are merely rough estimates, and
the Court is not bound by those discussions?
record reflects that, on the date Scott pled guilty, he
understood that the Court was the ultimate decisionmaker as
to his sentence and that, in turn, Scott was not guaranteed
any precise sentence. “Ordinarily a defendant will not
be heard to refute his testimony given under oath when
pleading guilty.” United States v. Fuller, 769
F.2d 1095, 1099 (5th Cir. 1985) (quoting United States v.
Sanderson, 595 F.2d 1021, 1021 (5th Cir. 1979). There is
nothing in the record to suggest that Scott only pled guilty
as the result of a promise that he would receive a specific
sentence. In fact, when asked whether he had been influenced
or persuaded to plead guilty because of a promise of
leniency, he said, “No.” And when asked whether he
was pleading guilty because he was, in fact, guilty of the
crime charged in the superseding bill of information, he
answered, “Yes.” The Court finds Scott's
also argues that his counsel failed to adequately explain his
plea to him and that she failed to provide him with enough
time to review and consider the plea.For example,
he asserts that he was “rushed into trying to
understand [the] plea” and that his counsel did not
ensure that Scott understood his rights. Scott argues
that, as late as the date on which he was sentenced, he
vocalized to the Court that he did not fully understand his
plea. Again, the record reflects otherwise.
his rearraignment, after the Court described each of the
rights that Scott was waiving or giving up by pleading
guilty, Scott was questioned about whether he understood the
consequences of his plea.
THE COURT: Do you understand if I accept
your plea of guilty, you would not be entitled to a trial and
the government would not be required to prove you're
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 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 COURT: Are you willing to waive and give
up your right to trial by jury or judge?
also indicated that he was satisfied with his counsel's
assistance leading up to his decision to plead guilty:
THE COURT: Have you had sufficient time to
discuss with your attorney the facts of your case and any
possible defenses you may have?
THE COURT: Are you entirely satisfied with
the advice and services of your counsel?
Scott's plea was not particularly complex or difficult to
understand. He was charged with a single count, alleging that
he illegally possessed a firearm. At his rearraignment, the
Court explained to Scott the charged offense as it was
described in the superseding bill of information-namely that
he was found in possession of a firearm, having been
previously convicted of two felonies.
represented to the Court that he understood the charge
against him and what the government would have to prove at
trial to convict him. Thus, even assuming that Scott could
prove that his counsel's performance fell below an
objective standard of reasonableness, he cannot establish
that he suffered any resulting prejudice. The Court explained
to Scott the nature and consequences of his plea, and he
affirmed his understanding of the Court's explanations.
Scott cannot now ...