United States District Court, E.D. Louisiana
the Court is petitioner Donald Sampson's motion under 28
U.S.C. § 2255 to vacate, set aside, or correct his
sentence (Rec. Doc. 206), the Government's response (Rec.
Doc. 213), and petitioner's reply (Rec. Doc. 216). For
the reasons discussed below, IT IS ORDERED
that the motion for § 2255 relief is
BACKGROUND AND PROCEDURAL HISTORY
August 21, 2014 petitioner was indicted by a federal grand
jury on one count of conspiracy to distribute and possess
with intent to distribute five kilograms or more of cocaine.
Rec. Doc. 1. On September 18, 2014, the office of the Federal
Public Defender was appointed as counsel for petitioner, and
petitioner was arraigned on September 22, 2014, represented
by assistant Federal Public Defender George Chaney, Jr. Rec.
Docs. 14, 16. On January 27, 2016, assistant Federal Public
Defender Samuel Scillitani, Jr. was substituted as
petitioner's counsel. Rec. Doc. 97. After holding a
telephone conference on April 11, 2016 regarding
petitioner's pending motion to substitute counsel, and
discussing the time needed by new counsel to prepare for
trial, the Court granted petitioner's motion to
substitute assistant Federal Public Defender Jerrod
Thompson-Hicks as counsel for petitioner and continued the
trial date. Rec. Doc. 102. On June 15, 2016, petitioner pled
guilty to a Second Superseding Indictment, represented by
Federal Public Defender Jerrod Thompson-Hicks, and sentencing
was scheduled for October 5, 2016. Rec. Doc. 112. On
September 20, 2016, assistant Federal Public Defender
Thompson-Hicks filed a motion to continue the sentencing
hearing, requesting additional time to investigate
“defendant's prior history and other guideline
matters” that were “likely [to] have an impact on
the federal sentencing guidelines.” Rec. Doc. 132 at 1.
The Court granted the continuance and reset sentencing for
November 2, 2016. Rec. Doc. 135.
petitioner withdrew assistant Federal Public Defender
Thompson-Hicks as counsel of record and enrolled retained
counsel Jason Williams, Nicole Burdett, and Gregory Sauzer.
Rec. Docs. 142, 144. Petitioner's newly retained counsel
requested a second continuance of sentencing in order to
review “the defendant's prior history and other
guideline matters” which would “likely have an
impact on the federal sentencing guidelines.” Rec. Doc.
141 at 1. The Court granted the second request for a
continuance and reset sentencing for December 21, 2016. Rec.
Doc. 145. On December 21, 2016, petitioner was sentenced to
135 months of imprisonment. Rec. Doc. 162.
filed a timely notice of appeal on January 2, 2017, in which
he argued that the Court erred by assessing him
criminal-history points for: (1) four prior state misdemeanor
convictions, which he alleged predated his involvement in the
instant drug-trafficking conspiracy by more than ten years,
and (2) a state aggravated assault conviction, which he
alleged was similar to the excluded offense of disorderly
conduct. Rec. Doc. 159, 198-1 at 2. After the filing of
petitioner's notice of appeal, retained counsel withdrew
from representing plaintiff. Rec. Docs. 161, 167.
April 25, 2018 the U.S. Court of Appeals for the Fifth
Circuit affirmed the sentence imposed by this District Court,
finding that Sampson failed to show any error with respect to
the inclusion of his four state misdemeanor convictions in
the guideline calculation, or plain error with respect to the
inclusion of his aggravated-assault conviction in the
criminal-history computation. Rec. Doc. 198-1 at 2-3.
March 14, 2019, petitioner filed the instant motion for
post-conviction relief under 28 U.S.C. 2255. Rec. Doc. 206.
to 28 U.S.C. § 2255, a federal prisoner may move the
sentencing court to vacate, set aside, or correct his
sentence when: (1) the sentence violated federal law or the
United States Constitution, (2) the court lacked jurisdiction
to impose the sentence, (3) the sentence exceeded the maximum
allowed by law, or (4) the sentence is otherwise subject to
collateral attack. 28 U.S.C. § 2255(a). “Unless
the motion and the files and records of the case conclusively
show that the prisoner is entitled to no relief, the court
shall . . . grant a prompt hearing thereon, determine the
issues and make findings of fact and conclusions of law with
respect thereto.” Id. § 2255(b).
“Conclusory allegations, unsubstantiated by evidence,
do not support the request for an evidentiary hearing.”
United States v. Reed, 719 F.3d 369, 373 (5th Cir.
2013). Instead, “[a] [petitioner] is entitled to an
evidentiary hearing on his § 2255 motion only if he
presents ‘independent indicia of the likely merit of
his allegations.'” Id. (quoting United
States v. Cavitt, 550 F.3d 430, 442 (5th Cir. 2008). The
Court “may entertain and determine [a §2255]
motion without requiring the production of the prisoner at
the hearing.” 28 U.S.C. § 2255. Having considered
the record, the motion, and the government's response,
the Court finds that the record is adequate to address the
petitioner's claims and to dispose of them as a matter of
law. Accordingly, no evidentiary hearing is necessary. See
United States v. Walker, 68 F.3d 931, 934 (5th Cir.
1995) (“if on th[e] record we can conclude as a matter
of law that [the petitioner] cannot establish one or both of
the elements necessary to establish his constitutional claim,
then an evidentiary hearing is not necessary....”).
See United States v. Hankton, 2018 WL 4144905, at *2
(E.D. La. Aug. 30, 2018), reconsideration denied, 2018 WL
5251754 (E.D. La. Oct. 22, 2018).
2255 motions represent a collateral attack on the federal
sentence, and relief is reserved only for constitutional
violations or errors that have caused “a complete
miscarriage of justice.” United States v.
Gaudet, 81 F.3d 585, 589 (5th Cir. 1996); see also
Cox v. Warden, Fed. Det. Ctr., 911 F.2d 1111, 1113 (5th
Cir. 1990). Generally, failing to raise a claim on direct
appeal bars raising that claim on collateral review unless
the petitioner can show cause and prejudice. See United
States v. Frady, 456 U.S. 152, 166-68 (1982). However,
claims of ineffective assistance of counsel may be brought in
a collateral proceeding under Section 2255 regardless of
whether the petitioner could have raised the claim on direct
appeal. Massaro v. United States, 538 U.S. 500,
succeed on an ineffective assistance of counsel claim, the
petitioner must demonstrate that: (1) his attorney's
performance was deficient, and (2) the deficient performance
prejudiced him in some way. Strickland v.
Washington, 466 U.S. 668, 687-88 (1984). Failure to
prove either prong results in failure of the entire claim.
Id. at 700.
the first prong, the petitioner must show that his
attorney's representation fell below an objective
standard of reasonableness. Id. at 687-88. In
reviewing an attorney's performance, there is a strong
presumption that her conduct “falls within the wide
range of reasonable professional assistance.”
Id. at 689. Reasonableness is measured against
prevailing professional norms. Id. at 688. To
demonstrate prejudice under the second prong, the petitioner
must show a “reasonable probability that, but for
counsel's unprofessional errors, the result of the