United States District Court, M.D. Louisiana
RULING AND ORDER
BRIAN A. JACKSON UNITED STATES DISTRICT COURT MIDDLE DISTRICT
the Court is the Motion to Vacate, Set Aside, or
Correct a Sentence by a Person in Federal Custody (Doc.
109) filed by Raphew Reed ("Petitioner").
The United States opposes this motion. (Doc. 114). An
evidentiary hearing is not warranted. For the following
reasons, Petitioner's Motion is DENIED.
alleges that his counsel provided ineffective assistance at
the sentencing phase of this proceeding by allowing
Petitioner to testify under oath on his own behalf.
Petitioner was charged in a seven-count indictment with
knowingly making false statements to a federally insured
credit union, using a false Social Security number to obtain
loans, fraud, making false statements to the FBI, and
engaging in a monetary transaction involving criminally
derived property of a value greater than $10, 000. (Doc.
109-1 a p. 2). Petitioner pleaded guilty to counts two and
five of the indictment, to wit: misuse of a social security
number and wire fraud, pursuant to a plea agreement.
(Id. at p. 4).
sentencing hearing, the Court asked Petitioner if he reviewed
the pre- sentence report ("PSR") and the
supplemental addendum with his attorney, to which he replied
in the affirmative. (Id.). The Court then addressed
Petitioner's objections to the contents of the PSR.
(Id.). Petitioner repeatedly gave testimony that
conflicted with the PSR, such as whether he lied to the FBI.
(Id.). Upon hearing the conflicting testimony, the
Based on the information, the Defendant has not clearly
accepted responsibility for his actions in committing the
instant offense and, therefore, the Court is denying any
adjustment for acceptance of responsibility. And as a result
of the Court's decision, paragraphs 45, 46, and 47 of the
Pre-Sentence Report will reflect the same. (Doc. 144 at p.
Court then allowed Petitioner to speak in mitigation of his
sentence, at which point, at Petitioner's request, his
attorney put Petitioner on the stand and allowed him to
testify. (Id. at pp. 7-8). Over the course of his
approximately 45- minute-long testimony, Petitioner
deflected, made excuses for his behavior, promised to sue
other people, and generally refused to accept responsibility
for his conduct. (Id. at p. 8). After hearing
Petitioner's testimony, the Court admonished Petitioner:
You do not get it. I've sat here for a half an hour, 45
minutes, listening to you, Mr. Reed, and on the one side you
tell me how sorry you- in fact, I didn't hear the word
"sorry," but I did hear you say several times: I
accept responsibility. And then 15 minutes later, through
another 15 minutes, you tell me: really, it's other
people and I'm going to sue other people for this. And
I'm going to complain to the FBI about what other people
did. This is not about other people, sir. This is about you,
Mr. Reed. And you don't get it. You don't- you talk
yourself out of this idea of responsibility. And I'm just
flabbergasted by it. I'm stunned by it, given the
opportunities that you had to express sincere contriteness.
(Doc. 109-1 at p. 12).
Petitioner's testimony, the Court sentenced him to 48
months imprisonment on each of counts two and five, to be
served concurrently. (Id.). Petitioner filed a
notice of appeal, and the Untied States Court of Appeals for
the Fifth Circuit affirmed his sentence, but found that his
ineffective assistance of counsel claims should be resolved
by the district court. (Id.). Petitioner now brings
the instant motion to vacate his sentence based on 28 U.S.C.
§ 2255(a), asserting that his trial counsel should not
have allowed him to testify at the sentencing
2255 provides that a federal prisoner serving a court-imposed
sentence may, for limited reasons, move the court to vacate,
set aside or correct his sentence. 28 U.S.C. § 2255(a).
Only a narrow set of claims are cognizable on a § 2255
motion. The statute identifies four grounds on which a motion
may be made: (1) the sentence was imposed in violation of the
Constitution or laws of the United States; (2) the court was
without jurisdiction to impose the sentence; (3) the sentence
exceeds the statutory maximum sentence; or (4) the sentence
is "otherwise subject to collateral attack."
succeed on a claim of ineffective assistance of counsel, a
defendant must demonstrate that his representation "fell
below an objective standard of reasonableness" and
"a reasonable probability [exists] that, but for
counsel's unprofessional errors, the results of the
proceedings would have been different. Strickland v.
Washington, 466 U.S. 668, 686 (1984).
claims that his counsel was ineffective because he allowed
Petitioner to testify under oath when offered the chance to
mitigate his sentence, which allegedly resulted in the Court
not granting a sentence reduction for acceptance ...