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United States v. Reed

United States District Court, M.D. Louisiana

August 1, 2019

UNITED STATES OF AMERICA
v.
RAPHEW REED

          RULING AND ORDER

          JUDGE BRIAN A. JACKSON UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

         Before 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.

         I. BACKGROUND

         Petitioner 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).

         At the 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 Court ruled:

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. 6).

         The 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).

         After 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 hearing.[1]

         II. LEGAL STANDARD

         Section 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." Id.

         To 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).

         III. DISCUSSION

         Petitioner 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 ...


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