United States District Court, S.D. Georgia, Augusta Division
MARION A. HENLEY, Petitioner,
UNITED STATES OF AMERICA, Respondent.
MAGISTRATE JUDGE'S REPORT AND
K. EPPS UNITED STATES MAGISTRATE JUDGE
an inmate at the Williamsburg Federal Correctional
Institution in Salters, South Carolina, has filed with this
Court a motion under 28 U.S.C. § 2255 to vacate, set
aside, or correct his sentence. The matter is now before the
Court for an initial review of Petitioner's motion as
required by Rule 4 of the Rules Governing Section 2255
Proceedings for the United States District Courts. For the
reasons set forth below, the Court REPORTS and RECOMMENDS the
§ 2255 motion be DISMISSED and this civil action be
October 4, 2016, the grand jury in the Southern District of
Georgia charged Petitioner in a sixteen-count indictment with
one count of dealing in firearms without a license, seven
counts of felon in possession of a firearm, seven counts of
distribution of methamphetamine, and one count of possession
with intent to distribute methamphetamine. United States v.
Henley, CR 116-077, doc. no. 1 (S.D. Ga. Oct. 4, 2016). The
charge of dealing in firearms without a license carried a
maximum term of five years imprisonment, while the felon in
possession of a firearm charge carried a maximum term of ten
years imprisonment for each of the seven counts. CR 116-077,
doc. no. 2. The methamphetamine distribution and possession
charges carried a maximum sentence of twenty years
imprisonment for each count. Id. at 2. Petitioner
retained Christopher Scott Connell to represent him as trial
counsel. Id., doc. no. 11.
January 5, 2017, Petitioner appeared with counsel before
Chief United States District Judge J. Randal Hall and pleaded
guilty to Count Nine, distribution of methamphetamine.
Id., doc. nos. 15, 16. In exchange for the guilty
plea, the government agreed to (1) dismiss the remaining
counts in the indictment; (2) not object to a recommendation
for a two-point acceptance of responsibility reduction and
move for an additional one-point reduction under the
Sentencing Guidelines if Petitioner's offense level was
sixteen or greater; and (3) consider filing a motion, based
on any “substantial assistance” provided by
Petitioner, for downward departure under U.S.S.G. §
5K1.1 or requesting a reduction of Petitioner's sentence
under Fed. R. Crim. P. 35. Id., doc. no. 16, pp.
31, 2017, Judge Hall sentenced Petitioner to a total term of
imprisonment of 160 months. Id., doc. no. 25. All
other remaining counts against Petitioner were dismissed and
judgment entered on May 31, 2017. Id., doc. no. 25.
Petitioner did not file a direct appeal. Petitioner filed his
first § 2255 motion in this Court on November 17, 2017.
See Henley v. United States, CV 117-154, doc. no. 1 (S.D. Ga.
Nov. 17, 2017). Petitioner raised a single ground alleging
Mr. Connell failed to file a notice of appeal despite
Petitioner instructing him to do so. Id. The Court
appointed attorney Beau Worthington to represent Petitioner
for the purpose of an evidentiary hearing, which was held on
March 13, 2018. Id., doc. nos. 5, 12. On March 27,
2018, the undersigned recommended Petitioner's §
2255 motion be denied on the basis that Petitioner did not
request counsel to file a direct appeal. Id., doc.
no. 14. On April 12, 2018, Mr. Worthington filed objections
to the R&R on Petitioner's behalf. Id., doc.
no. 17. On April 23, 2018, after considering the objections
to the R&R, the Court adopted the R&R as its opinion
and denied Petitioner's § 2255 motion. Id.,
doc. no. 18.
signed his current § 2255 motion on April 30, 2018, and
the Clerk of Court filed the motion on May 3, 2018. (Doc. no.
1, pp. 1, 12.) In Ground One, Petitioner claims Mr.
Worthington was ineffective for failing to file objections to
the March 27th R&R, which Petitioner did not receive
until “several weeks” after it was issued, and
asks the Court to allow him to file pro se objections to the
March 27th R&R. (Id. at 4, 12.) In Ground Two,
Petitioner asserts a new claim that Mr. Connell was
ineffective for advising Petitioner he would only receive
30-37 months of imprisonment and Petitioner was ultimately
sentenced to 160 months. (Id. at 5.)
Petitioner's Ground One Claim is Meritless and Should be
argues Mr. Worthington rendered ineffective assistance of
counsel by failing to object to the March 27th R&R in CV
117-154. (Id. at 4.) Petitioner also states he did
not receive the R&R until “several weeks after the
order was issued, ” and requests the opportunity to
file pro se objections to the R&R as relief.
(Id. at 4, 12.)
Ground One claim fails as a matter of law. A habeas
petitioner does not have a constitutional right to counsel
during post-conviction proceedings and, accordingly, cannot
claim he was denied effective assistance of counsel during
such proceedings. Saunders v. United States, 380 Fed.Appx.
959, 964 (11th Cir. 2010) (citing Coleman v. Thompson, 501
U.S. 722, 752 (1991); Henderson v. Campbell, 353 F.3d 880,
892 (11th Cir. 2003)); Pressley v. United States, No.
5:16-cv-08024-VEH, 2017 WL 412893, at *4 (N.D. Ala. Jan. 31,
2017); Burgess v. United States, Nos. 12-CV-80340-RYSKAMP,
11-CR-80012-RYSKAMP, 2016 WL 1624010, at *9 (S.D. Fla. Jan.
19, 2016), adopted by 2016 WL 1583829 (S.D. Fla. Feb. 18,
2016); Jones v. United States, Nos. 1:10-CR-0453-ODE-JFK-4,
1:14-CV-1000-ODE-JFL, 2015 WL 2169236, *7 (N.D.Ga. May 8,
even if Petitioner had a constitutional right to counsel
during post-conviction proceedings, he would not be entitled
to relief based on the facts of his claim. Despite
Petitioner's contentions, Mr. Worthington did, in fact,
file objections to the March 27th R&R, which the Court
considered before adopting the R&R as its opinion and
denying Petitioner's motion on the merits. CV 117-154, doc.
nos. 17, 18. Thus, it appears from Petitioner's motion
and the record of the prior § 2255 proceedings that
Petitioner's Ground One claim is meritless, and the Court
may dismiss his Ground One claim at this stage under Rule 4
of the Rules Governing Section 2255
Petitioner's Ground Two Claim Against Mr. Connell is
Barred as a Second or Successive
Ground Two ineffective assistance claim against Mr. Connell
cannot be considered because of the successive motion
restrictions enacted by AEDPA and now contained in 28 U.S.C.