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Henley v. United States

United States District Court, S.D. Georgia, Augusta Division

May 15, 2018

MARION A. HENLEY, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BRIAN K. EPPS UNITED STATES MAGISTRATE JUDGE

         Petitioner, 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 CLOSED.

         I. BACKGROUND

         On 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.

         On 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. 3-4, 6.

         On May 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.

         Petitioner 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.)

         II. DISCUSSION

         A. Petitioner's Ground One Claim is Meritless and Should be Dismissed.

         Petitioner 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.)

         Petitioner's 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, 2015).

         Furthermore, 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.[1] 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 Proceedings.[2]

         B. Petitioner's Ground Two Claim Against Mr. Connell is Barred as a Second or Successive Motion.

         Petitioner's 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. ...


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