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Glover v. United States

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

February 4, 2019

DAMIEN LAMONT GLOVER, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          REPORT AND RECOMMENDATION

          Christopher L. Ray United States Magistrate Judge.

         As set forth in the Court's initial Report and Recommendation:

The Court sentenced Damien Lamont Glover to 151 months' imprisonment after he pled guilty to conspiracy to possess with intent to distribute controlled substances. Docs. 84 (plea agreement) & 85 (judgment).1 His plea agreement provided that he faced a sentence of up 20 years (the statutory maximum), and he swore that “no one ha[d] promised [him] that the Court will impose any particular sentence or sentence within any particular range.” Doc. 84 at 5-6. He further affirmed his understanding that the Court would consider “all of [his] relevant conduct” under the advisory Sentencing Guidelines, “not just the facts underlying the particular Count to which [he] is pleading guilty.” Id. at 6. Finally, Glover swore that he “had the benefit of legal counsel” who he “believe[d] . . . has represented him faithfully, skillfully, and diligently” and that “he is completely satisfied with the legal advice given and the work performed by his attorney.” Id. at 8. After sentencing, movant elected not to appeal his conviction. Doc. 84 (Notice of Post-Conviction Consultation).2 FN. 1 The Court is citing to the criminal docket in CR416-258 unless otherwise noted, and all page numbers are those imprinted by the Court's docketing software.
FN. 2 The Notice is a document this Court developed to memorialize counsel's consultation with his client and reflect the client's appeal decision at the time of sentencing. Green v. United States, 2017 WL 843168 at *1 (S.D. Ga. Mar. 3, 2017); see also Guyton v. United States, 2013 WL 1808761 at * 2 (S.D. Ga. Apr. 29, 2013) (the “Notice of Counsel's Post-Conviction Obligations” requires that both counsel and client execute and file the form, thus preserving a record of defendant's instructions regarding an appeal).
Glover now contradicts these sworn affirmations, seeking to vacate his sentence pursuant to 28 U.S.C. § 2255. Doc. 96. He alleges counsel was ineffective for “misleading” him into pleading guilty, having promised him a sentence capped at “five years, ” and for failing to appeal his conviction despite being told to do so. Doc. 96 at 13-17.

Doc. 99 at 1-2 (footnote omitted).

         The Court recommended denial of Glover's motion after preliminary § 2255 Rule 4 review, but vacated that recommendation to permit Glover to amend his § 2255 motion. Doc. 101. After Glover's various motions for free copies were denied (for failing both to show cause why copies were warranted or poverty to proceed in forma pauperis), docs. 103, 108 & 110, Glover finally filed his motion to amend. Doc. 116 (somewhat unintelligibly titled “Motion in compliant to amend without providing petitioner with any of the criminal record file”). The Government moved to dismiss his amended motion, doc. 115, and Glover has not opposed its motion. See S.D. Ga. L. R. 7.5 (“Failure to respond within the applicable time period shall indicate that there is no opposition to a motion.”).

         I. BACKGROUND

         Indicted for conspiracy to possess with intent to distribute and to distribute cocaine, MDMA, and marijuana; maintaining a drug-involved premises; and possession of a firearm in furtherance of a drug trafficking crime, doc.[1], defense counsel negotiated a plea agreement admitting guilt to only the conspiracy charge and capping Glover's possible sentence at 20 years. Doc. 83. During his Rule 11 plea colloquy, Glover swore under oath1 that he had not been promised any specific sentence and that he knew he could face a maximum sentence of up to 20 years' imprisonment. Doc. 112 at 16-18, 21-22 (swearing both that he understood his sentence “may not be what [his] lawyer has estimated it to be” and that “even though [his] sentence may be more severe than [he] or [his] lawyer have anticipated, [he was] still bound by [his] guilty plea and [ ] may not withdraw it.”); see also doc. 83 at 5-6. He swore that he understood that his sentence would be calculated pursuant to the Sentencing Guidelines, which could include enhancement as a career offender. Doc. 112 at 15-17; see also doc. 83 at 3. He further affirmed that no one had done anything he considered “wrong or unfair” to force him to plead guilty. Doc. 112 at 18-19, 23.

         Glover further swore that counsel had adequately met with him and fully explained the charges against him and the consequences of pleading guilty. Doc. 112 at 11-12. The Court explained the charge he was pleading guilty to (conspiracy to sell cocaine) and the elements of the crime, and Glover swore that he both understood the charge and that he was pleading guilty to it because he was, in fact, guilty. Id. at 12-15, 22. The Court found Glover had pleaded guilty both knowingly and voluntarily, id. at 23-24, and accepted his guilty plea, id. at 32-33. After probation services prepared a Presentence Investigative Report (PSR), Glover filed objections. PSR, Addendum. At sentencing, the Court noted that Glover's leadership role, possession of a firearm, and obstruction efforts warranted his guidelines range of 151 to 188 months' imprisonment. Doc. 97 at 8-9. The Court and the Government further noted on the record that had counsel negotiated a less aggressive plea agreement, defendant “would have been looking at something like 240 months imprisonment.” Id. at 10.

         After giving Glover the opportunity to speak, doc. 97 at 11, the Court sentenced him at the far low end of the Guidelines-range, to 151 months' imprisonment, to be served concurrently with his state probation revocation and with credit for time served not already credited to another sentence. Id. at 12-13. The Court informed Glover of his right to file an appeal within 14 days of sentencing. Id. at 17. Glover, however, expressly told his lawyer, in writing, not to file an appeal after he was fully informed of his appellate rights. Doc. 84 (“Notice of Post-Conviction Consultation, ” see supra at 2 “FN 2”) at 3-4.

         II. ANALYSIS

         Glover raises the same arguments from his original motion, essentially unchanged, compare docs. 99 & 116, and adds four new grounds for relief, doc. 116. He argues that counsel was ineffective for 1) failing to negotiate a better plea deal, 2) failing to file a direct appeal challenging his criminal history calculation, 3) failing to file a direct appeal challenging his unexpectedly lengthy sentence, 4) failing to object to the Government's “reneging on the plea agreement, ” 5) failing to object to the inclusion of “uncharged conduct” in his sentence calculation, 6) failing to move for dismissal after the Court “failed to articulate [ ] or specif[y] as to which of [his] prior state convictions” counted as a career offender predicate, 7) failing to object to his U.S.S.G. § 3B1.1(c) “leadership role” sentencing enhancement, 8) failing to challenge the PSR's recommendation of a two point enhancement for obstruction, and 9) failing to object to the PSR's representation that two prior state convictions counted as separate offenses for career criminal enhancement purposes. Doc. 116.

         “To prevail on a claim of ineffective assistance of counsel, a prisoner must prove that his counsel rendered deficient performance and that he was prejudiced by the deficient performance.” Castillo v. United States, 816 F.3d 1300, 1303 (11th Cir. 2016) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). “For performance to be deficient, it must be established that, in light of all the circumstances, counsel's performance was outside the wide range of professional competence.” Putman v. Head, 268 F.3d 1223, 1243 (11th Cir. 2001). To demonstrate prejudice, the prisoner must show “that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694; Matire v. Wainwright, 811 F.2d 1430, 1434 (11th Cir. 1987) (same); see also Butcher v. United States, 368 F.3d 1290, 1293 (11th Cir. 2004) (“[A]ttorney errors come in an infinite variety and are as likely to be ...


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