United States District Court, S.D. Georgia, Savannah Division
REPORT AND RECOMMENDATION
Christopher L. Ray United States Magistrate Judge.
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
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).
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
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., 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
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.
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.
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.
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 ...