United States District Court, S.D. Georgia, Savannah Division
REPORT AND RECOMMENDATION
Christopher L. Ray Y United States Magistrate Judge.
pleaded guilty to distribution of heroin, Marlon Lashawn King
seeks to vacate his sentence due to counsel's alleged
ineffectiveness. Doc. 101; see docs. 77 (guilty plea); 78
(judgment for 151 months' imprisonment); 98 & 100
(mandate of Eleventh Circuit and appeal opinion affirming
conviction and sentence). He contends his counsel was
deficient for failing to object to his Presentence
Investigative Report (PSR), to file an Anders brief
or petition for certiorari, or seek to admit into
evidence an affidavit from King's wife taking full
responsibility for the conduct attributed to him in the PSR.
Doc. 101 at 4-6.
his plea agreement and his Rule 11 plea hearing, King
affirmed that counsel's representation had been
satisfactory. Doc. 77 at ¶ 13; doc. 89 at 14. He also
admitted that he sold heroin to an undercover informant.
Id. at 23, 25-28. The Court accepted his plea and
the probation office prepared a PSR calculating King's
sentencing range under the United States Sentencing
Guidelines. See U.S.S.G. § 1B1.1 (range is
based on a defendant's total offense level and criminal
explained that King's codefendant had purchased 1, 860
grams of THC for King to resell, and because that amount was
attributed to King, his base offense level was increased. PSR
at ¶¶ 16-17, 31-33, 39. Two firearms found in
King's residence, which King asserted were purchased and
owned by his wife, were also listed. PSR at ¶¶ 22,
26; see PSR at ¶ 40 (increasing King's
offense level by two for the possession of at least one
firearm). King's total offense level, with an acceptance
of responsibility reduction, was 23 and his criminal history
category V. PSR at 44, 46-48. However, because he was a
“career offender, ” his total offense level
became 29, yielding an advisory guideline range of 151-188
months. PSR at 45-48, 61, 104; see PSR at 45, 52-53
(prior convictions for sale of cocaine and marijuana with
intent to distribute).
objected to inclusion of the THC in his attributed drug
quantity, contending there was no evidence that he was the
intended recipient of the THC. And he objected to the firearm
enhancement, citing an affidavit his wife submitted swearing
the firearms were her property. The Government responded,
explaining that the firearms enhancement was supported by
King's possession of a gun during the controlled sale
(not just their discovery at his home) and video
recordings of King asking his codefendant about the status of
the THC shipment. Moreover, as the Government pointed out to
defense counsel via email, King's criminal history pushed
him into career offender territory irrespective of the
inclusion or exclusion of either enhancement. See
doc. 104, Exh. A at 4-5 (reflecting email exchange between
counsel, the Government, and Probation regarding
defendant's objections to the PSR and the
Government's response), 7-8 (counsel's argument on
attribution of drug quantity and ownership of the firearms);
see also doc. 98 at 6 (Eleventh Circuit's
opinion affirming his conviction and sentence and nothing
that “King's guidelines range was determined not by
the probation office's calculation under the drug
equivalency tables - which took into account offense conduct
for which King was not convicted - but rather by the career
offender enhancement, which King has never
represented that he had conferred with King and decided to
withdraw his objections accordingly. Id. at 3. King
did not object to the PSR at sentencing. Doc. 94 at 4. King
was sentenced at the low end of the guidelines range, to
serve 151 months imprisonment. Doc. 94 at 14. The Eleventh
Circuit affirmed his sentence, doc. 98, and King filed his
motion for collateral relief, arguing that counsel's
performance was constitutionally deficient. Doc. 101.
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 utterly harmless in
a particular case as they are to be prejudicial. That the
errors had some conceivable effect on the outcome of
the proceeding is insufficient to show prejudice.”). In
other words, mere dissatisfaction with counsel's
performance or disagreement with strategy is not enough.
contentions are largely belied by the record. He complains
that counsel failed to object to the firearm and drug
quantity enhancements and failed to file his wife's
affidavit claiming ownership of the firearms. Doc. 101 at 4
& 6. But he attaches counsel's letter objecting to
the PSR as an exhibit to his motion, and that letter sets
forth exactly those objections. Id. at 14-15. The
Government's exhibits further show that counsel did
object, but after reviewing the Government's responses to
those objections, made a strategic decision to withdraw them.
Doc. 104, Exh. A at 3; see also doc. 94 at 4 (King
declined to object to the PSR at sentencing). Even had
counsel pursued those objections, moreover, they would not
have changed King's sentencing guideline range. Counsel
cannot be ineffective for failing to give chase down a
meritless rabbit hole.
finally argues that counsel deficiently failed to appeal his
case to the Supreme Court or file an Anders brief.
Doc. 101 at 5 (explaining that counsel told him that
“he did not possess the authority to file in Supreme
Court”). But appellate counsel was not deficient
“for failing to file a petition for a writ of
certiorari, Wainwright v. Torna, 455 U.S. 586,
587-88 (1982), because there is no right under the Sixth
Amendment to counsel to pursue a discretionary application
for review in the Supreme Court, Ross v. Moffitt,
417 U.S. 600, 616-18 (1974).” Richards v. United
States, 406 Fed.Appx. 447 (11th Cir. 2010).
the Anders brief, the Court presumes plaintiff
faults counsel for not filing a brief (with the Court of
Appeals or the Supreme Court, he does not say) asking to be
relieved as counsel and setting forth a “conscientious
examination” of King's case and his opinion that no
non-frivolous issues remained for review. See Anders v.
Calif., 386 U.S. 738 (1967). What possible benefit that
brief - which, it must be remembered, would represent that
any appeal lacked merit and asked for removal from
the case - could have provided to King is unclear, given his
sere briefing. Conclusory allegations, after all, do not
justify § 2255 relief.
movant has shown is his own dissatisfaction with
counsel's performance, and that is not enough.
Accordingly, Marlon Lawshawn King's § 2255 motion
(doc. 101) should be DENIED. For the reasons
set forth above, it is plain that he raises no substantial
claim of deprivation of a constitutional right. Accordingly,
no certificate of appealability should issue. 28 U.S.C.
§ 2253; Fed. R. App. P. 22(b); Rule 11(a) of the Rules
Governing Habeas Corpus Cases Under 28 U.S.C. § 2255
(“The district court must issue or deny a certificate
of appealability when it enters a final order adverse to the
applicant.”). Any motion for leave to appeal in
forma pauperis therefore is moot.
Report and Recommendation (R&R) is submitted to the
district judge assigned to this action, pursuant to 28 U.S.C.
§ 636(b)(1)(B) and this Court's Local Rule 72.3.
Within 14 days of service, any party may file written
objections to this R&R with the Court and serve a copy on
all parties. The document should be captioned
“Objections to Magistrate Judge's Report and
Recommendations.” Any request for additional time to
file objections should be filed with the Clerk for
consideration by the assigned district judge.
the objections period has ended, the Clerk shall submit this
R&R together with any objections to the assigned district
judge. The district judge will review the magistrate
judge's findings and recommendations pursuant to 28
U.S.C. § 636(b)(1)(C). The parties are advised that
failure to timely file objections will result in the waiver
of rights on appeal. 11th Cir. R. 3-1; see Symonett v.
V.A. Leasing ...