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Barber v. United States

United States District Court, S.D. New York

December 30, 2019

FRANKLIN BARBER, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION & ORDER

          VALERIE CAPRONI, UNITED STATES DISTRICT JUDGE

         Franklin Barber, proceeding pro se, moves pursuant to 28 U.S.C. § 2255, to vacate, set aside, or correct his sentence. Dkt. 183.[1] On June 2, 2017, Petitioner pleaded guilty to conspiracy to distribute and possess with the intent to distribute cocaine base; on April 27, 2018, he was sentenced to 120 months' imprisonment. Dkts. 125, 176, 179. On April 5, 2019, Petitioner filed a Section § 2255 Petition (the “Petition”), seeking to vacate his sentence on the grounds that he received ineffective of counsel. Dkt. 183. Upon careful review of Petitioner's arguments, the Court finds that Petitioner's claims lack merit. Accordingly, the Petition is DENIED.

         BACKGROUND

         On June 15, 2016, Superseding Indictment S1 was filed, charging six defendants, including Petitioner, with conspiracy to distribute and possess with the intent to distribute 280 grams or more of cocaine base, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A). Dkt. 34. On June 2, 2017, Petitioner pleaded guilty to the lesser included offense of conspiracy to distribute and possess with the intent to distribute more than 28 grams of cocaine base in violation of 21 U.S.C. §§ 846 and 841(b)(1)(B). Dkt. 125. The plea agreement specified that Petitioner waived his right to appeal or collaterally challenge any sentence of imprisonment within or below the guidelines range, but indicated that he retained the right to assert claims of ineffective assistance of counsel. Dkt. 192-1 at 5-6. Susan Kellman was appointed to represent Petitioner and represented him when he pled guilty and at sentencing. Dkt. 94. Petitioner's previous appointed counsel withdrew after a deterioration of the attorney-client relationship. Dkts. 89, 94. During his plea allocution, Petitioner stated under oath that he was satisfied with his attorney and had discussed the plea agreement with her. Dkt. 125 at 5, 13.

         Petitioner was sentenced on April 27, 2018. Dkt. 179. The Court explained that Petitioner was a career offender because he was over 18 at the time of the instant offense, the instant offense was a felony violation of a controlled substances law, and petitioner had at least two prior felony convictions for violations of narcotics laws. Id. at 5. The Court found that Petitioner had 23 criminal history points, putting him in criminal history Category VI and yielding a guidelines range of 188 to 235 months' imprisonment, which was the range stipulated in the Plea Agreement and calculated by the Probation Department in the Presentence Report. Id. at 6-7. The Court varied downward and imposed a below-guidelines sentence of 120 months' imprisonment, to be followed by five years of supervised release. Id. at 20.

         Petitioner now seeks to vacate his sentence pursuant to 28 U.S.C. § 2255. Dkt. 183. Specifically, Petitioner argues that his attorney provided ineffective assistance by failing to request a Fatico hearing and by advising him that he was a career offender. Dkt. 183 at 4-5. The Government opposes the petition and argues that Petitioner's claims fail under the standard established in Strickland v. Washington, 466 U.S. 668 (1984). Dkt. 192.

         DISCUSSION

         I. Legal Framework

         The Court notes at the outset that petitioner is proceeding pro se. Courts “have never held pro se prisoners to the standards of counseled litigants.” Gonzalez v. Crosby, 545 U.S. 524, 544 (2005) (citing Haines v. Kerner, 404 U.S. 519 (1972) (per curiam)). Accordingly, “the submissions of a pro se litigant must be construed liberally and interpreted ‘to raise the strongest arguments that they suggest.'” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (per curiam) (quoting Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006) (emphasis in Triestman)).

         Under 28 U.S.C. § 2255, a petitioner “may move the court which imposed [petitioner's] sentence to vacate, set aside or correct the sentence.” Relief under Section 2255 is available “only for a constitutional error, a lack of jurisdiction in the sentencing court, or an error of law or fact that constitutes ‘a fundamental defect which inherently results in a complete miscarriage of justice.'” Brama v. United States, No. 08-CV-1931, 2010 WL 1253644, at *2 (S.D.N.Y. Mar. 16, 2010) (quoting United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995)).

         II. Petitioner's Ineffective Assistance of Counsel Claims

         A. Applicable Law

         A claim of ineffective assistance of counsel will only be granted if a petitioner can show that his counsel's performance fell below an objective standard of reasonableness and that he was prejudiced by his counsel's deficient performance. Strickland, 466 U.S. at 687-96 . This two-prong test is difficult to satisfy. See Shi Hui Sun, 2013 WL 1947282, at *4 (“[Ineffective assistance of counsel] is a difficult showing to make, as courts ‘must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance, bearing in mind that there are countless ways to provide effective assistance in any given case.'”) (quoting United States v. Aguirre, 912 F.2d 555, 560 (2d Cir. 1990)) (alterations omitted). A petitioner cannot prevail on a claim of ineffective assistance of counsel “merely because in hindsight he thinks [his] counsel's [] strategy was inadequate, ” United States v. Sanchez, 790 F.2d 245, 253 (2d Cir. 1986); the petitioner must show that his counsel “made errors so serious” that she was not “functioning as the ‘counsel' guaranteed [to] the defendant by the Sixth Amendment, '” Harrington v. Richter, 562 U.S. 86, 104 (2011) (quoting Strickland, 466 U.S. at 687).

         The second prong of the Strickland inquiry is not satisfied unless a petitioner can affirmatively prove prejudice by showing “that there is a ‘reasonable probability' that, but for the deficiency, ‘the result of the proceeding would have been different.'” Clark v. Stinson, 214 F.3d 315, 321 (2d Cir. 2000) (quoting Strickland, 466 U.S. at 694). When the petitioner fails to demonstrate sufficient prejudice, the Court need not examine the question of whether counsel rendered reasonably effective assistance. Strickland, 466 U.S. at 697 (“[T]here is no reason for a court deciding an ineffective assistance claim ... to address both components of the inquiry if the defendant makes an insufficient ...


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