United States District Court, S.D. Mississippi, Northern Division
MEMORANDUM OPINION AND ORDER
DAVID BRAMLETTE, District Judge.
This cause is before the Court on Motion of the Defendant, Charles W. Gavin, to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody [docket entry no. 221] pursuant to 28 U.S.C. § 2255. Having carefully considered said Motion, the Government's opposition thereto, applicable statutory and case law, and being otherwise fully advised in the premises, the Court finds and orders as follows:
Facts and Procedural History
Gavin was charged in a single count indictment with conspiracy to commit murder for hire in violation of 18 U.S.C. § 1958. Following a jury trial, Gavin was convicted on April 28, 2009. Gavin appealed his conviction to the Fifth Circuit, and the Fifth Circuit affirmed his conviction on January 25, 2011. Gavin made no further direct appeals. He filed this motion on April 19, 2012.
Gavin argues that his attorney, John M. Colette, provided ineffective assistance of counsel, alleging six instances, which the Government summarized as:
(1) failure to interview the other co-defendants;
(2) preventing the defendant from testifying;
(3) failure to request a continuance;
(4) failure to object at trial and to appeal the alleged late disclosure of Brady;
(5) failure to challenge defendant's career offender status; [and]
(6) failure to challenge a sentencing enhancement.
Resp. p. 2, ECF No. 228.
To prevail on an ineffective assistance of counsel claim, "[f]irst, the defendant must show that counsel's performance was deficient[;]... [s]econd the defendant must show that the deficient performance prejudiced the defense." Strickland v. Washington , 466 U.S. 668, 687 (1984). A court may examine performance or prejudice in any order and need not examine both prongs if a defendant fails to demonstrate either. Id., at 697. An attorney's performance is judged on a standard of reasonably effective assistance. Id., at 687 The deficient performance must be so egregious as to render it less than that guaranteed by the Sixth Amendment. "[S]crutiny of counsel's performance must be highly deferential, ' and, in order to avoid the effects of hindsight bias, [the Court] must indulge a strong presumption that counsel's conduct falls within the range of reasonable professional assistance....'" Higgins v. Cain , 720 F.3d 255, 265 (5th Cir. 2013) (quoting Strickland , 466 U.S. at 689). "Prejudice means that counsel's errors were so serious as to deprive the defendant of a fair trial...." United States v. Painter, 243 F.App'x 818, 821 (5th Cir. 2007) (quoting Strickland , 466 U.S. at 687). Prejudice requires a reasonable probability that, but for counsel's deficient performance, the result would have been different. Strickland , 466 U.S. at 694.
1. Failure to Interview Other Co-Defendants
In his first claim, Gavin argues that Attorney Colette provided ineffective assistance of counsel by failing to interview the other co-defendants. Pl.'s Mem. Supp. p. 5, ECF No. 222. According to Gavin, these interviews would have produced exculpatory evidence that no conspiracy existed. However, Mr. Colette states in his affidavit that he did interview the attorneys for these defendants in numerous discussions and meetings. He further states that none of ...