United States District Court, N.D. Mississippi, Aberdeen Division
MEMORANDUM OPINION AND ORDER
BIGGERS SENIOR U.S. DISTRICT JUDGE
inmate Anthony Strong has filed a motion to vacate, set
aside, or correct sentence pursuant to 28 U.S.C. § 2255.
Respondent has filed a response in opposition to the motion,
to which Strong has failed to file a timely reply. Having
considered the pleadings and the record, along with the
relevant law, the Court finds that it is unnecessary to hold
an evidentiary hearing, and Strong's motion will be denied.
Background Facts and Procedural History
25, 2016, Anthony Strong was indicted in the Northern
District of Mississippi on one count of being a felon in
possession of a firearm pursuant to 18 U.S.C. §
922(g)(1). Doc. #1. During the commission of the federal
offense, a toddler was struck by a stray bullet fired by
Strong and suffered nonfatal injuries. Pre-Sentence
Investigation Report (“PSR”) at ¶6. A
witness identified Strong as the shooter, and records and
ballistics testing linked the gun to him. Id. at
¶¶7-9. Strong was arrested for aggravated assault
in the Monroe County Circuit Court for the same criminal
conduct leading to the federal charge. Id. at
¶39. On January 18, 2017, Strong pleaded guilty to the
federal charge, acknowledging that he had possessed a firearm
on June 24, 2013, that had previously been transported in
interstate commerce, and that he had previously been
convicted of manslaughter in the Monroe County Circuit Court
in Aberdeen, Mississippi. Doc. #42 at 15.
prepared in advance of Strong's sentencing recommended a
total offense level of 21 based on offense level enhancements
for use of a firearm, causing serious bodily injury, and
acceptance of responsibility. PSR at ¶¶16-26.
Strong's convictions for manslaughter in 1995 and writing
a bad check in 2015 yielded a criminal history calculation of
category III. PSR at ¶¶29-36. Strong's range
under the United States Sentencing Guidelines
(“Guideline(s)”) was determined to be 46 to 57
months. PSR at ¶68. At sentencing, the Court granted the
Government's motion for an upward variance, due to
Strong's violent criminal history, which included charges
of manslaughter, domestic assault, robbery, and other armed
offenses. See Doc. #52 at 11. The Court imposed a
sentence of 80 months of incarceration and 3 years of
supervised release. Doc. #48. Judgment was entered on May 24,
appeal, Strong argued that his upward variance was
unreasonable and that this Court failed to properly advise
him of the possibility of an upward variance in this case.
See United States v. Strong, 715 Fed.Appx. 393 (5th
Cir. 2018); Doc. #61. On March 15, 2018, this Court's
judgment was affirmed by the appellate court, and
Strong's motion for an extension of time to file a
petition for rehearing was subsequently denied. Id.,
about May 2, 2018, Strong, proceeding pro se, filed
a motion for a sentence reduction pursuant to 18 U.S.C.
§ 3582(c)(2) that was denied by this Court on May 7,
2018. Docs. #63-#65. A second pro se motion for
reduction of sentence pursuant to 18 U.S.C. § 3582(c)
was filed on May 29, 2018. Doc. #66. On or about June 5,
2018, Strong, again proceeding pro se, filed a
§ 2255 motion alleging a speedy-trial violation as a
result of the State- court's delay in indicting him and
bringing him to trial on charges of aggravated assault. Doc.
#68. The Court denied Strong's motions. Docs. #69 &
subsequently filed a motion for reconsideration, alleging
that this Court had improperly failed to warn him that he
must bring all viable constitutional claims in his §
2255 motion. Doc. #71. He attached a § 2255 motion to
the motion for reconsideration. Id. This Court
granted Strong's motion for reconsideration and directed
the Clerk to open a new § 2255 motion using Strong's
newly-asserted claims of illegal sentencing, improper
accusation of committing a crime of violence, and the
ineffective assistance of counsel. See Docs. #72
& #73. Thereafter, the Court directed the Government to
respond to Strong's allegations, and the Government filed
its response on December 13, 2018. See Doc. #79.
Strong did not submit a reply to the Government's
response within the twenty-one days permitted for reply.
See Doc. #72. Accordingly, this matter is ripe for
defendant has been convicted and exhausted his appeal rights,
a court may presume that “he stands fairly and finally
convicted.” United States v. Frady, 456 U.S.
152, 164 (1982). A motion brought pursuant to § 2255 is
a “means of collateral attack on a federal
sentence.” Cox v. Warden, Federal Detention
Ctr., 911 F.2d 1111, 1113 (5th Cir. 1990) (citation
omitted). There are four separate grounds upon which a
federal prisoner may move to vacate, set aside, or correct a
sentence under 28 U.S.C. § 2255: (1) the judgment was
imposed in violation of the Constitution or laws of the
United States; (2) the court was without jurisdiction to
impose the judgment; (3) the sentence exceeds the statutory
maximum sentence; or (4) the judgment or sentence is
otherwise subject to collateral attack. 28 U.S.C. §
2255(a). Collateral attack limits a movant's allegations
to those of “constitutional or jurisdictional
magnitude.” United States v. Samuels, 59 F.3d
526, 528 (5th Cir. 1995) (citation omitted). Relief under
§ 2255 is reserved, therefore, for violations of
“constitutional rights and for that narrow compass of
other injury that could not have been raised on direct appeal
and, would, if condoned, result in a complete miscarriage of
justice.” United States v. Capua, 656 F.2d
1033, 1037 (5th Cir. 1981).
Ineffective Assistance of Counsel
a substantial showing of the denial of his Sixth Amendment
right to the reasonably effective assistance of counsel, a
movant must satisfy the standard set forth in Strickland
v. Washington, 466 U.S. 668 (1984), which requires him
to demonstrate “that counsel's performance was
deficient, ” and that “the deficient performance
prejudiced the defense.” Strickland, 466 U.S.
at 687. To establish deficient performance, the movant
“must show that counsel's representation fell below
an objective standard of reasonableness.” Id.
at 687-88. The court's scrutiny of counsel's
performance must be “highly deferential.”
Id. at 689. To prove prejudice, the movant must
demonstrate that the result of the proceedings would have
been different if counsel had performed effectively.
Id. at 694. The prejudice inquiry does not merely
require that the movant raise the “possibility of a
different outcome, ” but rather, it requires the movant
to “demonstrate that the prejudice rendered sentencing
‘fundamentally unfair or unreliable.'”
Crane v. Johnson, 178 F.3d 309, 312 (5th Cir. 1999)
(quoting Lockhart v. Fretwell, 506 U.S. 364, 369
petitioner enters a guilty plea, he waives all claims of
ineffective assistance of counsel except those that relate to
the voluntariness of the plea itself. See United States
v. Cavitt, 550 F.3d 430, 441 (5th Cir. 2008). In order
to prove that the alleged ineffectiveness relates to the
guilty plea, the petitioner must show that there is a
reasonable probability that, but for counsel's errors,
the petitioner would not have pleaded guilty and would have
insisted on going to trial. See United States v.
Juarez, 672 F.3d 381, 385 (5th Cir. 2012) (citations and
quotation marks omitted). A reasonable probability is one
sufficient to undermine confidence in the outcome.
Id. at 388.
claims that his attorney rendered ineffective assistance in
failing to object to the Court's consideration of
uncharged offenses in reaching his sentence and in failing to
challenge the Court's consideration ...