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Strong v. United States

United States District Court, N.D. Mississippi, Aberdeen Division

February 13, 2019

ANTHONY STRONG MOVANT
v.
UNITED STATES OF AMERICA RESPONDENT

          MEMORANDUM OPINION AND ORDER

          NEAL BIGGERS SENIOR U.S. DISTRICT JUDGE

         Federal 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[1], and Strong's motion will be denied.

         I. Background Facts and Procedural History

         On May 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.

         The PSR 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, 2017. Id.

         On 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., Doc. #62.

         On or 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 & #70.

         Strong 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 review.

         II. Legal Standard

         After a 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).

         III. Ineffective Assistance of Counsel

         To make 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 (1993)).

         Where a 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.

         Strong 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 ...


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