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Britton v. United States

United States District Court, W.D. Virginia, Harrisonburg Division

April 19, 2017



          Michael F. Urbanski United States District Judge.

         Alfanco Dexter Britton, a federal inmate initially proceeding pro se, filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. In his pro se petition, Britton alleges counsel provided ineffective assistance by (1) inaccurately advising him that he would fall under the career offender guideline; (2) failing to advise him of the desirability of accepting a plea agreement; (3) failing to seek a competency evaluation; (4) failing to object to imposition of $900.00 in mandatory special assessments; (5) failing to object to the sentencing guidelines enhancement for obstruction of justice; and (6) failing to request a jury instruction on a mere buyer-seller relationship.

         Pursuant to Standing Order 2015-5, the Federal Public Defender ("FPD") was appointed to represent Britton on issues arising from the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015)("Johnson II"), [1] concerning the residual clause of the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e)(2)(B)(ii). The FPD filed a Supplemental Motion for Relief Pursuant to 28 U.S.C. § 2255 on February 4, 2016, addressing the impact of Johnson II to this case.

         On October 14, 2016, the FPD filed a supplemental memorandum in support of Britton's petition, raising additional claims. The supplemental memorandum stated that "the gist of Britton's various complaints of ineffective assistance of counsel involves the failure of his attorney to explain adequately to him the strength of the government's case against him, to accurately explain to him the laws controlling his sentencing, and to advise him to accept a plea agreement rather than go to trial." ECF No. 668, at 8. The supplemental memorandum also provided additional briefing on the Johnson II issue.

         The court will first address the issues which can be determined as a matter of law, including the Johnson II claim, before identifying those issues which require an evidentiary hearing.


         On April 19, 2012, a federal grand jury sitting in Harrisonburg, Virginia, charged Britton and multiple codefendants with conspiring to distribute and possess with intent to distribute 280 grams or more of a mixture or substance containing cocaine base ("crack cocaine") and nine separate counts of crack cocaine distribution, in violation of 21 U.S.C. §§ 846, 841(a) and 841(b)(1)(A). On May 23, 2012, the U.S. Attorney filed an information pursuant to 21 U.S.C. § 851(a)(1) notifying Britton that he was subject to mandatory life in prison based on his prior felony drug offenses in Florida. Following trial, a jury found Britton guilty of the crack cocaine conspiracy charge and eight counts of crack cocaine distribution.[2] Britton was sentenced on April 17, 2013. As required by the statutory enhancement, the criminal judgment entered on April 18, 2013 sentenced Britton to mandatory life in prison on the conspiracy charge and 360 months on each of the distribution charges, all to run concurrently. Britton filed a timely appeal, which the Fourth Circuit Court of Appeals denied on February 4, 2014. The Supreme Court denied certiorari on June 2, 2014. On March 26, 2015, Britton timely filed his § 2255 petition.


         To state a viable claim for relief under § 2255, a petitioner must prove: (1) that his sentence was "imposed in violation of the Constitution or laws of the United States;" (2) that "the court was without jurisdiction to impose such a sentence;" or (3) that "the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a). Britton bears the burden of proving grounds for a collateral attack by a preponderance of the evidence. Jacobs v. United States, 350 F.2d 571, 574 (4th Cir. 1965).


         Criminal defendants have a Sixth Amendment right to effective legal assistance. Strickland v. Washington, 466 U.S. 668, 687 (1984). The proper vehicle for a defendant to raise an ineffective assistance of counsel claim is by filing a § 2255 motion. United States v. Baptiste, 596 F.3d 214, 216 n.1 (4th Cir. 2010). However, ineffective assistance claims are not lightly granted; "[t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the [proceeding] cannot be relied on as having produced a just result." Strickland, 466 U.S. at 686. Accordingly, in order to establish a viable claim of ineffective assistance of counsel, a defendant must satisfy a two-prong analysis showing both that counsel's performance fell below an objective standard of reasonableness and establishing prejudice due to counsel's alleged deficient performance. Strickland. 466 U.S. at 687. When considering the reasonableness prong of Strickland, courts apply a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689; see also Gray v. Branker, 529 F.3d 220, 228-29 (4th Cir. 2008). Counsel's performance is judged "on the facts of the particular case, " and assessed "from counsel's perspective at the time." Id.

         To satisfy the prejudice prong of Strickland, a defendant must show that there is a reasonable probability that, but for counsel's unprofessional error, the outcome of the proceeding would have been different. Id. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome. "Id.

         1. Strickland Claim Regarding Career Offender Status.

         Britton first claims that his counsel provided deficient representation because counsel inaccurately advised him that he would be considered a career offender under § 4B1.1(a) of the United States Sentencing Guidelines. Britton claims that had his counsel advised him that he would not be considered a career offender, he would have pled guilty and not risked a jury trial. For many reasons, Britton's claim fails.

         When it was written in 2013, Britton's Presentence Investigation Report ("PSR") was correct in its conclusion that Britton met the requirements of a career offender. As reflected in paragraphs 40 and 43 of the PSR, Britton had qualifying Florida felony convictions of robbery in 2005 and sale of cocaine in 2008. At that time, Johnson II had not yet been decided, and the residual clause of the career offender guideline had not yet been subject to a vagueness challenge.

         Nonetheless, Britton's petition raises two challenges to the application of the career offender guideline to his case. First, Britton asserts that as the cocaine convictions referenced in his § 851 notice were for possession, they do not qualify as controlled substance offenses under the career offender guideline. To be sure, a conviction for mere possession of a controlled substance does not qualify as a controlled substance offense for the purposes of the career offender guideline. Section 4B1.2 of the guidelines requires at least a conviction for possession with the intent to distribute. While the § 851 notice of prior conviction filed in Britton's case on May 23, 2012 included indictments for three of Britton's prior drug felonies, those offenses were for cocaine possession and transportation of drug paraphernalia, and not distribution. ECF No. 97. Thus, Britton argues, his lawyer incorrectly advised him that he was subject to the career offender guideline.

         Britton's argument misses the mark. His argument ignores the fact that in addition to the cocaine possession and transportation of drug paraphernalia convictions referenced in the § 851 notice and paragraphs 41 and 45 of the PSR, Britton had also been convicted in Florida state court of two counts of sale of cocaine on December 17, 2008 as reflected in paragraph 43 of the PSR. While the cocaine possession convictions referenced in the 851 notice and paragraphs 41 and 45 of the PSR do not qualify as controlled substance offenses for the purpose of the career offender guideline in § 4B 1.1, the ¶ 43 cocaine sale convictions plainly do qualify.[3]

         Britton's second argument rests on the Supreme Court's 2015 decision in Johnson II, which found the residual clause of the Armed Career Criminal Act ("ACCA") to be unconstitutionally vague. Because the career offender guideline contains a residual clause similar to that found in the ACCA, Britton argues his lawyer was ineffective for not recognizing the vagueness inherent in the career offender guideline and advising him of it.

         This argument concerns Britton's 2005 Florida robbery conviction, in violation of Florida Statute § 812.13(1). Because the Florida robbery statute may be violated through the use of any degree of force, Andre v. State, 431 So.2d 1042 (Fla. 1983), it cannot meet the definition of a crime of violence under the force clause of § 4B1.2(a)(1). See Johnson I, 559 U.S. at 136, 140 (restricting the application of the force clause of the ACCA to "violent force" - that is "strong physical force, " which is capable of causing physical pain or injury to another person.")'; see also United States v. Gardner, 823 F.3d 793 (4th Cir. 2016)(concerning the North Carolina robbery statute); United States v. Winston, No. 16-7252 (4th Cir. March 13, 2017)(concerning the Virginia robbery statute). Thus, robbery under Florida law could only be a crime a violence under the residual clause then found in U.S.S.G § 4B1.2(a)(2)'s residual clause.[4] And until Johnson II declared the residual clause in the ACCA unconstitutional in 2015, no argument could be raised that a violation of the Florida robbery statute was improperly categorized as a crime of violence for the purposes of the career offender guideline.[5] Thus, at the time he was sentenced in 2013, the Florida robbery statute fell under the then operative residual clause of § 4B 1.2(a)(2), and constituted Britton's second qualifying conviction.

         As such, there is no question that at the time of his trial in this case in October, 2012 and sentencing in April, 2013, that Britton was properly classified as a career offender based on his prior Florida felony convictions for sale of cocaine in 2008 and robbery in 2005. Accordingly, Britton's claim for ineffective assistance of counsel for not objecting to the application of the career offender guideline rings hollow as such application was appropriate at the time.

         At best, Britton's claim of ineffective assistance of counsel regarding the career offender guideline devolves to a claim that his trial counsel was ineffective for failing to predict, at the time of Britton's trial in 2012, that the Supreme Court would declare the residual clause of the ACCA unconstitutional in 2015 and that such ruling would apply to his counsel's assessment that Britton met the career offender guideline. Counsel is not ineffective for applying the law as it exists and for failing to predict unforeseen changes in the law. This is particularly true here where Britton's prosecution was contemporaneous with that of ...

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