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Scribner v. United States

United States District Court, N.D. Texas, Dallas Division

July 31, 2017

DONALD RAYMOND SCRIBNER, II, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Criminal No. 3:10-CR-233-O

          ORDER

          REED O'CONNOR UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on remand from the Fifth Circuit. See United States v. Scribner, 832 F.3d 252 (5th Cir. 2016). On March 8, 2013, Petitioner Donald Raymond Scribner II filed a Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255. ECF No. 2. Petitioner raised two claims of ineffective assistance against his trial counsel, arguing: (1) his counsel failed to advise him that he faced an enhanced sentence under the career offender sentencing guideline and had counsel correctly advised him of his guideline range, he would have pleaded guilty instead of proceeding to trial; and (2) his counsel was ineffective for failing to object to the accuracy of the career offender guideline enhancement in his Presentence Report (“PSR”).

         This case was referred to United States Magistrate Judge Irma C. Ramirez, who entered her Findings, Conclusions, and Recommendation (“R&R”) on July 2, 2014. The Magistrate Judge recommended that Petitioner's motion be granted based on his first ground for relief and denied as to his second. See R&R, ECF No. 16. The Court then conducted a de novo review of the R&R and declined to accept the Magistrate Judge's findings that Petitioner was prejudiced by trial counsel's failure to advise him that he face an enhanced sentence under the career offender sentencing guideline. Aug. 28, 2014 Order 2, ECF No. 17.

         Petitioner appealed and the Fifth Circuit vacated the Court's judgment on the grounds that the Court had implicitly rejected the Magistrate Judge's credibility determinations, which were made after an evidentiary hearing, without conducting its own evidentiary hearing. Scribner, 832 F.3d at 254. Following remand, the Court held its own evidentiary hearing on November 21, 2016, and Petitioner's motion is now once again before the Court.

         Having considered the record in this matter and the testimony at the November 21, 2016 evidentiary hearing, the Court finds that Petitioner has not shown a reasonable probability that he was prejudiced by trial counsel's error in failing to identify the career offender enhancement and Petitioner's § 2255 motion should be DENIED.

         I. PROCEDURAL AND FACTUAL BACKGROUND[1]

         A grand jury returned an indictment against Petitioner on August 17, 2010. Count one charged Petitioner and four co-defendants with conspiracy to manufacture and to possess with intent to distribute 100 or more plants of marijuana in violation of 21 U.S.C. § 846. Count three charged him, and two co-defendants (A.S. and K.P.), with aiding and abetting the possession of 50 or more marijuana plants with the intent to distribute in violation of 21 U.S.C. § 841(a), (b)(1)(C) and 18 U.S.C. § 2.[2] United States v. Scribner, et al., No. 3-10-CR-233-O (CR, Docket No. 32).[3] A.S. and K.P. pleaded guilty to count three. CR, Docket Nos. 49, 52, 53, 58, 109, 113.

         Before trial, the Government proposed that Petitioner plead guilty to counts one and three and waive his right to appeal. Harper Aff. at 2, ECF No. 7. Around that time, Petitioner was advised by his trial counsel that if he pleaded guilty to count three of the indictment, the applicable advisory sentencing guideline range would be 30-37 months based on his criminal history level and the amount of marijuana seized. June 25, 2014 Hr'g Tr. at 8:19-25. Trial counsel advised him that if he pleaded not guilty and was convicted, the applicable advisory sentencing guideline range would be 37-46 months imprisonment. Id. At the time, trial counsel was unaware that Petitioner would be classified as a career offender and that as a career offender Petitioner was subject to a guideline range of 210 to 240 months if he proceeded to trial and was convicted, or 151 to 188 months if he pleaded guilty and obtained an acceptance of responsibility reduction. Id. at 12:18-25, 13:1-6. Relying on his trial counsel's incorrect advice as to his sentencing guideline range, Petitioner rejected the Government's proposed plea agreement and his case was tried before a jury. CR, Docket Nos. 82-84.

         On January 12, 2011, the jury found Petitioner guilty of possession with intent to distribute 50 or more marijuana plants (count three) and not guilty of conspiracy to manufacture and to possess with intent to distribute 100 or more marijuana plants (count one). CR, Docket No. 85. On April 28, 2011, the Court sentenced Petitioner to a term of 210 months in prison, followed by a three-year term of supervised release, to run concurrent with any sentence imposed in two then-pending state cases. CR, Docket No. 117. His conviction and sentence were affirmed on direct appeal. United States v. Scribner, 469 F. App'x 384 (5th Cir. 2012). As recounted by the Fifth Circuit:

Scribner was discovered by authorities in the process of dismantling a marijuana grow house in an effort to avoid police detection. A large amount of marijuana and grow equipment were found in the house, which Scribner possessed a key to in his wallet. . . . Further, Scribner acknowledged that he had been hired to dismantle the grow house and move the contents via a U-Haul truck to another location. He further acknowledged to dismantling another grow house belonging to the same organization days before his arrest. Scribner admitted to knowing that the organization was involved in the distribution of marijuana and that it consisted of several grow houses.

Scribner, 469 F. App'x at 385-86.

         On March 18, 2013, Petitioner filed the instant motion pursuant to 28 U.S.C. § 2255. ECF No. 2. He raises two claims of ineffective assistance against his trial counsel: (1) his counsel failed to advise him that he faced an enhanced sentence under the career offender sentencing guideline and had counsel correctly advised him of his guideline range, he would have pleaded guilty instead of proceeding to trial; and (2) his counsel was ineffective for failing to object to the accuracy of the career offender guideline enhancement in his Presentence Report (“PSR”).

         The motion was referred to Magistrate Judge Ramirez, who appointed Petitioner counsel and held an evidentiary hearing. See Min. Entry, ECF No. 15. At the hearing, Petitioner and his trial counsel testified.

         Following the evidentiary hearing, the Magistrate Judge issued her R&R. She found that the Government had conceded that trial counsel's performance was deficient because counsel grossly underestimated the applicable sentencing ranges. R&R 8, ECF No. 16. She then considered whether Petitioner was prejudiced by the ineffective assistance of counsel under Lafler v. Cooper, 566 U.S. 156 (2012). She found that the parties did not dispute that this Court would have accepted the terms of the plea offer, because the Court had accepted the same plea from Petitioner's co-defendants. R&R 8, ECF No. 16. Nor did the parties dispute that the lower end of Petitioner's sentencing guideline range would have been adjusted downward almost five years with acceptance of responsibility. Id. at 8-9. Lastly, based on the testimony of Petitioner and his trial counsel, the Magistrate Judge found that Petitioner had shown a reasonable probability that had he been accurately advised as to the applicable guideline range, Petitioner would have accepted the plea offer before it was withdrawn. Id. at 9-11. As to Petitioner's second ground for relief, the Magistrate Judge found trial counsel was not ineffective for failing to object to the career offender enhancement in the PSR, as any such objection would have been meritless. Id. at 11-13. Because Petitioner did not receive effective assistance of counsel during the plea bargaining process, the Magistrate Judge found Petitioner's Sixth Amendment right to counsel was violated and the judgment in Petitioner's criminal case should be vacated. Id. at 13.

         The Court reviewed the Magistrate Judge's findings and conclusions de novo. See generally Aug. 28, 2014 Order, ECF No. 17. The Court adopted the findings and conclusion denying Petitioner's second ground for relief, that trial counsel was deficient for not objecting to the career offender enhancement. Id. at 17. The Court also adopted the conclusion that Petitioner had received deficient counsel as to his sentencing guideline range. Id. However, the Court declined to accept the Magistrate Judge's finding that Petitioner was prejudiced by the error. Specifically, the Court declined to adopt the Magistrate Judge's findings that the Court would have accepted Petitioner's guilty plea. Id. at 12-14. The Court wrote:

In stark contrast to the testimony of the co-defendants at their re-arraignments, the record in this matter discloses nothing other than Petitioner's dogged insistence of innocence. On questioning by the prosecutor, trial counsel testified that Petitioner maintained his innocence as to counts one and three throughout the case, and never indicated any intention to plead guilty to these counts. In addition to trial counsel's testimony, Petitioner's own testimony reveals that he believed he was not guilty of the elements of the crimes charged in counts one and three of the indictment. The only thing he agreed he intended to do was throw marijuana away, because he believed it was not worth anything. On cross-examination, Petitioner continued to vacillate about whether he was in fact guilty of these offenses. . . . In context, the Court can only conclude that Petitioner would not have admitted the factual basis necessary to support a plea of guilty.

Id. at 13-14, ECF No. 17.

         The Court also rejected the finding that Petitioner's sentencing guideline would have been adjusted downward for acceptance of responsibility. Id. at 15. The Court held that

the record discloses no indication that Petitioner at any time ‘clearly' accepted responsibility for his offense of conviction. . . . [E]ven at his § 2255 evidentiary hearing, Petitioner maintained he was innocent of any intent to distribute. . . . [And] there is no record evidence showing that after conviction and before ...

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