United States District Court, N.D. Texas, Dallas Division
O'CONNOR UNITED STATES DISTRICT JUDGE.
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
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.
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
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.
PROCEDURAL AND FACTUAL BACKGROUND
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. United States v. Scribner, et
al., No. 3-10-CR-233-O (CR, Docket No.
A.S. and K.P. pleaded guilty to count three. CR, Docket Nos.
49, 52, 53, 58, 109, 113.
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.
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.
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”).
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.
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.
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.
Court also rejected the finding that Petitioner's
sentencing guideline would have been adjusted downward for
acceptance of responsibility. Id. at 15. The Court
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 ...