Henderson v. United States

UMNIIDTDEDLE S TDAISTTERSI DCTIS OTRF IFCLTO CROIDUAR T

TAMPA DIVISION

UNITED STATES OF AMERICA

v. CASE NO. 8:14-cr-366-SDM-AEP

8:18-cv-2657-SDM-AEP

OCTAVIUS R. HENDERSON

____________________________________

ORDER

Octavius R. Henderson moves under 28 U.S.C. § 2255 to vacate his

conviction and sentence for conspiracy to possess with intent to distribute five or

more kilograms of cocaine, for which he is imprisoned for 240 months. Both the

conviction and the sentence are in accord with his plea agreement. Henderson

claims he received ineffective assistance of counsel, but he is entitled to no relief

because his claims are waived by his guilty plea and lack merit.

I. BACKGROUND

Henderson was charged with conspiracy to possess with intent to distribute

five or more kilograms of cocaine (Count One) and possession with the intent to

distribute 500 grams or more of cocaine (Count Two). The United States filed an

Information and Notice of Prior Convictions, detailing Henderson’s state felony drug

convictions. The notice explained that under 21 U.S.C. § 841(b)(1)(A) and (B)

Henderson faced a minimum sentence of 20 years if convicted of Count One and a

minimum sentence of 10 years if convicted of Count Two. (Crim. Doc. 42)

Under a plea agreement Henderson pleaded guilty to Count One. He was

sentenced to 240 months. Henderson appealed. After an “independent examination

of the entire record” revealed no arguable issues of merit, his conviction and sentence

were affirmed. United States v. Henderson, 706 F. App’x 633 (11th Cir. 2017).

Henderson now moves to vacate his conviction and sentence by raising five

grounds of ineffective assistance of counsel.

II. INEFFECTIVE ASSISTANCE OF COUNSEL STANDARD

“[T]he cases in which habeas petitioners can properly prevail on the ground of

ineffective assistance of counsel are few and far between.” Waters v. Thomas, 46 F.3d

1506, 1511 (11th Cir. 1995) (en banc) (quoting Rogers v. Zant, 13 F.3d 384, 386 (11th

Cir. 1994)). As Sims v. Singletary, 155 F.3d 1297, 1305 (11th Cir. 1998), explains,

Strickland v. Washington, 466 U.S. 668 (1984), governs an ineffective assistance of

counsel claim:

The law regarding ineffective assistance of counsel claims is

well settled and well documented. In Strickland v. Washington,

466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the

Supreme Court set forth a two-part test for analyzing ineffective

assistance of counsel claims. According to Strickland, first, the

defendant must show that counsel’s performance was deficient.

This requires showing that counsel made errors so serious that

counsel was not functioning as the “counsel” guaranteed the

defendant by the Sixth Amendment. Second, the defendant

must show that the deficient performance prejudiced the

defense. This requires showing that counsel’s errors were so

serious as to deprive the defendant of a fair trial, a trial whose

result is reliable. Strickland, 466 U.S. at 687, 104 S. Ct. 2052.

Strickland requires proof of both deficient performance and consequent

prejudice. Strickland, 466 U.S. at 697 (“There is no reason for a court deciding an

ineffective assistance claim . . . to address both components of the inquiry if the

defendant makes an insufficient showing on one.”); Sims, 155 F.3d at 1305 (“When

applying Strickland, we are free to dispose of ineffectiveness claims on either of its

two grounds.”). “[C]ounsel is strongly presumed to have rendered adequate

assistance and made all significant decisions in the exercise of reasonable

professional judgment.” Strickland, 466 U.S. at 690. “[A] court deciding an actual

ineffectiveness claim must judge the reasonableness of counsel’s challenged conduct

on the facts of the particular case, viewed as of the time of counsel’s conduct.”

466 U.S. at 690. Strickland requires that “in light of all the circumstances, the

identified acts or omissions were outside the wide range of professionally competent

assistance.” 466 U.S. at 690.

Henderson must demonstrate that counsel’s alleged error prejudiced the

defense because “[a]n error by counsel, even if professionally unreasonable, does not

warrant setting aside the judgment of a criminal proceeding if the error had no effect

on the judgment.” 466 U.S. at 691–92. To meet this burden, Henderson must show

“a reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” 466 U.S. at 694.

Strickland cautions that “strategic choices made after thorough investigation of

law and facts relevant to plausible options are virtually unchallengeable; and strategic

choices made after less than complete investigation are reasonable precisely to the

extent that reasonable professional judgments support the limitations on

investigation.” 466 U.S. at 690–91. Henderson cannot meet his burden merely by

showing that the avenue chosen by counsel proved unsuccessful.

The test has nothing to do with what the best lawyers would

have done. Nor is the test even what most good lawyers would

have done. We ask only whether some reasonable lawyer at the

trial could have acted, in the circumstances, as defense counsel

acted at trial . . . . We are not interested in grading lawyers’

performances; we are interested in whether the adversarial

process at trial, in fact, worked adequately.

White v. Singletary, 972 F.2d 1218, 1220–21 (11th Cir. 1992); accord Chandler v. United

States, 218 F.3d 1305, 1313 (11th Cir. 2000) (“To state the obvious: the trial lawyers,

in every case, could have done something more or something different. So,

omissions are inevitable . . . . [T]he issue is not what is possible or ‘what is prudent

or appropriate, but only what is constitutionally compelled.’”) (en banc) (quoting

Burger v. Kemp, 483 U.S. 776, 794 (1987)); see also Jones v. Barnes, 463 U.S. 745, 751

(1983) (counsel has no duty to raise a frivolous claim).

III. GROUND ONE

Henderson claims that counsel was ineffective for not objecting to

“contradictory, unreliable statements” from cooperating defendants, as contained in

the criminal complaint, that were uttered before the charged conspiracy.

(Civ. Doc. 1 at 15)

Henderson waived this claim when he pleaded guilty. Tollett v. Henderson,

411 U.S. 258, 267 (1973), holds that a guilty plea waives a non-jurisdictional

challenge to the constitutionality of the conviction:

[A] guilty plea represents a break in the chain of events which

has preceded it in the criminal process. When a criminal

guilty of the offense with which he is charged, he may not

thereafter raise independent claims relating to the deprivation

of constitutional rights that occurred prior to the entry of the

guilty plea.

This waiver of rights precludes most challenges to the conviction. “[W]hen the

judgment of conviction upon a guilty plea has become final and the offender seeks to

reopen the proceeding, the inquiry is ordinarily confined to whether the underlying

plea was both counseled and voluntary.” United States v. Broce, 488 U.S. 563, 569

(1989). See also United States v. Patti, 337 F.3d 1217, 1320 (11th Cir. 2003)

(“Generally, a voluntary, unconditional guilty plea waives all non-jurisdictional

defects in the proceedings.”). “A defendant who enters a plea of guilty waives all

nonjurisdictional challenges to the constitutionality of the conviction[.]” Wilson v.

United States, 962 F.2d 996, 997 (11th Cir. 1992).

Henderson acknowledged this waiver while under oath at the plea hearing

(Crim. Doc. 96 at 26):

THE COURT: [I]f you have any objections as to how the

charges were brought against you or as to how the evidence

was gathered in the case, you are waiving any objections to

those matters by entering a plea of guilt.

Do you understand that?

[HENDERSON]: Yes, sir.

Henderson offers no argument or evidence to disavow his sworn statements at the

plea hearing. See United States v. Rogers, 848 F.2d 166, 168 (11th Cir. 1988) (“[W]hen

a defendant makes statements under oath at a plea colloquy, he bears a heavy burden

to show his statements were false.”).

Also, this claim lacks merit because the criminal complaint was superseded by

the grand jury indictment. (Crim. Docs. 1 and 19.) See United States v. Mostafa

Hussaini, No. 19-60387, 2022 WL 138474, at *6 n.3 (S.D. Fla. Jan. 14, 2022)

(explaining that, when ruling on a motion to dismiss an indictment, courts

“shouldn’t consider the Complaint or the Affidavit because those documents [have]

been superseded by the Indictment”). Counsel is not ineffective for not asserting a

meritless challenge to the criminal complaint that was superseded by the grand jury

indictment. Brewster v. Hetzel, 913 F.3d 1042, 1056 (11th Cir. 2019) (“Defense

counsel . . . need not make meritless motions or lodge futile objections.”); Bolender v.

Singletary, 16 F.3d 1547, 1573 (11th Cir. 1994) (“[I]t is axiomatic that the failure to

raise non-meritorious issues does not constitute ineffective assistance.”).

IV. GROUNDS TWO and THREE

Henderson asserts related claims in Grounds Two and Three. He claims that

counsel failed to explain the elements of conspiracy in a way he could understand.

He asserts that he “should have had a mental health expert to help prepare for his

defense” because he suffers from unspecified “mental illnesses and conditions” that

impair his cognition. He claims he would not have pleaded guilty if he understood

the conspiracy elements. (Civ. Doc. 1 at 17) Also, he claims that counsel failed to

advise him that he could plead guilty to the possession charge and proceed to trial on

the conspiracy charge. (Id. at 16) These claims are based on a pre-plea event—not

adequately explaining the conspiracy elements—and, as a consequence, are waived

by Henderson’s guilty plea.

Also, these claims lack merit. Henderson cannot demonstrate he was

prejudiced by counsel’s alleged failure to explain adequately the conspiracy elements

because those elements were explained to him during the plea hearing (Crim. Doc.

96 at 26–27):

THE COURT: . . . Let me explain to you . . . what the

government would have to prove beyond a reasonable doubt in

order to establish your guilt for Count One of the indictment.

Those elements are outlined for you in paragraphs A3 and A4

of the plea agreement starting on page two. The essential

elements for Count One include:

. . . [F]irst, that two or more persons in some way or

manner agreed to accomplish a common or unlawful plan as

charged in the indictment. The plan, as charged in the

indictment, is to possess with intent to distribute a quantity of

cocaine;

Second, that you, knowing the unlawful purpose of the

plan, willfully joined in it.

Additionally, in order for the mandatory minimum

sentence of 20 years, as well as the maximum sentence of life,

to be applicable as to Count One, the United States would also

have to establish beyond a reasonable doubt that the agreement

to possess with intent to distribute a quantity of cocaine

involved a quantity of five or more kilograms of cocaine.

Having stated that, do you feel you understand what the

government would have to prove beyond a reasonable doubt in

order to establish your guilt as charged in Count One?

[HENDERSON]: Yes, Sir.

THE COURT: Any questions about any of those elements?

[HENDERSON]: No, sir.

“[T]he representations of the defendant, his lawyer, and the prosecutor at [a

guilty plea] hearing, as well as any findings made by the judge accepting the plea,

constitute a formidable barrier in any subsequent collateral proceedings. Solemn

declarations in open court carry a strong presumption of verity.” Blackledge v. Allison,

431 U.S. 63, 74 (1977). See also United States v. Medlock, 12 F.3d 185, 187 (11th Cir.

1994) (“There is a strong presumption that the statements made during the [plea]

colloquy are true.”). “[T]he subsequent presentation of conclusory allegations

unsupported by specifics is subject to summary dismissal, as are contentions that in

the face of the record are wholly incredible.” Blackledge, 431 U.S. at 74. Other than

conclusory assertions, Henderson offers no argument or evidence to disavow his

affirmations under oath that he understood the conspiracy elements.

Also, Henderson provides no support for his claim that he suffers from a

mental illness or condition that impairs his cognition. During the plea hearing

Henderson acknowledged he was thinking clearly and that he understood the

purpose of the hearing. Counsel had no concerns about Henderson’s competency,

and the magistrate judge noted that “based upon Mr. Henderson’s responses to my

questions, as well as his demeanor, . . . he’s fully competent to enter a plea of guilt.”

(Crim. Doc. 96 at 5–6) Henderson advised the U.S. Probation Office “that he has no

problems with either his mental or emotional health and that he has never received

treatment[,]” that he can read and write English, and that he attended school until

the 9th grade. (Crim. Doc. 82 at ¶¶ 91, 97, 99)

Henderson fails to establish that counsel was ineffective for not having him

psychologically evaluated to determine his mental competency. See Alexander v.

Dugger, 841 F.2d 371, 375 (11th Cir. 1998) (“In order to demonstrate prejudice from

his lawyer’s failure to have him evaluated, [the movant] has to show that there was

at least a reasonable probability that a psychological evaluation would have revealed

that he was incompetent to stand trial.”). Other than Henderson’s conclusory

assertions about an unspecified mental illness, nothing in the record shows a

reasonable probability that he was incompetent. Consequently, Henderson

establishes neither that counsel’s explanation of the conspiracy elements was

deficient nor that there is a reasonable probability that but for counsel’s performance

he would not have pleaded guilty to the conspiracy charge and would have

proceeded to trial. See Hill v. Lockhart, 474 U.S. 52, 59 (1985).

V. GROUND FOUR

Henderson claims that counsel was ineffective for not objecting to the

21 U.S.C. § 841 sentencing enhancement. He argues that his prior drug convictions

are not felonies. This non-jurisdictional claim was waived by his knowing and

voluntary guilty plea. See United States v. DiFalco, 837 F.3d 1207, 1219 (11th Cir.

2016) (ruling that the notice requirement of 21 U.S.C. § 851 is not jurisdictional).

Also, the claim lacks merit. Title 21 U.S.C. § 802(44) (2014) defines “felony

drug offense” as a drug offense punishable by imprisonment for more than one year.

As a basis for the Section 851 enhancement, the Information and Notice of Prior

Convictions lists both Henderson’s 2004 conviction for possession of marijuana and

his 2009 conviction for possession of cocaine. Both of these prior drug convictions

qualify as third-degree felony convictions punishable by imprisonment not exceeding

five years. (Civ. Doc. 6-1 at 9 and 6-2 at 2–3) Counsel is not ineffective for not

asserting a meritless challenge the Section 851 enhancement.

VI. GROUND FIVE

Henderson’s final claim, that counsel was ineffective for not challenging the

drug quantity calculation, was waived by his guilty plea and lacks merit. Adopted at

the hearing, the factual basis of Henderson’s plea agreement establishes that the

conspiracy involved no less than 50 kilograms of cocaine. (Crim. Doc. 49 at 18)

During the plea hearing Henderson agreed that he and his codefendant acquired and

distributed no less than 50 kilograms of cocaine. (Crim. Doc. 96 at 28–29)

Henderson fails to explain how counsel was ineffective in not challenging the drug

quantity calculation. His vague and conclusory assertions are insufficient to

establish ineffective assistance of counsel. Tejada v. Dugger, 941 F.2d 1551, 1559

(11th Cir. 1991) (holding that conclusory statements, unsupported by specific facts or

the record, are insufficient to state a claim for ineffective assistance of counsel).

Henderson’s motion under Section 2255 to vacate, set aside, or correct his

sentence is DENIED. The clerk is directed to enter a judgment against Henderson,

close this case, and enter a copy of this order in 8:14-cr-366-SDM-AEP.

CERTIFICATE OF APPEALABILITY

AND LEAVE TO APPEAL IN FORMA PAUPERIS

Henderson is not entitled to a certificate of appealability (“COA”). A prisoner

moving under Section 2255 has no absolute entitlement to appeal a district court’s

denial of his motion to vacate. 28 U.S.C. § 2253(c)(1). Rather, a district court must

first issue a COA. Section 2253(c)(2) permits issuing a COA “only if the applicant

has made a substantial showing of the denial of a constitutional right.” To merit a

certificate of appealability, Henderson must show that reasonable jurists would find

debatable both (1) the merits of the underlying claims and (2) the procedural issues

he seeks to raise. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 478

(2000); Eagle v. Linahan, 279 F.3d 926, 935 (11th Cir 2001). Because he fails to show

that reasonable jurists would debate either the merits of the claims or the procedural

issues, Henderson is entitled to neither a certificate of appealability nor an appeal in

forma pauperis.

A certificate of appealability is DENIED. Leave to appeal in forma pauperis is

DENIED. Henderson must obtain permission from the circuit court to appeal in

forma pauperis.

ORDERED in Tampa, Florida, on February 15th, 2022.

ALTAD.W AA dyelen

STEVEND.MERRYDAY __

UNITED STATES DISTRICT JUDGE

-11-