Lynch v. United States

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

WESTERN DIVISION

Nicholas J. Lynch, )

)

Petitioner,

)

7:20-cv-08003-LSC

v. ) 7:18-cr-00191-LSC-GMB

)

United States of America,

)

Respondent. )

MEMORANDUM OF OPINION

Pursuant to 28 U.S.C. § 2255 (“§ 2255”), Nicholas J. Lynch (“Lynch”)

filed with the Clerk of this Court a motion to vacate, set aside, or

otherwise correct his sentence of 60 months’ imprisonment. (Doc. 1.) The

United States responded in opposition to the motion. (Doc. 6.) For the

following reasons, Lynch’s § 2255 motion is due to be dismissed.

I. BACKGROUND

Prompted by complaints of drug activity, agents of the West

Alabama Narcotics Task Force knocked on the door of Room 123 of the

Roadway Inn in Tuscaloosa. (Cr. Doc. 18 at 2.) Lynch opened the door,

and the agents detected the scent of marijuana emanating from the room.

(Id.) Lynch consented to a search of the room. (Id. at 3.) Atop the

nightstand, agents observed a Glock, .40 caliber pistol as well as crack

and powder cocaine. (Id. at 2–3.) The pistol was loaded, but not

chambered, with twelve rounds of ammunition. (Id.)

A grand jury subsequently indicted Lynch on two counts: Count I—

possession of crack cocaine with the intent to distribute in violation of 21

U.S.C. § 841(a)(1) and (b)(1)(C) and Count II—possession of a firearm in

furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c).

(Cr. Doc. 1.) The Court appointed Jason Neff as CJA counsel. (Cr. Docs.

13–15.)

Lynch entered, and this Court accepted, a guilty plea as to Count I

of the indictment. (Cr. Doc. 18.) The government agreed to the dismissal

of Count II. (Id. at 1.) Pursuant to his plea agreement, Lynch agreed that

“the facts stated [in the plea agreement] are substantially correct and

that the Court can use these facts in calculating [his] sentence.” (Id. at

4.)

Before the sentencing hearing, the Court granted Jason Neff’s

motion to withdraw, and Victor Revill thereafter represented Lynch. (Cr.

Docs. 20–24.) The Court sentenced Lynch to 60 months’ imprisonment—

to run concurrently with any yet-to-be imposed sentences of the

Tuscaloosa County Circuit Court. (Cr. Doc. 27 at 2.) This Court entered

judgment on January 23, 2019. (Cr. Doc. 27.) Lynch did not file an appeal.

Lynch executed the present § 2255 motion on January 8, 2020, and

the Clerk of this Court entered the motion into the record on January 21,

2020.1 (Doc. 1.) Lynch argues that his attorney should have objected to

the 2D1.1(b)(1) firearm enhancement, and that his attorney should have

adequately apprised him of the consequences of the enhancement.2 (Id.

at 4.) Lynch claims that “[the] lawyer told me that I would qualify for the

year off from taking/graduating R.D.A.P.” (Residential Drug Abuse

Program) (Id.) On January 31, 2022, Lynch was released from

confinement and now lives at a residential address.3 (See doc. 10).

As Lynch filed the instant § 2255 motion within one year after the

date on which his conviction became final, the motion is timely. See 28

U.S.C. § 2255(f)(1). By all accounts, Lynch has not filed a prior § 2255

motion, so it is not “second or successive” within the meaning of the Anti-

1 Applying the “mailbox rule,” the Eleventh Circuit deems a prisoner’s § 2255 motion

as filed upon the “date that he delivered it to prison authorities for mailing,

presumptively, . . . the day that he signed it.” Jones v. United States, 304 F.3d 1035,

1038 n.7 (11th Cir. 2002) (per curiam).

2 Because Lynch is a pro se litigant, the Court liberally construes his pleadings. See

Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998) (per curiam).

3 Find an Inmate, FEDERAL BUREAU OF PRISONS, https://www.bop.gov/inmateloc/

(searched “Nicholas Jerisaac Lynch”) (last visited February 21, 2023).

Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”). See 28

U.S.C. §§ 2255(h), 2244(b)(3)(A).

II. STANDARD OF REVIEW

Because collateral review is not a substitute for direct appeal, the

grounds for collateral attack on final judgments pursuant to 28 U.S.C. §

2255 are limited. A petitioner is entitled to relief under § 2255 if the court

imposed a sentence that (1) violated the Constitution or laws of the

United States, (2) exceeded its jurisdiction, (3) exceeded the maximum

authorized by law, or (4) is otherwise subject to collateral attack. See 28

U.S.C. § 2255; United States v. Phillips, 225 F.3d 1198, 1199 (11th Cir.

2000); United States v. Walker, 198 F.3d 811, 813 n.5 (11th Cir. 1999).

“Relief under 28 U.S.C. § 2255 ‘is reserved for transgressions of

constitutional rights and for that narrow compass of other injury that

could not have been raised in direct appeal and would, if condoned, result

in a complete miscarriage of justice.’” Lynn v. United States, 365 F.3d

1225, 1232 (11th Cir. 2004) (quoting Richards v. United States, 837 F.2d

965, 966 (11th Cir. 1988)).

In litigation stemming from a § 2255 motion, “[a] hearing is not

required on patently frivolous claims or those which are based upon

unsupported generalizations. Nor is a hearing required where the

[movant’s] allegations are affirmatively contradicted by the record.”

Holmes v. United States, 876 F.2d 1545, 1553 (11th Cir. 1989) (quoting

Guerra v. United States, 588 F.2d 519, 520–21 (5th Cir. 1979)). However,

an evidentiary hearing is appropriate if, “accept[ing] all of the petitioner’s

alleged facts as true,” the movant has “allege[d] facts which, if proven,

would entitle him to relief.” Diaz v. United States, 930 F.2d 832, 834 (11th

Cir. 1991) (quoting Agan v. Dugger, 835 F.2d 1337, 1338 (11th Cir. 1987)

and Futch v. Dugger, 874 F.2d 1483, 1485 (11th Cir. 1989)).

III. DISCUSSION

A. Mootness

In his § 2255 motion, Lynch requests the following relief: “Removal

of the firearm enhancement, so that I may receive the year benefits from

the RDAP that I am about to graduate.” (Doc. 1 at 12.) The Court cannot

provide this relief because Lynch is no longer in prison. (Doc. 10.)

Constrained by Article III of the Constitution, federal “courts have

no business deciding legal disputes or expounding on law in the absence

of [] a case or controversy.” Already, LLC v. Nike, Inc., 568 U.S. 85, 90

(2013) (quotation marks omitted). A case or controversy must remain live

during every stage of litigation; otherwise, it becomes moot. See Steffel v.

Thompson, 415 U.S. 452, 459 n.10 (1974). “A case is moot when it no

longer presents a live controversy with respect to which the court can

give meaningful relief.” Ethredge v. Hail, 996 F.2d 1173, 1175 (11th Cir.

1993).

In essence, Lynch asks the Court to reduce the time he spends in

prison because of his participation in the RDAP program. As Lynch is no

longer in prison, it would be impossible for the Court to grant this

request. Accordingly, the instant motion is moot. Even if his § 2255

motion presented a live controversy, however, Lynch would still be

unable to obtain his requested relief for the reasons set forth below.

******

As the government argues, Lynch apparently asserts two claims in

his § 2255 motion—that his sentence was improperly enhanced, and that

his attorney at sentencing rendered ineffective assistance by failing to

object to the enhancement and by failing to adequately apprise him of the

consequences of the enhancement.4 (See doc. 6 at 6.) These claims are

4 For the instant § 2255 motion, the Court assumes, as does the government, that

Lynch refers to Victor Revill, his attorney at sentencing. However, for the reasons set

forth in this opinion, Lynch is not entitled to relief even if he intended to refer to

Jason Neff, his attorney when he signed the plea agreement.

without merit.

B. Ineffective Assistance of Counsel

Claims of ineffective assistance of counsel may be raised for the first

time in a § 2255 motion and are therefore not subject to a procedural bar

for failing to raise them on direct appeal. See Massaro v. United States,

538 U.S. 500, 504 (2003). An ineffective assistance of counsel claim has

two components: first, the petitioner “must show that the counsel’s

performance was deficient;” second, the petitioner “must show that the

deficient performance prejudiced the defense.” Strickland v. Washington,

466 U.S. 668, 687 (1984). To satisfy the first component, the petitioner

“must show that counsel’s representation fell below an objective standard

of reasonableness.” Id. at 688. The second component is satisfied only

when the defendant shows that “there is a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would

have been different.” Id. at 694.

In examining counsel’s performance, the Court should be “highly

deferential.” Id. at 689. The Court must make “every effort . . . to

eliminate the distorting effects of hindsight, to reconstruct the

circumstances of counsel’s challenged conduct, and to evaluate the

conduct from counsel’s perspective at the time.” Id. The Court must also

“indulge a strong presumption that counsel’s conduct falls within the

wide range of reasonable professional assistance.” Id.; see also Bell v.

Cone, 535 U.S. 685, 702 (2002) (holding that “tactical decision[s] about

which competent lawyers might disagree” do not qualify as objectively

unreasonable). A petitioner who seeks to overcome this presumption does

not carry his burden by offering bare accusations and complaints; rather,

he “must identify the acts or omissions of counsel that are alleged not to

have been the result of reasonable professional judgment.” Strickland,

466 U.S. at 690.

Where a petitioner fails to show that his counsel’s performance fell

below an objective standard of reasonableness, the court need not address

the issue of prejudice. See Holladay v. Haley, 209 F.3d 1243, 1248 (11th

Cir. 2000). Where the court does consider this prong, the petitioner must

show that counsel’s errors were prejudicial and “deprive[d] the defendant

of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687.

This burden is met by establishing by a reasonable probability that the

outcome of the proceeding would have been different but for counsel’s

errors. See Williams v. Threatt, 529 U.S. 362, 391–93 (2000); Strickland,

466 U.S. at 691.

To establish prejudice in the context of a guilty plea, a movant must

establish that, but for his counsel’s unprofessional errors, “he would not

have pleaded guilty and would have insisted on going to trial.” Hill v.

Lockhart, 474 U.S. 53, 59 (1985). In the guilty plea context, there is a

strong presumption that an attorney’s actions are reasonable. Arvelo v.

Sec’y, Fla. Dep’t of Corr., 788 F.3d 1345, 1348–49 (11th Cir. 2015). “We

recognize that in deciding whether to enter a plea, defense lawyers

carefully balance both ‘opportunities and risks’ without fully knowing the

strength of the [prosecution’s] case. Therefore, we must, as we do for all

Strickland claims, afford ‘substantial deference’ to a lawyer’s strategic

choices.” Id. (citing Premo v. Moore, 562 U.S. 115, 124 (2011)). “[S]trategic

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.” Strickland, 466 U.S. at 690–91. The

defendant must show “that no competent counsel would have taken the

action that his counsel did take.” Chandler v. United States, 218 F.3d

1305, 1315 (11th Cir. 2000) (en banc).

Lynch’s claim of ineffective assistance of counsel is without merit.

His attorney, Victor Revill, did not violate the “objective reasonableness”

standard by failing to object to the firearm enhancement, and even if

Revill had objected, the result would have been no different.

Prior to Revill’s representation, Lynch entered into a binding plea

agreement in which he stipulated to having a loaded (but not chambered)

pistol in close proximity to drugs in a hotel room and further agreed to a

binding sentence of sixty months—the sentence he actually received. (See

Cr. Doc. 18.) In this context, the Guidelines provide for a two-level

enhancement “[i]f a dangerous weapon (including a firearm) was

possessed.” See U.S.S.G. § 2D1.1(b)(1). The application notes to the

Guidelines further explain that:

“[t]he enhancement for weapon possession in subsection (b)(1)

reflects the increased danger of violence when drug traffickers

possess weapons. The enhancement should be applied if the

weapon was present, unless it is clearly improbable that the

weapon was connected with the offense.”

Id. § 2D1.1(b)(1) cmt. n.11.

With these considerations in mind, Lynch cannot satisfy

Strickland’s difficult standard. Based on the stipulated facts, the two-

level enhancement was clearly applicable, so Revill was not deficient for

failing to object at sentencing. In any event, such an objection would have

been unavailing, for the outcome would have remained the same. Lynch

does not dispute the stipulated facts of the plea agreement; rather, Lynch

claims that he “had no intentions for a firearm to ever be there.” (Doc. 1

at 4.) Irrespective of Lynch’s subjective intent, however, the

enhancement would still apply.

Moreover, to Lynch’s chagrin, the enhancement apparently entails

that he is not eligible for a year’s reduction in his sentence despite his

participation in the RDAP program. At sentencing, Revill inquired about

RDAP, and the Court agreed to request that he be allowed to participate

in RDAP—nothing was promised. (Doc. 6-2 at 7–10.) Inmates are not

guaranteed entry to the RDAP program. (See id.) This distinction further

undercuts any suggestion that Lynch received ineffective assistance of

counsel.5 Cf. Tahamtani v. Lankford, 846 F.2d 712, 714 (11th Cir. 1988)

5 Even if Lynch’s previous attorney (Jason Neff) promised him a year’s reduction for

participation in RDAP before he signed the plea agreement, there is still no

suggestion the outcome would be any different. As discussed above, the Court at

sentencing indicated that Lynch could not rely on being admitted to the program, yet

Lynch did not object. Cf. United States v. Bradley, 905 F.2d 359, 360 (11th Cir. 1990)

(“To the extent that Bradley claimed his guilty plea was based on his attorney’s

estimate of the sentence and offense level, the claim did not warrant withdrawal of

the guilty plea where Bradley acknowledged to the court that he understood the

(“In light of the fact that [the defendant] knew that there was a possibility

that he could receive the sentence that was imposed, his disappointment

with the result is not grounds to set aside the guilty plea.”). In addition,

as part of his binding plea, the government agreed to move to dismiss

Count II. Count II, a violation of 18 U.S.C. § 924(c), carried a mandatory

minimum of sixty months in addition to any other punishment for Count

I. See 18 U.S.C. § 924(c)(1)(A). Thus, as this Court made clear, Lynch

would have received a sentence of sixty months or more regardless. (Doc.

6-2 at 8–9.)

C. Substantive Claim

“When a defendant fails to pursue an available claim on direct

appeal, it will not be considered in a motion for § 2255 relief unless he

can establish cause for the default and actual prejudice resulting from

the alleged error.” Mills v. United States, 36 F.3d 1052, 1055 (11th Cir.

1994) (per curiam).

Lynch’s claim that his sentence was improperly enhanced is

procedurally barred because he did not pursue this claim on direct

possible maximum sentence for his crime to be greater than the sentence the court

ultimately imposed.”). Additionally, in his § 2255 motion, Lynch does not claim that

he would not have pleaded guilty had he better understood the consequences of the

enhancement.

appeal. He makes no attempt to show cause for his failure to file a direct

appeal, and he fails to show any actual prejudice resulting from the

alleged error. In other words, Lynch fails to demonstrate any factual

basis supporting the finding of a reasonable probability that, had he

raised the issue on direct appeal, the Eleventh Circuit would have ruled

in his favor. As previously discussed, the firearm enhancement was

applicable in light of the stipulated facts.

Additionally, Lynch waived all non-jurisdictional defects in the

proceedings when he entered into the plea agreement. See United States

v. Brown, 752 F.3d 1344, 1347 (11th Cir. 2014) (“A guilty plea, since it

admits all elements of a formal criminal charge, waives all non-

jurisdictional defects in the proceedings against a defendant.”) (quoting

United States v. Fairchild, 803 F.2d 1121, 1124 (11th Cir. 1986)).

IV. CONCLUSION

For the foregoing reasons, Lynch’s § 2255 motion to vacate, set

aside, or correct a sentence is due to be dismissed.

Rule 11 of the Rules Governing § 2255 Proceedings requires the

Court to issue or deny a certificate of appealability when it enters a final

order adverse to the applicant. See Rule 11, Rules Governing § 2255

Proceedings. This Court may issue a certificate of appealability “only if

the applicant has made a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). To make such a showing, a

“petitioner must demonstrate that reasonable jurists would find the

district court’s assessment of the constitutional claims debatable or

wrong,” Slack v. McDaniel, 529 U.S. 473, 484 (2000), or that “the issues

presented were adequate to deserve encouragement to proceed further.”

Miller-EL v. Cockrell, 5387 U.S. 322, 336 (2008) (quoting Slack, 529 U.S.

at 484). This Court finds that Lynch’s claims do not satisfy either

standard.

The Court will enter a separate order consistent with this opinion.

DONE and ORDERED on February 27, 2023.

Ct

L. Scott Coogfer

United States Dist¥ict Judge

211211

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