United States District Court, S.D. Indiana, Indianapolis Division
DONALD J. MARTIN, Petitioner,
UNITED STATES OF AMERICA, Respondent.
J. MCKINNEY, JUDGE
Donald J. Martin (“Petitioner” or
“Martin”) has moved for correction of his
sentence pursuant to 28 U.S.C. § 2255 based on
ineffective assistance of counsel and the Supreme Court's
decision in Johnson v. United States, 135 S.Ct. 2551
(2015). For the reasons stated herein, the Court
DENIES the Motion.
to a plea agreement pursuant to Federal Rule of Civil
Procedure 11(c)(1)(C), Petitioner pled guilty to one count of
possession with intent to distribute 28 grams or more of a
mixture containing cocaine base (crack cocaine), in violation
of 21 U.S.C. §§ 841(a)(1) and 851 (a)(1); and one
count of carrying a firearm during and in relation to a drug
trafficking crime, in violation of 18 U.S.C. §
924(c)(1)(A)(i). See United States of America v.
Martin, 1:08-cr-00124-LJM-TAB-01, Dkt. No. 156
(“Criminal Dkt. No. 156”). Prior to
Petitioner's plea hearing, the United States (the
“Government”) filed an information pursuant to 21
U.S.C. § 851(a)(1), alleging that Petitioner had a prior
felony drug conviction. Criminal Dkt. No. 24. The plea
agreement provided that, in the event that Petitioner was
sentenced to a total of 270 months imprisonment, Petitioner
“expressly waive[d] his right to appeal the conviction
and any sentence imposed in this case on any and all grounds,
. . . [and] expressly agree[d] not to contest, or seek to
modify, his conviction or sentence or the manner in which it
was determined in any type of proceeding, including, but not
limited to, an action brought under 18 U.S.C. § 3582 or
28 U.S.C. § 2255.” Criminal Dkt. No. 72.
moved for and was granted a mental competency examination as
well as a second opinion regarding same. Criminal Dkt. Nos.
94, 013, 114, 123, 124. Petitioner was deemed competent.
Criminal Dkt. No. 124.
was sentenced to an aggregate sentence of 270 months of
imprisonment. Criminal Dkt. No. 156.
Petitioner, Martin asserts that his counsel was ineffective
at sentencing because counsel allowed Martin to be sentenced
when he was incompetent. Specifically, the report contained
inconsistent information, which was never raised by counsel.
Dkt. No. 1 at 4. In his supplemental petition, Martin
challenges his sentence under the Johnson case,
which rendered the residual clause of the Armed Career
Criminal Act unconstitutional, and was made retroactive by
Welch v. United States, 136 S.Ct. 1257 (2016). Dkt.
INEFFECTIVE ASSISTANCE OF COUNSEL
motion with respect to ineffective assistance of counsel must
be denied. First, Martin waived his right to see
post-conviction relief when he made his plea. If the
“plea was voluntary, the waiver of appeal [or
post-conviction collateral relief] must be enforced.”
Nunez v. United States, 546 F.3d 450, 453
(7th Cir. 2008). The Court concluded at the
hearing that Petitioner's plea was entered into knowingly
and voluntarily. He has presented nothing new in his Petition
or other papers to undermine that conclusion.
although waiver can be overcome in certain circumstances,
Petitioner has failed to evidence that he is entitled to
relief under the high bar set by the ineffective assistance
of counsel standard. Under the Sixth Amendment to the U.S.
Constitution, an accused has a right to “reasonably
effective assistance” of counsel. Strickland v.
Washington, 466 U.S. 668, 687 (1984). The right to
effective assistance of counsel is denied when the
performance of counsel falls below an objective standard of
reasonable professional conduct and thereby prejudices the
defense. See Yaborough v. Gentry, 540 U.S. 1, 5
(2003) (citing Strickland, 466 U.S. at 668-94). For
Petitioner to establish that his “counsel's
assistance was so defective as to require reversal” of
a conviction or sentence, he must make two showings: (1)
deficient performance that (2) prejudiced his defense.
Strickland, 466 U.S. at 687.
respect to the first element of the Strickland test,
“The proper measure of attorney performance remains
simply reasonableness under prevailing professional
norms.” Wiggins v. Smith, 539 U.S. 510, 521
(2003) (quoting Strickland, 466 U.S. at 688).
“Judicial scrutiny of counsel's performance must be
highly deferential.” Strickland, 466 U.S. at
689. The performance of counsel is evaluated from
counsel's perspective at that time, making every effort
to “eliminate the distorting effects of
hindsight.” Wiggins, 539 U.S. at 523 (quoting
Strickland, 466 U.S. at 688). See also
Kokoraleis v. Gilmore, 131 F.3d 692, 696 (7th
Cir. 1997). Because there is a strong presumption that
counsel's representation is effective, “[t]he
question is whether an attorney's representation amounted
to incompetence under prevailing professional norms, not
whether it deviated from best practices or most common
custom.” Harrington v. Richter, 562 U.S. 86,
Petitioner merely argues that his counsel should have argued
that the inconsistencies in the psychologist's
evaluations rendered him incompetent to enter into a plea.
This is not enough to show that counsel's performance
fell below the prevailing professional norm. In fact, counsel
raised Petitioner's long-standing psychological problems
at the hearing, and, having assessed the reports and the
Court's ruling thereon, concluded that Martin had
voluntarily and knowingly entered into the plea. Sentencing
Tr. at 4. And, the Court also acknowledged Petitioner's
issues in its discussion of the § 3553(a) factors,
noting that considerable time and effort had been put in to
determine Petitioner's mental competency, and that
multiple doctors had concluded that Martin was competent.
Id. at 8-9. Moreover, the Court stated that, in its
experience, Petitioner's struggle to accept
responsibility was not unusual. Id. Petitioner's
mental health issues were competently raised by counsel and
addressed by the Court at sentencing.
Petitioner presents no argument or evidence that he was
prejudiced in any way by the manner in which counsel raised
his mental health issues. As previously discussed, counsel
mentioned the competency evaluations and his own conclusion
that Petitioner entered into the plea agreement knowingly and
voluntarily. The Court also pointed out the multiple
competency evaluations and the findings therein, which all
pointed to a conclusion that Martin was competent to enter
into a plea agreement. In addition, Petitioner presents no
evidence that the sentence that he received would ...