Drabic v. United States

1

ANDREW JOHN DRABIC, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

Nos. 5:24-cv-00035, 5:22-cr-00122

United States District Court, N.D. Ohio, Eastern Division

July 15, 2024

MEMORANDUM OF OPINION AND ORDER (RESOLVES DOCS. 54 59, 69, 70)

JOHN R. ADAMS UNITED STATES DISTRICT JUDGE

This matter is before the Court upon Andrew John Drabic's (“Drabic”) Motion to Vacate, Set Aside, or Correct a Sentence pursuant to 28 U.S.C § 2255 (the “Motion”). Doc. 54. The United States of America filed the Government's Response in Opposition to Petitioner's Motion to Vacate Set Aside or Correct Sentence. Doc. 69. The matter is now fully briefed and ready for disposition. For the reasons set forth herein, the Motion is DENIED.

I. PROCEDURAL BACKGROUND

A federal grand jury returned an indictment charging Drabic with seven counts of cyberstalking in violation of 18 U.S.C. §§ 2261A(2)(B) and 2261(b)(5) (Counts One, Two, Four, Six, and Eight-Ten), three counts of interstate communication with intent to extort in violation of 18 U.S.C. § 875(d) (Counts Three, Five, and Seven), and attempted sexual exploitation of a child in violation of 18 U.S.C. § 2251(a) and (e) (Count 11). Doc. 10. Pursuant to a plea agreement, Drabic pled guilty as to all counts. Doc. 36.

On January 17, 2023, the Court sentenced Drabic to 151 months' imprisonment. Doc. 50. Drabic did not file an appeal. The instant Motion was filed almost a year later, on January 5, 2024, wherein Drabic argues that he was denied effective assistance of counsel and alleges prosecutorial misconduct, a denial of due process, and cruel and unusual punishment. Doc. 54.

II. LEGAL STANDARD AND ANALYSIS

A prisoner in custody that moves to vacate, set aside, or correct a sentence pursuant to 28 U.S.C. § 2255 must show that (i) the sentence was imposed in violation of the Constitution or laws of the United States, (ii) the court was without jurisdiction to impose such sentence, (iii) the sentence was in excess of the maximum authorized by law, or (iv) the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255(a).

a. Ineffective Assistance of Counsel

First, Drabic claims trial counsel was ineffective when they allegedly: (i) lied when they told Drabic he was eligible for time credits [and his sentence could be reduced accordingly], (ii) did not visit Drabic every day to allow him the chance to review all evidence, (iii) lied to Drabic about his ability to obtain a copy of the Presentence Investigation Report (“PSI”), (iv) did not file a motion to sever Count 11, (v) did not speak on Drabic's behalf at sentencing, (vi) did not request a continuance to use a digital expert, (vii) did not challenge the warrant that supported the seizure of evidence against Drabic, (viii) advised Drabic that the lack of reasons provided for supervised release conditions was not appealable, and (ix) did not challenge the admissibility of certain telephone evidence obtained against Drabic. Doc. 54.

A motion made pursuant to 28 U.S.C. § 2255 is the appropriate vehicle for raising a claim of ineffective assistance of counsel. United States v. Daniel, 956 F.2d 540, 543 (6th Cir. 1992) (“Ineffective assistance of counsel claims are best brought by a defendant in a post-conviction proceeding under 28 U.S.C. § 2255 so that the parties can develop an adequate record on the issue.”) The test of counsel's effectiveness was set forth by the Supreme Court in Strickland v. Washington.

The measure used is whether the representation fell below an objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). To succeed on their claim of ineffective assistance of counsel, the petitioner must show both a deficient performance and resulting prejudice. Id. at 688. Counsel's performance is evaluated considering all circumstances, based on their perspective at the time. Snider v. United States, 908 F.3d 183, 192 (6th Cir. 2018) (citing Strickland at 689). Further, counsel's strategic choices are granted a high level of deference under the presumption that the challenged action might be considered sound trial strategy. Tremble v. Burt, 497 Fed.Appx. 536, 574 (6th Cir. 2012) (citation and internal quotation marks omitted). The second part of the Strickland test - whether there was resulting prejudice - is more difficult. To succeed on this prong, the petitioner must prove that there is “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Bullard v. United States, 937 F.3d 654, 661 (6th Cir. 2019) (citation omitted). A petitioner that claims he was denied effective assistance of counsel with regard to whether to plead guilty must prove (1) counsel rendered constitutionally deficient performance and (2) there is a reasonable probability that, but for counsel's deficient performance, the petitioner would not have pled guilty and would have insisted upon going to trial. Magana v. Hofbauer, 263 F.3d 542, 547-48 (6th Cir. 2001) (citations omitted).

Drabic's claim of ineffective assistance of counsel fails to satisfy either prong of the Strickland test. First, several of Drabic's allegations are factually incorrect and therefore do not support his claim. During sentencing, Drabic confirmed he reviewed and discussed the PSI with counsel (Doc. 65 at 2, lines 17-23) and the record makes it clear that Drabic's counsel both filed a Sentencing Memorandum (Doc. 42) and spoke on his behalf at sentencing (see Doc. 65 generally). Drabic fails to provide any additional facts to support a finding that his counsel was constitutionally deficient. The remainder of his allegations supporting Ground One are conclusory statements about counsel's trial strategy, where Drabic fails to establish or suggest that the outcome of his proceedings [his guilty plea] would have been different but for his counsel's performance. See Magana at 547-48. Based on the record and arguments in the Motion, the Court does not find a reasonable probability that Drabic would not have pled guilty but for his counsel's allegedly deficient performance. See Bullard at 661.

b. Prosecutorial Misconduct

Drabic next alleges the Assistant United States Attorney (the “Government”) engaged in prosecutorial misconduct when they lied to him, telling him he was “possibly eligible” for time credit, and agreed to doing so on the record. Doc. 54 at 5. This claim appears to be another vague attempt to invalidate his guilty plea.

A challenge on collateral review as to the voluntariness and intelligence of a guilty plea may only proceed if first challenged on direct review. Bousley v. United States, 523 U.S. 614, 621 (1998). However, a district court may consider a procedurally defaulted claim if the petitioner (i) has good cause for failing to raise the issues on direct review and would suffer prejudice if unable to proceed, or (ii) claims actual innocence. Goward v. United States, 569 Fed.Appx. 408, 411 (6th Cir. 2014). "For a habeas corpus motion to be cognizable under a claim of prosecutorial misconduct, the misconduct must be 'of sufficient significance to result in the denial of the defendant's right to a fair trial.'" Marcusse v. United States, 785 F.Supp.2d 654, 663 (W.D. Mich. 2011) (quoting Greer v. Miller, 483 U.S. 756, 765 (1987) (citations omitted)).

Drabic claims that the Government lied to him when they said he was “possibly eligible” for time credit. Doc. 54 at 5. He did not raise this issue on direct appeal. Therefore, the claim is procedurally defaulted. See Bousley at 621. Further, Drabic has not provided, and the Court cannot find, cause for this failure. See Bousley at 621-22 (discussing that cause cannot be established via an argument that “further factual development” past the guilty plea stage was required where the claim could have been completely addressed based on the record created during the plea colloquy). Drabic also does not argue that he is actually innocent, so he has not established any exception to the general rule that his claim is procedurally defaulted. See Goward at 411. Therefore, the prosecutorial misconduct claim may not be considered.

c. Denial of Due Process

Third, Drabic argues he was denied the right to due process when (i) the Court approved funding for an expert witness, but did not afford time to use them, (ii) he was not provided an opportunity to review the evidence, and (iii) the Court forced him to accept the plea deal by not allowing an additional continuance. Doc. 54 at 8.

Claims of due process violations are cognizable under § 2255. A petitioner must show a “fundamental defect” or an “error so egregious that it amounts to a violation of due process[.]” United States v. Ferguson, 918 F.2d 627, 630 (6th Cir. 1990) (citation omitted). The district court has broad discretion on matters of continuances and a violation of the right to due process exists only when, considering the circumstances of the case, the denial of a continuance is unreasonable and arbitrary. United States v. Bixler, No. 21-5194, 2022 U.S. App. LEXIS 2646, at *16-17 (6th Cir. 2022) (citations omitted). To succeed on their claim, the petitioner also must have suffered prejudice as a result of the denial. Id. (citing United States v. Martin, 740 F.2d 1352, 1361 (6th Cir. 1984)). When the continuance was requested for the purposes of obtaining witness testimony, the factors to be considered in relation to the question of whether due process rights were violated include:

the diligence of the defense in interviewing witnesses and procuring their presence, the probability of procuring their testimony within a reasonable time, the specificity with which the defense is able to describe their expected knowledge or testimony, the degree to which

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