Golden v. United States

DONALD GOLDEN, Movant, v. UNITED STATES of AMERICA, Respondent.

No. 3:19-cv-01991-D (BT)

No. 3:17-cr-00157-D-1

United States District Court, N.D. Texas, Dallas Division

April 11, 2022

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

REBECCA RUTHERFORD, UNITED STATES MAGISTRATE JUDGE.

Movant Donald Golden, a federal prisoner, filed a pro se motion to vacate, set-aside, or correct sentence under 28 U.S.C. § 2255. The District Court referred the resulting civil action to the United States magistrate judge pursuant to 28 U.S.C. § 636(b) and a standing order of reference. For the following reasons, the Court should deny Golden's § 2255 motion.

I.

In 2016, Golden posted an advertisement on Craigslist.com and solicited sexually explicit photographs from an undercover Grand Prairie Police Department (GPPD) officer posing as a 14-year-old boy, L.W. A grand jury in this district indicted Golden on charges of attempted production of child pornography and attempted enticement of a minor. Golden eventually entered a plea agreement with the Government and pleaded guilty to attempted production of child pornography in violation of 18 U.S.C. §2251(a). On December 15, 2017, the District Court sentenced him to 300 months' imprisonment. Golden appealed to the Fifth Circuit Court of Appeals, but the Fifth Circuit determined his appeal did not present any nonfrivolous issues for review and dismissed it. See United States v. Golden, 735 Fed.Appx. 141 (5th Cir. 2018) (per curiam).

Golden then filed this § 2255 motion (CV ECF No. 2) ^[1] in which he argues:

(1) his First Amendment rights were violated when the undercover GPPD officer responded to his online advertisement based on its content;

(2) his constitutional rights were violated due to an “entrapment by inducement” during the online investigation; and

(3) his appointed trial attorney, an Assistant Federal Public Defender, provided ineffective assistance of counsel when:

a. she failed to provide available discovery to him prior to his decision regarding whether to accept or reject the plea agreement;

b. she failed to investigate the credibility of the Government's “key witness;”

c. she failed to investigate constitutional violations committed by the GPPD;

d. she refused to advise him regarding whether he should accept the plea agreement or go to trial; e. she failed to consider and investigate evidence of entrapment by the GPPD;

f. she failed to move for an extension of time in the legal proceedings when she was aware he had been diagnosed with cancer;

g. she failed to inform him of the collateral affects of pleading guilty; and

h. she failed to file a motion or otherwise notify the Court of his verbal request for a special hearing to determine if her representation was sufficient under the Criminal Justice Act (CJA), 18 U.S.C. § 3006A.

In its response, the Government argues that Golden's direct claims of constitutional error are procedurally barred, waived, and substantively meritless. The Government further argues that Golden failed to demonstrate ineffective assistance of counsel, and his § 2255 motion should be denied with prejudice. Golden filed a reply with exhibits, and the § 2255 motion is ripe for determination.

II.

A. Golden's direct claims of constitutional error are procedurally barred.

Golden argues that his constitutional rights were violated when an undercover GPPD officer posing as L.W., a teenage boy, responded to his online advertisement. Mot. 4-6 (ECF No. 2). Specifically, he contends that his Craigslist.com posting was protected speech, and law enforcement's engagement with him was retaliatory and unlawful. Id. 5-6. Golden concludes that due to this alleged violation of his First Amendment rights, “any and all evidence pertaining to this case, should not be allowed.” Id. 6.

Golden failed to raise these claims on direct appeal, and they are procedurally barred. See Golden, 735 Fed.Appx. at 141. When a movant fails to raise a claim on direct appeal, the claim is procedurally defaulted and can only be considered under § 2255 if the movant can show cause for his failure to raise the claim on direct appeal and actual prejudice, or that he is actually innocent. United States v. Placente, 81 F.3d 555, 558 (5th Cir. 1996); see also United States v. Shaid, 937 F.2d 228, 232 (5th Cir. 1991).

Golden alleges that his appellate attorney failed to raise the constitutional claims and he requested more time from the Fifth Circuit to file them, but the Fifth Circuit failed to respond. Mot. 1-2 (CV ECF No. 2); see also Reply 3-4 (CV ECF No. 8). Assuming, without deciding, that this argument is sufficient to excuse his failure to raise his arguments on direct appeal, Golden has not demonstrated actual prejudice resulting from the default. Specifically, Golden has not shown that if he had raised these issues before the Fifth Circuit, the Court would have considered them. See United States v. United States v. Frady, 456 U.S. 152, 164 (1982) (The cause and prejudice standard presents a significantly higher standard than the “plain error” standard applied on direct appeal); see also United States v. Pierce, 959 F.2d 1297, 1301 (5th Cir. 1992); United States v. Young, 77 Fed.Appx. 708, 709 (5th Cir. 2003) (per curiam). The only exception to overcoming a procedural default without showing cause and prejudice is when the failure to grant relief would result in a “manifest miscarriage of justice, ” where the “extraordinary case . . . in which a constitutional violation has probably resulted in the conviction of one who is actually innocent.” Shaid, 937 F.2d at 232 (internal quotation marks omitted). Golden has not demonstrated cause and prejudice or actual innocence. Therefore, his direct claims of constitutional error are defaulted and should be dismissed.

The Government also argues that Golden's direct claims of constitutional error are waived by the appeal waiver in his plea agreement and are also meritless. Because these claims are procedurally defaulted, the Court should pretermit consideration of these additional arguments. B. Golden has failed to demonstrate ineffective assistance of counsel.

Next, Golden raises eight claims of ineffective assistance of counsel. Because he fails to satisfy both prongs of the standard set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984), with respect to any of the eight claims, they fail on the merits.

To prevail on a claim of ineffective assistance of counsel, a movant must show that: (1) his counsel's performance was deficient; and (2) the deficient performance prejudiced his defense so gravely as to deprive him of a fair trial. Strickland, 466 U.S. at 687. In Strickland, the Court stated that “[j]udicial scrutiny of counsel's performance must be highly deferential” and “every effort [must] be made to eliminate the distorting effects of hindsight.”

466 U.S. at 689. Courts, therefore, must “indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Id.

Even if a movant proves his counsel's performance was deficient, a movant must still prove prejudice. To prove prejudice, a movant must show “a reasonable probability that the result of the proceedings would have been different but for counsel's unprofessional errors.” Crane v. Johnson, 178 F.3d 309, 312 (5th Cir. 1999) (citing Strickland, 466 U.S. at 694). “[T]he mere possibility of a different outcome is not sufficient to prevail on the prejudice prong.” Id. “Rather, the defendant must demonstrate that the prejudice rendered sentencing ‘fundamentally unfair or unreliable.'” Id. (quoting Lockhart v. Fretwell, 506 U.S. 364, 369 (1993)).

1. Counsel's alleged failure to provide discovery, advance constitutional claims, and pursue an entrapment defense

Golden argues that his trial attorney failed to provide him with available discovery prior to the time he had to decide whether to accept the government's plea offer. Mot. 2-4 (CV ECF No. 2). Thus, he contends, his decision to enter into the plea agreement was “uninformed, ” and his guilty plea resulted from “a violation of due process.” Id. More specifically, he claims that he did not receive the discovery, including “crucial, material evidence” involving the nature of the investigation, until November 19, 2018—almost a year after he was sentenced. Id. 3. He claims the evidence revealed that the undercover GPPD officer violated his First Amendment rights by initiating a “proactive solicitation investigation” based solely on a Cragislist.com posting. Id. 4. In related arguments, Golden contends that his trial attorney failed to investigate the alleged constitutional violations. Id. 6. He also argues that his attorney failed to advise him about entrapment, which rendered his guilty plea involuntary. Id. 7-8; see also Reply 7 (CV ECF No. 8).

Golden's claim that he did not timely receive “crucial, material evidence” about his case is refuted by the record which reveals details regarding the investigation, including the early date Golden learned that it was a GPPD officer posing as L.W. who responded to Golden's Craigslist.com posting. Indeed, that information was discussed at his detention hearing on April 3, 2017, months prior to his guilty plea. (CR ECF No. 45 at 2-5.) Likewise, those details were also set forth in Golden's presentence report (PSR), which was disclosed on September 29, 2017, prior to sentencing. (PSR ¶¶ 13-33.) After disclosure of the PSR, Golden did not seek to withdraw his guilty plea or otherwise act in a manner inconsistent with his admission of guilt at his plea hearing. (See generally, CR ECF No. 37.) Rather, at sentencing, Golden stated that he had a history of abuse and admitted, “I know I have a...