Paquette v. United States

1

DAVID SHANE PAQUETTE, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

No. 8:22-cv-2858-WFJ-TGW

United States District Court, M.D. Florida, Tampa Division

September 18, 2023

ORDER

WILLIAM F. JUNG UNITED STATES DISTRICT JUDGE

Before the Court is David Shane Paquette's (“Petitioner”) Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (Civ. Dkt 1).^[1] The United States of America (“Respondent”) has responded in opposition (Civ. Dkt. 15) and Petitioner has replied (Dkt. 16). Upon careful review, the Court finds an evidentiary hearing unnecessary and denies Petitioner's Motion.

BACKGROUND

On November 14, 2005, Petitioner was convicted of fourth-degree sexual misconduct in Michigan. Cr. Dkt. 25 at 10; Cr. Dkt S-41 at 4. This required Petitioner to register as a sex offender wherever he lived for 25 years. Cr. Dkt. S-41 at 5. Notwithstanding, in 2017, and while still on parole in Michigan, Petitioner absconded to Florida and failed to register as a sex offender. Id.

Two years later, law enforcement officers in Hillsborough County, Florida, conducted a traffic stop on a vehicle in which Petitioner was a passenger. Id. Petitioner provided a false name and eventually fled on foot. Id. After a short pursuit involving physical resistance, the officers apprehended Petitioner and took him into custody. Id. Petitioner provided a second false name to law enforcement at this point. Id. His true identity was later discovered only through fingerprint verification. Id.

On June 20, 2019, a federal grand jury indicted Petitioner for failing to register as a sex offender and update his registration in violation of 18 U.S.C. § 2250(a). Cr. Dkt. 1 at 1-2. Petitioner pled guilty approximately six months later. Cr. Dkt. 25. Unfortunately, however, Petitioner's plea agreement contained a mistake. The maximum penalties provision provided that “Count One carries a maximum sentence of ten year's imprisonment, a fine of $250,000, a term of supervised release of up to three years, and a special assessment of $100 per felony count for individuals.” Id. In reality, if a term of supervised relief was to be imposed, the Court was required to “impose a term of supervised release of five years to life” under 18 U.S.C. § 3583(k). Cr. Dkt. S-41 at 26.

On January 27, 2021, the presiding magistrate judge held a change-of-plea hearing. Cr. Dkt. 55. Petitioner informed the magistrate that he had reviewed each section of the plea agreement with counsel, understood its terms, and did not have any questions. Id. at 7-8. Petitioner also stated his satisfaction with counsel's representation. Id. at 13-14. In explaining the maximum penalties, though, the magistrate then read from the erroneous plea agreement and stated that Petitioner's offense could result in “a term of supervised release of up to three years.” Id. at 1415. No one caught the mistake before Petitioner went on to assure the magistrate that he understood his sentence appeal waiver, that he had not been made any promises outside of the plea agreement, and that he was making his plea knowingly and voluntarily. Id. at 15-27. The magistrate consequently accepted the plea. Id. at 37.

Prior to sentencing, the United States Probation Office issued a Presentence Investigation Report (“PSR”). Cr. Dkt. S-41. The PSR correctly stated that “[t]he Court shall impose a term of supervised release of five years to life.” Id. at 26 (emphasis added); see also Cr. Dkt. S-38 at 24 (the Initial Presentencing Report providing the same). Petitioner made multiple objections, but none addressed the inconsistency between the supervised release terms contained within the plea agreement and those contained within the PSR. See Cr. Dkt. S-41 at 29-46.

On April 16, 2021, the Court held Petitioner's sentencing hearing. Petitioner represented that he had gone over the PSR with counsel and that he was prepared to proceed. Dkt. 60 at 3-4. After addressing Petitioner's objections (none of which related to the length of supervise release), the Court stated that “[t]here is a five-year term-and I don't think I have any discretion in the supervised release-five-year term of supervised release.” Id. at 11 (cleaned up). Petitioner did not object or otherwise address this finding. Following allocution, the Court sentenced Petitioner to 33 months' imprisonment followed by a five-year term of supervised release, id. at 31, and deferred to probation on the matter of whether a special condition of nocontact with minors was appropriate, id. at 33. At this point, the Court asked if Petitioner had “any objections beyond those previously stated.” Id. at 35. Petitioner failed to raise any objection as to the length of his supervised release.

Petitioner appealed days later. Dkt. 47. He challenged his sentence of supervised release on three grounds: (1) the Court mistakenly believed that it had to impose a term of supervised release; (2) the special condition of no-contact with minors ultimately imposed by probation involved a greater deprivation of liberty than reasonably required; and (3) delegating the special condition issue to probation was an erroneous delegation of a judicial function. See Appellant Brief for David Paquette, at 10-25, U.S. v. Paquette, No. 21-11365, 2022 WL 3453115. The Eleventh Circuit found that the first two grounds were barred by the sentence appeal waiver in Petitioner's plea agreement, but it agreed that the Court erred in delegating the special condition issue to probation and vacated that ruling. U.S. v. Paquette, No. 21-11365, 2022 WL 3453115, at *1-2 (11th Cir. Aug. 18, 2022), cert. denied, 143 S.Ct. 610 (2023). On remand, the Court imposed the same sentence without any special condition related to contact with minors. Cr. Dkt. 71.

Petitioner timely filed the instant Motion on December 11, 2022. Civ. Dkt. 1. Petitioner asserts four grounds for relief: (1) ineffective assistance of counsel where Petitioner was allegedly (a) promised time served and three years of supervised release, and (b) not properly advised about the sentence appeal waiver; (2) plain error where the presiding magistrate failed to create an adequate factual record at the change-of-plea hearing to determine if the plea was intelligent, knowing, and voluntary; (3) plain error regarding the Court's alleged failure to credit Petitioner for time spent in presentence detention; and (4) plain error where the Court allegedly imposed terms and conditions in excess of previously agreed upon terms and conditions. Id. at 5-13.

STANDARD OF REVIEW

On collateral review, the petitioner “has the burden of proof and persuasion on all the elements of his claim.” In re Moore, 830 F.3d 1268, 1272 (11th Cir. 2016). This is “a significantly higher hurdle than would exist on direct appeal,” United States v. Frady, 456 U.S. 152, 164-66 (1982); for, “[w]hen the process of direct review . . . comes to an end, a presumption of finality and legality attaches to the conviction and sentence” at issue, Moore, 830 F.3d at 1272 (citations omitted). “[I]f the Court cannot tell one way or the other” whether the petitioner's claim is valid, the petitioner has “failed to carry his burden of showing all that is necessary to warrant [section] 2255 relief.” Id. at 1273.

DISCUSSION

Petitioner brings four grounds for relief that revolve around the inconsistent supervised release terms discussed above. The Court will address each below.

I. Ground One

Petitioner first argues that counsel was ineffective because his “plea was not voluntary, knowing, and, intelligent, and therefore must be vacated under the [Padilla v. Kentucky, 559 U.S. 356 (2010)] standard where counsel failed to adequately determine whether he understood the sentencing exposure set forth by the conditions of the plea.” Civ. Dkt. 16 at 3. Petitioner maintains that he was (a) promised time served and three years of supervised release, and (b) not properly advised about the sentence appeal waiver contained within his plea agreement. Civ. Dkt. 1 at 5. Petitioner further claims that “he would have declined any conditional acceptance of the plea and proceeded directly to trial” had counsel properly advised him. Civ. Dkt. 1 at 5.

Counsel is ineffective under the Sixth Amendment if “(1) counsel's performance was deficient; and (2) the deficient performance prejudiced the defense such that petitioner was deprived of a fair trial.” Dill v. Allen, 488 F.3d 1344, 1354 (11th Cir. 2007) (citing Strickland, 466 U.S. at 687 (1984)). A petitioner claiming ineffective assistance of counsel carries the burden of establishing both prongs. Strickland, 466 U.S. at 687.

To establish deficient assistance under Strickland, a petitioner must demonstrate that counsel's performance “fell below an objective standard of reasonableness.” Id. at 688. The test is not “what the best lawyers” or “what most good lawyers would have done.” White v. Singletary, 972 F.2d 1218, 1220 (11th Cir. 1992). Rather, the question is “whether some reasonable lawyer at the trial could have acted, in the circumstances, as defense counsel acted at trial.” Id.

To establish resulting prejudice under Strickland, a petitioner “must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” 466 U.S. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. If the petitioner fails to establish either of the Strickland prongs, his claim fails. See Maharaj v. Sec'y, Dep't of Corr., 432 F.3d 1292, 1319 (11th Cir. 2005).

Here Petitioner was not ultimately prejudiced by counsel's mistake at the change-of-plea hearing stage. As an initial matter, even at this time, it was clear that Pe...