United States v. Santoriello

UNITED STATES OF AMERICA v. DONALD SANTORIELLO

Nos. 3:17cr57/RV/EMT, 3:19cv398/RV/EMT

United States District Court, N.D. Florida, Pensacola Division

July 8, 2021

REPORT AND RECOMMENDATION

ELIZABETH M. TIMOTHY, CHIEF UNITED STATES MAGISTRATE JUDGE

This matter is before the court on Defendant's pro se “Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody” (ECF No. 56). The Government filed a response (ECF No. 61), and Defendant filed a reply (ECF No. 62). The case was referred to the undersigned for the issuance of all preliminary orders and any recommendations to the district court regarding dispositive matters. See N.D. Fla Loc. R. 72.2(B); see also 28 U.S.C. § 636(b); Fed.R.Civ.P. 72(b). After a review of the record and the arguments presented, the undersigned recommends that the section 2255 motion be denied without a hearing because Defendant has not met his burden of showing he is entitled to relief on any of his claims. See Rules 8(a) and (b) Rules Governing Section 2255 Proceedings.

BACKGROUND AND PROCEDURAL HISTORY

On May 16, 2017, Defendant Donald Santoriello was charged in a one-count indictment with possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e) (ECF No. 1). He was initially represented by Assistant Federal Public Defender Thomas S Keith, until a potential conflict of interest developed and CJRA counsel Joseph L. Hammons was appointed to represent him (ECF Nos. 18-20). Mr. Hammons represented Defendant at the district court level and on appeal.

On August 10, 2017, Defendant entered a plea of guilty pursuant to a written plea agreement (ECF Nos. 26-28, 51). According to the Factual Basis for Guilty Plea (ECF No. 27), Defendant was placed on supervised release on July 26, 2016, after he completed the custodial portion of his sentence for a prior conviction for possession of a firearm by a convicted felon. That conviction was in the Southern District of Florida, and Defendant's supervision was transferred to this district (see Case No. 3:17cr31/RV (N.D. Fla.)). In March 2017, while Defendant was still on supervised release, his wife advised the United States Probation Office (USPO) that Defendant had a gun in their Pensacola residence.^[1] The USPO notified agents from the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). When ATF agents approached Defendant's residence to investigate, he fled. His wife then consented to the agents entering the marital home and showed them where Defendant kept the gun she had reported. A gun was located and recovered. An ATF agent contacted Defendant by telephone the following day, and Defendant said his DNA would be found on the gun. Additionally, an unrelated witness advised ATF agents that after Defendant's release from prison, Defendant showed the witness a gun that matched the description of the one recovered by ATF agents.

Defendant's Revised Final Presentence Investigation Report (PSR) reflected a base offense level of 20 (ECF No. 38, PSR ¶ 31). This level was increased by four levels because Defendant possessed the firearm in connection with another felony offense (Defendant's battery of his wife and possession of cocaine) and an additional two levels for obstructive conduct (Defendant failing to appear, absconding from supervision, and attempting to persuade his wife to lie to his former attorney about the ownership of the firearm and to testify falsely in court) (PSR ¶¶ 32, 35). His adjusted base offense level therefore would have been 26 (PSR ¶ 36) but for application of the Chapter Four, Armed Career Criminal Act (ACCA) enhancement, which increased his offense level to 34 (PSR ¶ 37). With a total offense level of 34 and a criminal history category of VI, the applicable sentencing guidelines range was 262 to 327 months.^[2] Prior to sentencing, Attorney Hammons objected to the ACCA enhancement, and the Government objected to a three-point reduction for acceptance of responsibility (PSR ¶¶ 129-49). The USPO agreed with the Government's position on acceptance and thus awarded no reduction (PSR ¶¶ 134, 38-39). Attorney Hammons, however, maintained Defendant was entitled to a two-level reduction for acceptance of responsibility (PSR ¶ 133).

At sentencing, the court confirmed Defendant's agreement with the factual accuracy of the PSR before addressing the objections (ECF No. 49 at 3). The three convictions used to support the ACCA enhancement were for first-degree robbery in New York and aggravated assault and second-degree murder in Florida (PSR ¶¶ 47, 50, 52, respectively). The court found that the first two offenses undoubtedly qualified as crimes of violence and were valid ACCA predicates (ECF No. 49 at 3- 5). Despite some confusion regarding the factual circumstances underlying the third offense, second-degree murder, the court found it qualified as an additional predicate offense and thus overruled the objection as to application of the ACCA enhancement (id. at 5-15). The court sustained the defense objection to the failure to award a two-point reduction for acceptance of responsibility (id. at 16-17). The court noted that whether to award the third point reduction for acceptance of responsibility was the Government's decision and the could not “do anything about it” (id. at 19).

The court sentenced Defendant to a term of 200-months imprisonment, which was slightly below the applicable guidelines range, after taking into consideration Defendant's age and other factors, including uncertainty about the applicability of the ACCA enhancement (ECF Nos. 39, 40; ECF No. 49 at 23). The court ordered the sentence to run consecutive to the “yet-to-be-imposed” sentence in the case involving Defendant's violation of supervised release (ECF No. 49 at 23).^[3]

Defendant appealed application of the ACCA enhancement, claiming none of the three underlying convictions counted by the district court qualified as a violent felony (ECF No. 54 at 2). The Eleventh Circuit disagreed. The court first noted that binding precedent foreclosed Defendant's arguments regarding the convictions for second degree murder and aggravated assault (id. at 2-3 (citing United States v. Jones, 906 F.3d 1325, 1329 (11th Cir. 2018) (second-degree murder) and Turner v. Warden Coleman, F.C.I., 709 F.3d 1328, 1338 (11th Cir. 2013) (aggravated assault)).^[4] With respect to Defendant's New York conviction for first-degree robbery, the court concluded, applying the modified categorical approach, that Defendant was convicted under the portion of the statute requiring proof of “force capable of causing physical pain or injury to another person” and proof that “serious physical injury” resulted from the robbery (ECF No. 54 at 5).^[5] Therefore, based on the facts as set forth in the PSR, this offense also constituted a valid ACCA predicate (id. at 4-5). The Eleventh Circuit thus affirmed Defendant's sentence. United States v. Santoriello, 756 Fed.Appx. 886 (11th Cir. 2018).

In the present motion, Defendant asserts five grounds for relief. He raises four separate claims of ineffective assistance of counsel and a fifth claim challenging his competency. The Government opposes the motion in its entirety. In his reply, Defendant does not refute or rebut the Government's position regarding the merits of his claims; instead, he makes an additional, new argument as to one of the grounds for relief. The court will address each of Defendant's claims, including those that may have been abandoned.

ANALYSIS

General Standard of Review

“Section 2255 does not provide a remedy for every alleged error in conviction and sentencing.” Spencer v. United States, 773 F.3d 1132, 1138 (11th Cir. 2014). A prisoner is entitled to relief under section 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(a); McKay v. United States, 657 F.3d 1190, 1194 n.8 (11th Cir. 2011).

There are limitations on the issues that may be raised in a section 2255 motion. For instance, the law is well established that a district court need not reconsider issues raised in a section 2255 motion that have been resolved on direct appeal. Stoufflet v. United States, 757 F.3d 1236, 1239 (11th Cir. 2014); Rozier v. United States, 701 F.3d 681, 684 (11th Cir. 2012); United States v. Nyhuis 211 F.3d 1340, 1343 (11th Cir. 2000); Mills v. United States, 36 F.3d 1052, 1056 (11th Cir. 1994). Once a matter has been decided adversely to a defendant on direct appeal, therefore, it cannot be re-litigated in a collateral attack under section 2255. Nyhuis, 211 F.3d at 1343 (quotations omitted). Broad discretion is afforded to a court's determination of whether a particular claim has been previously raised. Sanders v. United States 373 U.S. 1, 16 (1963) (“identical grounds may often be proved by different factual allegations . . . or supported by different legal arguments . . . or couched in different language . . . or vary in immaterial respects”).

Additionally “[u]nder the procedural default rule, a defendant generally must advance an available challenge to a criminal conviction or sentence on direct appeal or else the defendant is barred from presenting that claim in a § 2255 proceeding.” Lynn v. United States, 365 F.3d 1225, 1234 (11th Cir. 2004). An issue is “‘available' on direct appeal when its merits can be reviewed without further factual development.” Id. at 1232 n.14 (quoting Mills, 36 F.3d at 1055). Absent a showing that the ground of error was unavailable on direct appeal, a court may not consider the ground in a section 2255 motion unless the defendant establishes ...