United States v. Williams, 1:15cr28/AW/GRJ

UNITED STATES OF AMERICA, v. CURTIS KENNEDY WILLIAMS Reg. No. 23751-017

Nos. 1:15cr28/AW/GRJ, 1:19cv59/AW/GRJ

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

May 5, 2021

REPORT AND RECOMMENDATION

GARY R. JONES United States Magistrate Judge

This matter is before the court upon Petitioner's “Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody.” ECF No. 178. The Government has filed a response, ECF No. 181, and Petitioner filed a reply. ECF No 183.^[1] The undersigned also granted, in part, Petitioner's motion to amend, permitting him to add a single additional claim. ECF Nos. 186, 187. Thereafter, the Government filed a “Response to Defendant's Grounds Five and Nine Claims (sic) in his Motion and Amended Motion. . .” conceding that Petitioner is entitled to resentencing. ECF No. 188. 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 Court concludes that the Petitioner's motion should be granted in part as set forth herein.

BACKGROUND and PROCEDURAL HISTORY

On November 17, 2015, a grand jury returned a three-count indictment charging Petitioner Curtis Kennedy Williams (“Williams”) and codefendant Shakayla Nicole Taylor with crimes arising from the kidnapping of an adult female identified as N.J. ECF No. 1. Count One charged the defendants with kidnapping in violation of 18 U.S.C. § 1201(a)(1) and 2; Count Two charged the defendants with possession of a firearm in furtherance of a crime of violence, identified as kidnapping in violation of 18 U.S.C § 924(c)(1)(A) and 2, and Count Three charged Williams with possession of a firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Williams, who was represented by Assistant Federal Public Defender Darren Johnson at the time, was ordered detained pending trial. ECF Nos. 19, 23.

After several continuances, on July 15, 2016, co-defendant Taylor entered a guilty plea before the undersigned. ECF Nos. 59-63 65. Williams' two-day trial commenced on July 26, 2016. ECF Nos. 140-141. The victim, N.J., arrived to testify in the cold courtroom wearing a jacket she had borrowed from the Alachua County Sheriff's Office victim advocate. The words “Victim Advocate” appeared on the back and “Alachua County Victim Advocate Sheriff's Office” on the front. After the defense brought the jacket to the court's attention, the judge asked the jury to leave the courtroom and directed N.J. to remove the jacket. Williams moved for a mistrial. The Court denied the motion, instead issuing a general curative instruction before N.J. testified. ECF No. 140 at 56-68. Co-defendant Taylor who had been in a relationship with Williams at the time of the events in question, was also among the witnesses who testified against him. The jury found Williams guilty on all counts. ECF No. 76.

As summarized in the PSR, ^[2] and in the Eleventh Circuit's opinion on appeal, Williams and N.J. dated for approximately four years, and in March 2015 they had a child together. After the birth of their child, N.J. broke up with Williams because he was physically abusive and had been seeing another woman, co-defendant Taylor. On October 19, 2015, N.J. dropped their son off at day care and went to class at City College in Gainesville, Florida. While in class, she received a call from the day care facility advising that Williams wanted to see their son. N.J. told the day care center and Williams that Williams was not allowed to see their child. Williams and Taylor then drove to the campus where N.J. was attending class. N.J. left class to talk to Williams, who put her in a chokehold and dragged her towards the vehicle. Taylor, who was waiting inside, opened the door to enable Williams to force N.J. into the car. To subdue N.J., Williams brandished a pistol, choked and bit N.J., and threatened her. He also fired the gun inside the vehicle. Taylor stopped at one point for gas, and Williams took N.J. into a wooded area where he raped her at gunpoint. After arriving in Louisiana, Williams forcibly took N.J. into his and Taylor's apartment. Law enforcement discovered N.J.'s location and began surveillance on the apartment complex. When Williams left the apartment to clean the interior of the car, he was arrested. N.J. then fled from the apartment towards the police, telling them that Taylor was still inside the apartment and there might be a gun inside. Officers entered the apartment and arrested Taylor. A search warrant revealed a gun in the apartment and a spent shell casing and bullet hole in the back seat of the vehicle.

There were multiple revisions to Williams' Presentence Investigation Report. See ECF Nos. 89, 95, 96, 107, 115. The Fourth Final Presentence Investigation Report (“PSR”) controls. In this PSR, Counts One and Three were grouped for guidelines calculation purposes. ECF No. 115, PSR ¶ 26. Williams had a base offense level of 32, and with a six-level increase due to the sexual assault of N.J., his total offense level became 38. (PSR ¶¶ 27-37.) His criminal history category was IV, ^[3] and the guideline imprisonment range was 324 to 405 months. (PSR ¶¶ 50, 51, 97.) A ten-year consecutive mandatory minimum applied to Count Two. Williams faced a statutory maximum term of life imprisonment on Count One, a minimum term of ten years and a maximum of life on Count Two (to be served consecutively to any other counts), and a maximum term of ten years on Count Three, in addition to supervised release on all counts, a special monetary assessment and a potential fine. ECF No. 115, PSR ¶¶ 95, 96.

Attorney Gilbert Schaffnit was substituted for trial counsel Darren Johnsen on October 11, 2016. ECF Nos. 92, 93. At the May 3, 2017 sentencing, Williams maintained his innocence and expressed his satisfaction with his new attorney, but he made no specific objections to the calculation of the guidelines. ECF No. 143 at 3, 9. The defense argued that a sentence at the low end of the guidelines was appropriate, noting that despite his criminal history, Williams had never served time in prison. The Court, nonetheless, sentenced Williams to 405 months of imprisonment on Count One, a consecutive term of 120 months on Count Two, and a concurrent 120-month term on Count Three. ECF Nos. 119, 120; ECF No. 143 at 31-36.

Williams unsuccessfully appealed. ECF No. 159. He claimed he was denied a fair trial because the jury may have been prejudiced against him when the jurors saw N.J. wearing the “victim advocate” jacket and that the Court should have granted his motion for a mistrial. The Eleventh Circuit found no abuse of discretion. Williams also argued that the Government should not have been allowed to introduce Rule 404(b) evidence of prior crimes and bad acts, specifically N.J.'s and Taylor's testimony about crimes committed by Williams during their relationships with him and during the kidnapping. The Eleventh Circuit found no plain error, and further found even if the district court had plainly erred, the abundant evidence of Williams' guilt precluded a finding that the outcome of the proceedings would have been different but for the admission of the challenged testimony.

As amended, Williams' § 2255 petition contains six grounds for relief. He claims counsel was ineffective in five respects:

1. Failure to object to Rule 404(b) evidence introduced through the testimony of N.J. and co-defendant Taylor;

2. Failure to object to questions posed to N.J. that were leading or related to another uncharged crime;

3. Failure to object to prosecutor's burden-shifting comment, in closing, that Williams had not addressed certain aspects of the case;

4. Failure to object to the application of the six-level enhancement for sexual exploitation; and

5. Failure to object to his conviction on Count 2 based on Johnson v. United States, 135 S.Ct. 2551 (2015) and Sessions v. Dimaya, 138 S.Ct. 1204 (2018).

ECF No. 178. His last claim, Ground Nine of his amended motion, is that his conviction on Count 2 should be overturned because kidnapping is not a crime of violence under § 924(c), relying on United States v. Davis, 139 S.Ct. 2319 (2019).

The Government concedes that Williams is entitled to relief based on the arguments raised in Grounds Five and Nine, and that he should be resentenced. ECF No. 188. It opposes Williams' request for relief on the remaining grounds.

ANALYSIS

General Standard of Review Applicable to all Claims

“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). “Relief under 28 U.S.C. § 2255 ‘is reserved for transgressions of constitutional rights and for that narrow compass of other injury that could not have been raised in direct appeal and would, if condoned result in a complete miscarriage of justice.'” Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004) (citations omitted). The “fundamental miscarriage of justice” exception recognized in Murray v. Carrier, 477 U.S. 478, 496 (1986) provides that it must be shown that the alleged constitutional violation “has probably resulted in the conviction of one who is actually innocent...