United States v. McKinnon

995 F. Supp. 1404, 1998 U.S. Dist. LEXIS 2063, 1998 WL 88431
CourtDistrict Court, M.D. Florida
DecidedFebruary 24, 1998
DocketNos. 91-299-CR-T-17B, 97-2815-CIV-T-17B
StatusPublished

This text of 995 F. Supp. 1404 (United States v. McKinnon) is published on Counsel Stack Legal Research, covering District Court, M.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. McKinnon, 995 F. Supp. 1404, 1998 U.S. Dist. LEXIS 2063, 1998 WL 88431 (M.D. Fla. 1998).

Opinion

ORDER

KOVACHEVICH, Chief Judge.

This cause is before the Court on Defendant McKinnon’s Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody Pursuant to 28 U.S.C. § 2255 and Motion for the Modification of an Imposed Term of Imprisonment Pursuant to 18 U.S.C. § 3582(c)(2) (Docket No. 414) and the Government’s Answer in Opposition thereto (Docket No. 416).

This Order will only address Defendant’s § 2255 motion. There is no need to address Defendant’s § 3582 motion until her § 2255 motion is finally resolved. Moreover, if Defendant’s sentence is ultimately vacated, then Defendant’s § 3582 motion becomes moot.

On May 7, 1993, Defendant was found guilty, by a jury, of one (1) count of conspiracy to distribute crack cocaine, in violation of 21 U.S.C. § 846. On July 21, 1993, Defendant was sentenced to life imprisonment. Defendant subsequently appealed her conviction which was affirmed on January 6, 1997. On September 18,1997, Defendant moved for sentence modification pursuant to 18 U.S.C. § 3582(c)(2) and sentencing guideline amendments 505, 509, and 519. On October 24, 1997, the Court held a hearing on the Government’s Rule 35 motion. At the hearing, Defendant’s present counsel, Darlene Calzón Barrar, made representations to the Court which indicated that a motion to vacate sentence under § 2255 was more appropriate than proceeding on the Government’s Rule [1406]*140635 motion. Based on these representations, the Court continued the Rule 35 hearing, deferred ruling on Defendant’s § 3582 motion, and allowed the Defendant thirty (30) days in which to file her § 2255.

In Defendant’s § 2255 motion, she contends that she did not receive her constitutionally guaranteed right to effective assistance of counsel. Defendant asserts that her trial counsel exhibited “an inordinate concern for the outcome in the case and fate of the other co-defendants, to the detriment of [Defendant].” In addition, Defendant argues that her trial counsel did not adequately inform her of the true nature of the Government’s plea offer and as a result, Defendant elected to go to trial rather than accept the Government’s offer. Significantly, Defendant’s trial counsel has written a letter to Defendant admitting that his representation was defective.

I. Ineffective Assistance of Counsel

The Defendant’s claim that she was deprived of her Sixth Amendment right to effective assistance of counsel is properly raised on collateral attack and is appropriately considered in this § 2255 motion. See United States v. Souder, 782 F.2d 1534, 1539-40 (11th Cir.1986). “The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).

Defendant’s claim that her representation was so defective as to require reversal of her conviction must satisfy the two part test announced in Strickland. In order to prevail, Defendant must not only show that her trial counsel’s performance was deficient, but also that she was prejudiced by said performance. Id.

A. Conflict of Interest

Defendant argues that her trial counsel, Frank T. Johnson, Esq., has admitted in a letter sent to her that he exhibited an inordinate concern for the outcome in the case and the fate of the other co-defendants, to the detriment of his client. The letter, dated January 28,1997, provides:

I was overly concerned about the effect of your testimony at the trial on the other defendants.
You could have given the jury a different view of the critical issues that seemed to tie you into the conspiracy. You may have been able to give the jury a reason to have acquitted you based on your testimony.
Further, there was no tactical advantage to be gained by your refusal to testify. You had no prior record. Additionally, testifying at the trial would only have helped your case. There was no way for you to have been harmed by testifying.

Letter from Trial Counsel, Johnson, to client McKinnon, cc: Appellate Counsel, Barror, dated January 28,1997.

Defendant asserts that she was wrongfully advised not to take the stand in her own defense, and her trial counsel now concedes that such a decision was of no tactical advantage to Defendant, trial counsel’s only client. Defendant argues that, “[i]t is difficult to determine the impact that this defendant’s testimony could have had on the jury, though it may have been considerable, but to take the stand was clearly in the defendant’s best interest in order to give the jury an alternative perspective on the facts before them.”

Moreover, Defendant urges that her trial counsel was appointed to protect solely Defendant’s interest. Defendant argues that, after her trial counsel advised Defendant not to accept the Government’s plea offer, he had the duty, as an officer of the court, to promote Defendant’s best interests and supply her with the most effective counsel possible at trial, regardless of the impact it may have had on any of the other individuals involved. Defendant contends that her trial counsel instructed her not to testify on her own behalf and the reasoning behind this advice was based on Mr. Johnson’s inappropriate [1407]*1407conflicted concern for the well-being of the co-defendant’s.

Conversely, the Government argues that the Court must give great deference to the choices made by defense counsel in the conduct of a trial that are arguably dictated by a reasonable trial strategy. See Devier v. Zant, 3 F.3d 1445, 1450 (11th Cir.1993). Moreover, the Government asserts that strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable. The Government maintains that “[s]ound tactical decisions within the range of reasonable professional competence are not vulnerable to attack.” Moreover, the Government argues that every effort must be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. See Weeks v. Jones, 26 F.3d 1030, 1036 (11th Cir.1994).

As a prehminary matter, it causes this Court a great deal of concern that the Government is attempting to equate “sound tactical decisions” with Defendant’s trial counsel not explaining the bottom line of the plea offer and sacrificing his client to benefit other represented parties.

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Bluebook (online)
995 F. Supp. 1404, 1998 U.S. Dist. LEXIS 2063, 1998 WL 88431, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-mckinnon-flmd-1998.