Darryl Richardson v. United States ( 2014 )

Case: 12-16078 Date Filed: 02/25/2014 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-16078
Non-Argument Calendar
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D.C. Docket Nos. 1:09-cv-22349-PAS,
1:04-cr-20705-PAS-1
DARRYL RICHARDSON,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
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Appeal from the United States District Court
for the Southern District of Florida
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(February 25, 2014)
Before TJOFLAT, JORDAN, and FAY, Circuit Judges.
PER CURIAM:
Darryl Richardson, a federal prisoner proceeding pro se, appeals the district
judge’s denial of his request for habeas relief under 28 U.S.C. § 2255, in which he
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challenges his 2006 conviction and 30-year sentence for conspiracy to possess with
intent to distribute 5 or more kilograms of cocaine. We affirm.
I. BACKGROUND
Richardson was convicted of conspiring to distribute cocaine in violation of
21 U.S.C. §§ 841(b)(1)(A)(ii) and 846, for over ten years. See United States v.
Richardson, 532 F.3d 1279, 1283 (11th Cir. 2008). Richardson’s presentence
investigation report assigned him a total offense level of 40 and a criminal history
category of III. His offense level was based in part on a 1996 Georgia conviction
for theft, for which Richardson was sentenced to 12 months of probation.
At sentencing, Richardson sought a U.S.S.G. § 4A1.3(b)(1) downward
departure. His counsel asserted Richardson’s prior theft conviction was a
misdemeanor and the resulting criminal-history points substantially overstated the
seriousness of his criminal history. The government and probation officer disputed
the characterization of the prior offense as a misdemeanor. The sentencing judge
denied Richardson’s request and explained she could not treat counsel’s proffer as
evidence. Richardson testified numerous government witnesses had lied during his
trial. After considering a sentence between 20 and 30 years, the judge imposed a
30-year sentence. Richardson’s sentence was based in part on the judge’s
conclusion that Richardson’s continued protestations of innocence demonstrated
his refusal to see reality; he therefore posed a danger to society.
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In his § 2255 motion, Richardson raised several arguments, including his
trial counsel should have obtained copies of the court documents from his prior
Georgia case. Richardson asserted these documents would have shown he was not
convicted of theft or sentenced to probation, but rather he was convicted of
misdemeanor simple battery and had received a 12-month suspended sentence.
Had his counsel presented these documents to the sentencing judge, Richardson
contends the judge likely would have granted his downward-departure motion. We
have granted a certificate of appealability (“COA”) on the sole issue of whether
Richardson’s trial counsel rendered ineffective assistance during Richardson’s
sentencing by failing to investigate and obtain the necessary documents to argue
adequately for a downward departure. 1
II. DISCUSSION
We review de novo a claim of ineffective assistance of counsel, which is a
mixed question of law and fact. Payne v. United States, 566 F.3d 1276, 1277 (11th
Cir. 2009) (per curiam). To establish ineffective assistance of counsel, Richardson
must show (1) counsel’s performance was deficient, and (2) the deficient
performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687
(1984). Prejudice is a reasonable probability that, but for counsel’s errors, the
1
Richardson additionally argues his counsel was ineffective for failing to argue his prior
misdemeanor-battery conviction was uncounseled. This issue is not properly before this court,
because it is outside the scope of the COA. See Jordan v. Sec’y, Dep’t of Corr., 485 F.3d 1351,
1356 (11th Cir. 2007) (explaining the law of this circuit prohibits consideration of any issue that
is not specified in the COA).
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result of the proceeding would have been different. Id. at 694. The likelihood of a
different result must be substantial, not just conceivable. Harrington v. Richter,
131 S. Ct. 770, 792 (2011). The petitioner bears the burden of proof on both
prongs of an ineffective-assistance claim. Johnson v. Alabama, 256 F.3d 1156,
1176 (11th Cir. 2001).
At sentencing, if reliable information shows a defendant’s criminal-history
category substantially over-represents the seriousness of his criminal history or the
likelihood he will commit other crimes, a downward departure may be warranted.
U.S.S.G. § 4A1.3(b)(1). Section 4A1.3 directly implicates the likelihood that the
particular offender will commit future crimes. United States v. Collins, 915 F.2d
618, 621 (11th Cir. 1990). The section is concerned with the pattern or timing of
prior convictions, not with facts of the prior crimes, United States v. Smith, 289
F.3d 696, 713 (11th Cir. 2002), or doubts about their validity, United States v.
Phillips, 120 F.3d 227, 231-32 (11th Cir. 1997).
Richardson has not met his burden of showing a reasonable probability that,
but for his counsel’s alleged deficiencies, the sentencing judge would have granted
his downward-departure motion. See Harrington, 131 S. Ct. at 792; Strickland,
466 U.S. at 687, 694; Johnson, 256 F.3d at 1176. He has shown nothing in the
record in support of, and has submitted no authority for, his suggestion the judge
would have granted his request for a downward departure had his trial counsel
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properly established the prior conviction was for a misdemeanor that resulted in a
suspended sentence. Because the prior conviction occurred while Richardson was
engaged in the conduct underlying his federal conviction, it is likely the judge still
would have denied the motion, even if Richardson’s counsel had submitted the
additional documents. See Smith, 289 F.3d at 713; Collins, 915 F.2d at 621.
Moreover, the judge’s sentencing statements show she was unlikely to have
considered a downward departure after Richardson continued to protest his
innocence and claimed the government witnesses had lied. Based on Richardson’s
continued protestation of innocence, the judge determined Richardson refused to
see reality; consequently, he posed a danger to society. Accordingly, Richardson
has not shown the district judge erred when she concluded he did not establish his
counsel rendered ineffective assistance with respect to his downward-departure
motion.
AFFIRMED.
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