[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
SEPT. 28, 2001
_______________
THOMAS K. KAHN
CLERK
No. 00-16657
_______________
D. C. Docket No. 99-00135-CV-6
FRANKLIN E. HAGINS,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
______________________________
Appeal from the United States District Court
for the Southern District of Georgia
______________________________
(September 28, 2001)
Before BIRCH, WILSON and FARRIS*, Circuit Judges.
*
Honorable Jerome Farris, U.S. Circuit Judge for the Ninth Circuit, sitting by designation.
BIRCH, Circuit Judge:
Franklin E. Hagins appeals the district court’s denial of his petition for
habeas corpus relief pursuant to 28 U.S.C. § 2255. The district court granted a
certificate of appealability (“COA”) on the issues of whether Hagins received
ineffective assistance of counsel at trial and at sentencing. We AFFIRM.
I. BACKGROUND
Hagins, Sammie Johnson and others were indicted for conspiracy to possess
with intent to distribute and to distribute cocaine hydrochloride and cocaine base in
violation of 21 U.S.C. §§ 841(a)(1) and 846. The alleged conspiracy dated from
1993 to 18 November 1996. Prior to trial, the government filed notice that it
would seek a sentencing enhancement for Hagins based on a prior state court
conviction. Johnson pled guilty pursuant to a plea agreement, but Hagins
proceeded to trial and was found guilty. He was sentenced to a mandatory
minimum of 240 months. On direct appeal, we affirmed.
Troy Lance Greene was initially appointed to represent Hagins. Hagins
retained private counsel in place of Greene, but when that attorney later withdrew
from the case, Greene was re-appointed to represent Hagins five weeks prior to the
trial date. Greene obtained the trial materials from Hagins’ prior counsel and paid
a law student to organize and index it and assist him in summarizing important
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documents. Greene double-checked with the prosecutor that he had all
discoverable information. He also met with Hagins twice to discuss trial strategy.
Greene spent a week preparing for the trial, which lasted one day. Hagins could
not provide Greene with any helpful information to assist in his defense.
At trial, Jimmy Everette, a confidential informant, testified that Johnson,
Hagins’ co-conspirator, spoke on the phone with a man named Frank on 28 March
1996 about obtaining drugs. Everette also testified that Johnson told him that he
could obtain from Frank a quarter of a kilogram of crack “or basically, anything
[Everette] wanted.” Ex. Vo. 4-174-86-87. Everette’s cell phone bill showed
Hagins’ number as the number called. Id. at 102-03, 107. Johnson testified that he
purchased cocaine for Everette from Hagins, id. at 129, and that he drove with
Hagins to Augusta, Georgia to obtain crack three or four times. Id. at 133. During
the Augusta trips, Hagins obtained “three or four ounces.” Id. Federal Bureau of
Investigation Agent Timothy Gannon testified that, during Hagins’ post-arrest
interview, he admitted that “he had progressed into the quarter kilogram [250
grams] transaction weight . . . during generally the last year.” Id. at 177.
Hagins filed a § 2255 petition with the district court alleging that he received
ineffective assistance of counsel at trial because, according to Hagins, (1) Greene
failed to interview key witnesses and pursued no independent investigation of the
3
case, and (2) failed to call Hagins as a witness in the Jackson-Denno hearing held
the day of trial. Hagins also alleged that he received ineffective assistance of
counsel at sentencing because Greene (1) never reviewed the pre-sentence
investigation report (“PSI”) for inaccuracies and never reviewed it with Hagins; (2)
failed to object to the enhancement of Hagins’ sentence based on a prior conviction
where that prior conviction was not yet final; and (3) failed to object to the same
enhancement on the grounds that the conviction was relevant conduct included in
the federal conspiracy charge and was not a proper predicate conviction. The
district court denied the petition but granted a Certificate of Appealability (“COA”)
on those issues. Hagins now appeals.
II. DISCUSSION
Whether counsel rendered ineffective assistance is a mixed question of law
and fact that we review de novo. Holladay v. Haley, 209 F.3d 1243, 1247 (11th
Cir. 2000). In order to successfully demonstrate that he received ineffective
assistance, a petitioner must show that counsel’s performance was deficient and
that he was prejudiced by that deficiency. Id. at 1247-48. See also Strickland v.
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). A petitioner must
overcome a strong presumption of competence and the court must give significant
deference to the attorney’s decisions. Holladay, 209 F.3d at 1248.
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A. Greene’s Performance at Trial
1. Greene’s Preparation
Hagins asserts that Greene’s performance was deficient because he
conducted no independent investigation of Hagins’ case and made no effort to
interview witnesses, including Johnson. Hagins argues that he was prejudiced by
Greene’s failure to interview Johnson because Johnson gave inconsistent
statements at trial and to the probation officer preparing Hagins’ PSI. Hagins’
claim is without merit. Greene extensively prepared for trial and paid a law student
to help him organize, index and review the file compiled by Hagins’ previous
counsel. He met with Hagins to discuss trial strategy and attempted to discover
any information Hagins might have that would assist in his defense. Greene
contacted the prosecutor several times to make sure he had received all
discoverable information.
At trial, Greene cross-examined effectively and pointed out every weakness
in the government’s case. Hagins cannot demonstrate that Greene’s trial
performance was deficient. The only specific criticism he offers, the failure to
interview Johnson, is based on a post-hoc complaint that Johnson gave different
statements about the number of times he got drugs for Everette from Hagins. At
trial, Johnson testified that the drugs came from Hagins once, but he told the
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probation officer that both sales to Everette came from Hagins. Hagins cannot
show that Greene would have discovered Johnson’s “confusion” if he interviewed
Johnson prior to trial. Hagins also cannot show that he was prejudiced by Greene’s
failure to interview Johnson. Johnson was not at all confused about his general
pattern of obtaining drugs from Hagins, and Hagins’ own confession and other
evidence presented at trial adequately demonstrated his guilt.
2. The Jackson-Denno Hearing
The morning of trial, the district court held a Jackson-Denno hearing to
determine whether Hagins’ confession should be admitted or excluded from
evidence. The FBI agents that interviewed Hagins testified regarding the
circumstances of his confession and whether Hagins had asked to speak to an
attorney before confessing. Greene did not call Hagins to testify. The motion to
exclude the confession was denied.
At the habeas hearing, Greene testified that he was aware that he could have
called Hagins for the limited purpose of testifying as to the voluntariness of his
confession. 1SR1-13, at 53. Greene also testified that he made “purely a tactical
decision” not to call Hagins because he “thought [the prosecutor] would discredit
him pretty severely on cross.” Id. at 84. Greene noted that, in making the decision
not to call Hagins, he took into account the fact that his cross-examination of the
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FBI agents had gone well. Id. We evaluate trial counsel’s tactical decisions with
great deference. Strickland, 466 U.S. at 689, 120 S. Ct. at 2065. Accordingly, we
find that Greene’s performance at the Jackson-Denno hearing was not deficient.
B. Greene’s Performance at Sentencing
Hagins also argues that Greene rendered ineffective assistance at his
sentencing hearing, and accordingly, he received a longer sentence than he should
have. Specifically, Hagins argues that Greene never compared the PSI to the trial
transcript to check for inaccuracies and never reviewed it with Hagins prior to the
day of sentencing. He also argues that Greene’s failure to object to the
enhancement of his sentence based on a prior conviction was prejudicial because his
prior conviction was not yet final. Finally, Hagins argues that Greene should have
objected to the same enhancement on the grounds that the conviction was included
in his relevant conduct for the federal conspiracy charge and was not a proper
predicate conviction. We address each of these issues in turn.
1. The PSI
The record reflects that Greene never reviewed the PSI with Hagins before
the day of the sentencing hearing.1 Hagins now argues that if Greene had compared
1
At Hagin’s sentencing hearing, the district judge discovered that Hagins had not
reviewed the PSI with counsel. At that time, the court recessed to allow Hagins to review the
PSI with counsel. When the court reconvened, Hagins declined the opportunity for more time to
review the PSI. See 1SR2-246-3-5.
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the PSI to the trial transcript, he would have noticed the discrepancy between
Johnson’s testimony at trial, i.e. that Hagins provided one of two drug amounts that
Johnson gave Everette, and his statement to the probation officer preparing the PSI
that Hagins had provided both of the drug quantities Everette received. Hagins
cannot demonstrate, however, that Greene’s failure to review the PSI with him prior
to sentencing prejudiced him in any way.
Hagins essentially argues that the drug weight of one of the two transactions
was improperly counted against him when his sentence under the guidelines was
calculated. Hagins’ sentence was based on an attribution to him of 50 to 100 grams
of crack. Hagins argues that if only one buy was attributed to him, as supported by
the trial testimony, he would only have been responsible for 22.8 grams and the
mandatory minimum sentence would not have been applicable. See Appellant’s
Brief, at 18. Hagins ignores, however, the evidence at trial which attributed to him
substantially more than 50 grams. Agent Gannon testified that Hagins admitted to
him in their interview that Hagins had “progressed into the quarter kilogram weight
. . . during the last year.” Ex. Vol.4-174-177. Hagins also admitted to Gannon that
he had purchased a quarter of a kilogram (250 grams) of cocaine on his last trip to
Florida with Johnson, and on the trip during which he was arrested he was carrying
$10,000 to purchase a half a kilogram (500 grams). Id. Johnson also testified that
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he traveled to Augusta, Georgia three or four times with Hagins to purchase three to
four ounces of crack each time.2 Because of the evidence presented at trial about
the large quantity of cocaine and crack Hagins was buying and selling, he cannot
demonstrate that he was prejudiced by Greene’s failure to challenge the drug
quantity attributed to him on the PSI.
2. Finality of Hagins’ Prior Conviction
Hagins also protests the enhancement of his sentence to a mandatory
minimum of twenty years due to a prior drug conviction. On 19 February 1996,
Hagins pled guilty in Jenkins County, Georgia state court to possession with intent
to distribute cocaine. Hagins was sentenced under Georgia’s First Offender Act,
O.C.G.A. § 42-8-60, et seq., adjudication of guilt was withheld, and he was given
five years probation. Because of Hagins’s arrest for the federal offense, the state
court on 22 January 1997 revoked his first offender status and sentenced him to
fifteen years in prison for the state possession with intent to distribute charge.
When Hagins was sentenced on the federal charge, Greene did not object to the
enhancement of his sentence based on the prior state conviction.
2
An ounce equals approximately 28 grams. Using a conservative estimate of three trips
and three ounces for each trip for a total of 9 ounces, Johnson’s testimony about the Augusta
trips alone attributes a minimum of 252 grams to Hagins.
9
A sentence enhancement under 21 U.S.C. § 841(b)(1)(A) is proper if based
on a final prior conviction. Hagins argues that his prior conviction was not final
until after the conspiracy terminated, as evidenced by the district court’s entry of a
judgment and commitment order (“J&C”) stating that Hagins’ participation in the
conspiracy ended 13 February 1996. Hagins argues that the judge’s later correction
of the J&C to alter the date of Hagins’ involvement in the conspiracy was improper.
Even if the alteration of the J&C was proper, Hagins also argues that his prior
conviction was not final until he exhausted his discretionary direct appeal of the
revocation of his first offender status. Accordingly, he asks us to find that Greene
rendered ineffective assistance by failing to object to the enhancement.
a. The J&C Order
Rule 36 of the Federal Rules of Criminal Procedure provides that “[c]lerical
mistakes in judgments, orders, or other parts of the record and errors in the record
arising from oversight or omission may be corrected by the court at any time.”
Fed.R.Crim.P. 36. The district court’s original J&C stated that the date Hagins’
offense concluded was 13 February, 1996. Ex. Vol.3-165-1. At trial, however, the
evidence presented included an audio tape of a conversation between Johnson and
Hagins on 28 March, 1996. During that call, Hagins informed Johnson that he did
not have an extra two ounces of cocaine, but did have the original amount Johnson
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had asked him to obtain. Ex. Vol. 4-174-103. At sentencing, the district judge
adopted the findings of the PSI, which included a description of the 28 March, 1996
phone call. We find that the district judge properly amended the J&C pursuant to
Rule 36. The change was a clerical one. See United States v. Bates, 213 F.3d 1336,
1340 (11th Cir.), cert. denied, 121 S. Ct. 666 (2000) (holding that, where a written
judgment conflicts with the oral pronouncements of the sentencing judge, the oral
pronouncement at sentencing controls).
b. Finality of Prior Conviction
Hagins also argues that his prior state conviction cannot be used to enhance
his sentence because it is still not yet final. Hagins was sentenced as a first offender
on 19 February, 1996. According to Georgia law, he had thirty days to appeal that
sentence. See O.C.G.A. § 5-6-38 (“A notice of appeal shall be filed within 30 days
after entry of the appealable decision or judgment complained of”). The Georgia
courts have held that classification as a first offender starts the clock for purposes of
filing an appeal.
[F]irst-offender status takes the place of a ‘sentence’ and once imposed
upon a criminal defendant, his case assumes the mantle of finality
necessary to bring a direct appeal of his conviction.
Dean v. State, 338 S.E.2d 711, 712 (Ga.Ct.App. 1985).
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Hagins argues, however, that the finality of his conviction should run from
the direct discretionary appeal of the revocation of his first-offender status. This
argument is specious. In United States v. Fernandez, the defendant had received a
year of probation after pleading nolo contendere to a state charge of trafficking in
cocaine. 58 F.3d 593, 599 (11th Cir. 1995) (per curiam). We held that a sentence
may be enhanced based on such a prior state court sentence of probation under a
deferral statute. Id. at 599-600. See also United States v. Jones, 910 F.2d 760, 761
(11th Cir. 1990) (holding that a similar disposition qualified as a prior conviction for
purposes of determining career offender status). If such a conviction can be used to
enhance a defendant’s sentence without a revocation of probation, it follows that we
need not wait for revocation of probation and any related appeal to deem the
conviction final. Hagins’ conviction became final when the thirty days available to
him to appeal the original disposition expired. That date was 23 March 1996.
Because Hagins’ conviction was final he cannot demonstrate prejudice from
Greene’s failure to object to his sentence enhancement on that basis.
3. Prior Conviction Was Not Part of Relevant Conduct
Finally, Hagins asserts that he was prejudiced by Greene’s failure to object at
sentencing to enhancement of his sentence because the prior conviction was for
drug activity that was part of the same course of conduct as his federal charge. He
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relies on United States v. Hansley, 54 F.3d 709 (11th Cir. 1995) to argue that
insufficient time passed between his state conviction and federal arrest to allow use
of the state conviction as a predicate offense for enhancement purposes. In
Hansley, eighteen months passed between the state conviction and federal arrest.
Id. at 717. The test, however, is not mere passage of time. As the court noted in
Hansley, because the intent of the enhancement provision is to target recidivism, the
focus of the inquiry is on “‘the degree of criminal activity that occurs after a
defendant’s conviction for drug-related activity is final rather than when the
conspiracy began.’” Id. (quoting United States v. Garcia, 32 F.3d 1017, 1019-20 (7th
Cir. 1994)). See also United States v. Howard, 115 F.3d 1151, 1158 (4th Cir. 1997)
(relying on Hansley to determine that conviction during course of conspiracy can
serve as prior conviction for enhancement purposes when a month elapsed between
state conviction and federal arrest).
In Howard, evidence was presented that the defendant continued to engage in
the conspiracy after his state conviction. Id. at 1158. Similarly, Hagins continued
to provide drugs to Johnson as evidenced by the tape of the 28 March phone call.
When Hagins was arrested he had a significant amount of cash which he admitted
he was going to use to purchase drugs. As in Howard, “[t]he only thing that aborted
[his] participation in the drug conspiracy was his arrest in this case.” Id. Hagins
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argument that the state conviction was part of the same course of conduct and
cannot serve as a predicate conviction for enhancement purposes is without merit.
Accordingly, he cannot demonstrate that he was prejudiced by Greene’s failure to
object.
III. CONCLUSION
Because Hagins cannot demonstrate that Greene’s trial performance was
deficient, and because he cannot demonstrate that he was prejudiced by any of
Greene’s actions at sentencing, he has not met the burden of proving that he
received ineffective assistance of counsel. Accordingly, we AFFIRM the district
court’s denial of his § 2255 petition.
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