United States District Court, D. Rhode Island
MEMORANDUM AND ORDER
J. McConnell, Jr., United States District Judge.
the court is Petitioner Victor C. Radbill's motion to
vacate his sentence pursuant to 28 U.S.C. § 2255,
claiming ineffective assistance of counsel. Specifically, Mr.
Radbill alleges that his attorney failed to negotiate
effectively on his behalf by not convincing the U.S.
Attorney's Office to allow him to be prosecuted by the
state of Rhode Island instead of the federal government. For
the following reasons, Mr. Radbill's motion is DENIED.
Radbill is currently serving a ten year sentence, imposed by
this court, for possession of child pornography in violation
of 18 U.S.C. § 2252(a)(4). ECF No. 30 at 2. Mr. Radbill
was indicted by a federal grand jury (ECF No. 1 at l)
following his arrest by Rhode Island State Police detectives
assigned to the Internet Crimes Against Children Taskforce.
ECF No. 40 at 2.
assistant federal defender was assigned to the case and
entered his appearance on behalf of Mr. Radbill. ECF No. 3.
During his representation of Mr. Radbill, the federal
defender communicated with the U.S. Attorney's office
regarding mitigation for Mr. Radbill, the possibility of
lessening his sentence by proceeding in state court instead
of federal court, and trial preparation. ECF No. 40 at 14-18.
Despite the federal defender's efforts, the U.S.
Attorney's Office declined to dismiss the charges and
allow Mr. Radbill to be prosecuted solely by Rhode Island.
Id. at 1. Mr. Radbill subsequently entered into a
plea agreement with the U.S. Attorney's Office (ECF No.
21) and this Court imposed the mandatory minimum sentence for
his conduct often years. ECF No. 30 at 2.
Radbill timely filed a motion to vacate his sentence pursuant
to 28 U.S.C. § 2255. ECF No. 38. Chief among Mr.
Radbill's concerns is that he faced a mandatory minimum
sentence of ten years under federal law when no such
mandatory minimum is required by Rhode Island law.
Id. at 4. He alleges that his federal defender was
ineffective in negotiations with the government, being unable
to "persuade the U.S. Attorney's Office to use its
prosecutorial discretion and decline to indict, as [he] was
already facing time in state prison." Id. at 5.
STANDARD OF REVIEW
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, 686 (1984).
A claim of ineffective assistance of counsel requires a
convicted defendant to prove the deficiency of counsel's
representation and resulting prejudice to his defense.
Id. at 687. Since the same notions of fundamental
fairness undergird habeas petitions, no "special
standards" are required to discern ineffective
assistance in that setting. Id., at 697-98.
is deficient when it fails to meet an "objective
standard of reasonableness" within the field at the
time. U.S. v. Rodriguez, 675 F.3d 48, 56 (1st Cir.
2012) (internal quotation marks omitted). Furthermore,
"a guilty plea cannot be attacked as based on inadequate
legal advice unless counsel was not 'a reasonably
competent attorney' and the advice was not 'within
the range of competence demanded of attorneys in criminal
cases.'" Strickland, 466 U.S at 687,
(quoting McMann v. Richardson, 397 U.S. 759, 770
(1970)). The dangers of hubristic hindsight caution the court
to take a deferential view of counsel's conduct when
determining whether it falls within the panoply of tactical
decisions that may be reasonable assistance under the
circumstances. Rodriguez, 675 F.3d at 56.
Essentially, the defendant must vitiate the presumption that
"the challenged action might be considered sound trial
strategy." Id. (internal quotation marks and
citations omitted). The ineffective assistance prong is only
satisfied when, "counsel's 'choice was so
patently unreasonable that no competent attorney would have
made it....'" Knight v. Spencer, 447 F.3d
6, 15 (1st Cir. 2006).
"prejudice/' Mr. Radbill must establish a
"reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different." Strickland, 466 U.S. at 694. Mr.
Radbill need not show that the different outcome is more
likely than not the result of deficient representation, but
consonant with the notion of fundamental fairness must
demonstrate "a probability sufficient to undermine
confidence in [the] outcome." Rodriguez, 675
F.3d at 57 (quoting Porter v. McCollum, 558 U.S. 30,
Radbill's allegations of ineffective assistance of
counsel rest primarily on the fact that his attorney was
unable to persuade the U.S. Attorney's Office to forego
prosecution of his conduct and instead allow him to face
charges in the Rhode Island criminal justice system. EOF No.
38 at 5. He further asserts that he should have faced only
state charges and that "an effective attorney would have
stressed this point in plea negotiations and pretrial
hearings and at the very least at [his] allocution and [his]
sentencing. Id. Although Mr. Radbill is correct that
his attorney's plea negotiations were unavailing with
regards to wresting from the U.S. Attorney's Office its
desire to prosecute him, this Court can not find that his
attorney's conduct "was so patently unreasonable
that no competent attorney would have made it,
...'". Knight v. Spencer, 447 F.3d at 15.
Similarly, although Mr. Radbill's attorney did not argue
during his sentencing that he should only have faced state
charges (ECF No. 34, Passim), such a line of argument would
have been futile. See Vieux v. Pepe, 184 F.3d 59, 64
(1st Cir. 1999) ("failing to pursue a futile tactic does
not amount to constitutional ineffectiveness).
record clearly illustrates the federal defender's attempt
to protect Mr. Radbill from the mandatory minimum sentence
imposed by federal law. ECF No. 40 at 14. Contending that Mr.
Radbill's mental health problems mitigated his
culpability such that a ten year sentence was excessive, he
suggested working around the federal mandatory minimum by
arranging a plea to state charges. Id. The federal
defender's attempts to negotiate with the U.S.
Attorney's Office fall squarely within the bounds of
reasonable competence demanded of criminal defense attorneys.
His tactics were unsuccessful, but they do not amount to
ineffective assistance of counsel. See, U.S. v.
Natanel, 938 F.2d 302, 310 (1st Cir. 1991) ("The
Constitution does not guarantee a defendant...a successful
the federal defender's silence on the issue of state
charges during Mr. Radbill's sentencing hearing can not
be understood as ineffective assistance of counsel. At that
stage of the proceedings, any argument that Mr. Radbill
should have been charged by the state would have been futile.
Mr. Radbill had already pleaded guilty to a federal crime
carrying a statutory minimum sentence of 10 years, (ECP No.
21), the government recommended the minimum sentence,
(Id. at 2), and that is exactly the sentence the
court imposed. ECF No. 34. The court could not have been
persuaded by Mr. ...