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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

UNITED STATES OF AMERICA

v. CASE NO. 5:03-cr-00047-MCR/AK

MICHAEL J. HARRINGTON,

Defendant.

___________________________/

REPORT AND RECOMMENDATION

This matter is before the Court on Doc. 135, Motion to Vacate under 28 U.S.C. § 2255, 

by Michael J. Harrington. The Government has filed a response, Doc. 141, and the time for

filing a reply has passed without further argument from Defendant. This cause is therefore in a

posture for decision. Having carefully considered the matter, the Court recommends that the

motion to vacate be denied. 

BACKGROUND

The defendant, Michael J. Harrington, was indicted for conspiracy to manufacture,

distribute, and possess with intent to distribute more than 50 grams of methamphetamine. Doc.

1. Subsequently, the Government filed an Information and Notice of Prior Convictions, advising

Defendant that because he had a prior felony drug conviction, he faced a sentence of not less

than 10 years and not more than life imprisonment. Doc. 37. 

On December 11, 2003, Defendant entered a change of plea. Docs. 56, 59, & 60. During

the plea colloquy, Defendant acknowledged his right to persist in a plea of not guilty and to have

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1

The Court had previously explained to one of the co-defendants “that at the time of

sentencing, if there is evidence to support a finding that you actually were involved in a greater

amount, then the sentence could reflect accordingly[.]” Id. at 37. 

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a jury determine his guilt or innocence beyond a reasonable doubt, his right to call and crossexamine witnesses, his right to remain silent, and his right against self-incrimination. Doc. 105

at 14 & 18. He also acknowledged that he was waiving all defenses to the charges against him

and his right to contest his innocence. Id. at 14-15. Defendant further advised the Court that he

understood that he faced a 10-year minimum mandatory sentence and that he had “not been

promised anything.” Id. at 21-22 & 40. Defendant told the Court that he had read the Plea

Agreement and the Factual Basis and that he agreed with them with one exception, which was

explained by Defendant’s counsel, Christopher Patterson:

Your Honor, if I could interject, Mr. Harrington also takes issue with the actual

drug weights; and, while we have signed the factual basis and did so in good

faith, we would request the court–or I can do it for the court–annotate that it

should read more than 50 grams of methamphetamine to satisfy the indictment to

which he is pleading. But he takes issue–he thinks that that might be less or

more.

I have advised Mr. Harrington that there is a risk of that,1

 and that we would take

that up in our debriefing sessions with the government officials....

Id. at 41-44. The Factual Basis was therefore amended to read that Defendant “is responsible for

more than 50 grams of methamphetamine for his role in this conspiracy,” rather than being

responsible for “between 350 and 500 grams of methamphetamine....” Doc. 59. When the Court

later reiterated that with the change in the Factual Basis, the Government would not be limited at

sentencing to any drug weights, Defendant indicated his understanding. Doc. 105 at 45-46. 

Upon questioning from the Court, Mr. Patterson certified that he had reviewed the Plea

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2

The Presentence Report used by the undersigned in drafting this R&R was provided by 

Pretrial Services as a courtesy and is unsigned. Nevertheless, it appears to coincide with the

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Agreement in detail with Defendant and that he “fel[t] and believe[d] that [he] underst[ood] the

consequences of entering a plea based on his...respective agreement[.]” Id. at 48-49. The Plea

Agreement specifically stated that the Court would “make the final determination of facts as to

any sentencing issue” and that the Court was “not limited to consideration of the facts provided

by” either Defendant or the Government. Doc. 60. Defendant concluded by informing the Court

that he had no “objection whatsoever to the way [Mr. Patterson had] handled [his] case,” and that

he understood that the Court had the authority to depart from any Guidelines range with a

“heavier sentence, and sometimes with a more lenient sentence[.]” Id. at 54-57. The Court then

determined:

At this time I do find that each of you is alert and that you’re intelligent; you

understand the nature of the charges that you face; and I find that you also

appreciate the consequences of entering a guilty plea....

I find that the facts which the government is prepared to prove, and those facts

that you have admitted under oath as being true are sufficient to support your plea

of guilty.

I also find that each of you is fully aware of the effect of the sentencing guidelines

upon your case. You understand how they work; that you have been given the

opportunity to ask any questions about how they might apply to your case; that

you understand the effect they may have upon your case, and that you do

understand the possible sentence or punishment that may be imposed....

I further find that your decision to enter a plea of guilty is freely and voluntarily

made, and that you have had the advice and assistance of an attorney with

whom...you are well pleased.

Id. at 58. 

A Presentence Report was prepared,2

 and Mr. Patterson filed objections on Defendant’s

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Government’s representations as to its contents. See Doc. 141 at 4.

3

The PSR had set Defendant’s Base Offense Level at 32, attributing “at least 677.4 grams

of a mixture and substance containing methamphetamine” to Defendant. PSR at 7. See U.S.

Sentencing Guidelines Manual § 2D1.1(c)(4) (2003). In placing Defendant’s Base Offense

Level at 34, the Court obviously looked to the “actual” amounts of methamphetamine to which

the witnesses testified. See id. at § 2D1.1(c)(3) (Base Offense Level 34 applies if “at least 150 G

but less than 500 G of Methamphetamine (actual)); see also id. at § 2D1.1(c), n.(B)

(“Methamphetamine (actual)” refers to “weight of the controlled substance, itself, contained in

the mixture or substance”; when there is mixture or substance containing methamphetamine, use

offense level determined by entire weight of mixture or substance or offense level determined by

weight of methamphetamine “whichever is greater”). 

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behalf, contesting the drug weights attributable to him and to an enhancement for possession of a

firearm in connection with drug activities. Presentence Report at 20-22. On March 10, 2004,

Defendant appeared for sentencing, and after hearing extensive testimony, the Court held:

As to the objection regarding drug weight, I do overrule that objection. I recall at

the plea...hearing...that [the Government] made it clear that [it] would not be

limited...at sentencing despite Mr. Harrington’s changes on the factual basis to the

plea....

I find that the evidence that was introduced here this morning clearly shows that

there was drug weight in an amount between 115 and 500 grams, if not in excess

of 500 grams, but certainly within that range of 150 to 500. There was ample

evidence of that presented this morning through the testimony of the witnesses,

which I do find to be credible. So the objection as to drug weight is overruled and

the base offense level will be 34.3

As to the objection regarding the weapon...it was abundantly clear from the

evidence and the testimony that the firearm, both the pistol as well as the rifle, but

in particular the pistol, I think every witness who testified here today who was

present in Mr. Harrington’s home testified that they observed that pistol on the

table in and around the methamphetamine and certainly around the area where the

methamphetamine was cooked, and one witness even said it was on the table

where the methamphetamine was cooked. There has been no showing that it was

improbable that there was a connection between the weapons and drugs and I

don’t find Mr. Harrington’s testimony credible in that regard regarding his

intention was for those weapons as far as shooting coons and what have you.

* * *

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The PSR set Defendant’s Total Offense Level at 34, with a Guidelines range of 151-188

months. PSR at 7-8 & 16.

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In summary, there is no question in the Court’s mind that the firearms were

present in the home. They were present and around the methamphetamine and

the precursor agents to the methamphetamine around the area around where the

methamphetamine was manufactured. And I do not find any evidence to show

that it was improbable that there was any connection between the weapons and

the drugs. So the objection will be overruled and that two-point adjustment will

be made.

Now, as to the matter of acceptance, I had a completely open mind when I came

in here regarding the matter of Mr. Harrington’s acceptance, and I was certainly

prepared to hear what he had to say....But now that you have taken the stand, I

simply can not give you a reduction for acceptance. It is clear that in your mind

that you are simply guilty for possession of methamphetamine. You don’t accept

any responsibility for the manufacture, whatsoever, and accuse those who have

testified otherwise of being liars. And as to the matter of distribution, you

wouldn’t even accept full responsibility for that. Your testimony was something

along the lines of that you would give the methamphetamine away on occasion,

but there was certainly no indication from your testimony that you accepted

responsibility for intentionally distributing that methamphetamine and you were

very clear that you did so without any intent of gaining or deriving any profit

from it and your testimony to me suggests that you were trying to remove

yourself as far away from that claim of distribution and also manufacturing as you

could. And so...the government’s objection will be sustained and...there will be

on reduction, no points given for the acceptance.

Doc. 110 at 85-88. With a Base Offense Level of 34 plus the two-point adjustment for the

firearms and no adjustment for acceptance of responsibility, Defendant’s Total Offense Level

was 36. Id. at 89-90. Given his criminal history of Category I, Defendant’s Guidelines range

was 188-235 months.4

 Id. The Court imposed a sentence of 200 months imprisonment on

Defendant, a sentence “imposed at the mid-point of the guideline range due to the lack of the

aggravating and mitigating circumstances not already considered by the Court [and] in

recognition of the minimum mandatory sentence required by statute.” Id. at 92; Doc. 88. The

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Court indicated, however, that if it could have sentenced Defendant to a higher sentence, it

would have. Id. at 91.

Defendant appealed, raising only one ground: that the Court “plainly erred during his

change-of-plea hearing when it failed to ensure his guilty plea was free from coercion and

neglected to inform him he could testify on his own behalf and present evidence if he chose to

proceed to trial.” Doc. 130 at 2. On March 31, 2005, the Eleventh Circuit rejected this

argument, finding:

Viewing the record as a whole...there is no indication Harrington’s plea was not

voluntarily made or his substantial rights were affected. The plea agreement,

factual basis, and plea colloquy reveal Harrington was not promised anything in

exchange for his plea. The record further reveals Harrington understood he could

choose to proceed to trial and retain the constitutional and legal rights he would

waive if he elected to plead guilty. Given the court (1) notified Harrington he

could persist in his not-guilty plea; (2) ensured there were no other promises or

agreements that induced Harrington to plead guilty; and (3) informed him of most

of his Rule 11(b)(1)(E) rights, Harrington failed to demonstrate the court did not

address adequately the Rule 11 core concerns to such an extent his substantial

rights were affected. Nor has Harrington carried his burden of showing that, but

for the court’s errors, he probably would not have pled guilty.

Id. at 4 (citation omitted).

The instant motion to vacate ensued. On this occasion, Defendant raises three claims for

relief. Two of the claims raise Blakely/Booker errors, while the third raises the issue of counsel’s

effectiveness.

DISCUSSION

1. Blakely/Booker.

To the extent that Defendant claims that Blakely/Booker error is structural, “thereby

making such error per se retroactive including to matters on collateral review,” Doc. 135, Mem.

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Even so, the Court considered the relevant statutory factors and found that the sentence

it imposed met “the general goals of punishment also act[ed] as a general and specific deterrence

for others who might engage in similar conduct.” Doc. 110 at 92. In all likelihood, this satisfies

Booker. See United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005) (acknowledgment by

district court that it has considered defendant’s arguments and § 3553(a) factors is sufficient for

Booker purposes). 

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at 19, the argument is without merit. United States v. Pritchett, 135 Fed. Appx. 216, 217-218

(11th Cir. 2005) (refusing to adopt dissent in United States v. Rodriguez, 406 F.3d 1261 (11th Cir.

2005)); United States v. Ingraham, 130 Fed. Appx. 395, 396 n.1 (11th Cir. 2005) (although not

explicitly address in Rodriquez opinion, “it is clear that this Court has rejected the notion that

Booker constitutional error is structural”); see also Varela v. United States, 400 F.3d 864, 868

(11th Cir. 2005) (Booker not retroactively applicable to cases on collateral review, as “Booker’s

constitutional rule falls squarely under the category of new rules of criminal procedure that do

not apply retroactively to § 2255 cases on collateral review”).

Further, because Defendant was sentenced pre-Booker, his sentence is not reviewed for

reasonableness based on the factors set forth in 18 U.S.C. § 3553(a). United States v. Cardenas,

2007 WL 2119918, at *2 (11th Cir. July 25, 2007).5

To the extent that Defendant attacks his sentence based on the enhancement for the prior

felony drug conviction, it is likewise without merit. See United States v. Shelton, 400 F.3d 1325,

1329 (11th Cir. 2005) (district court does not err by relying on prior convictions to enhance

defendant’s sentence).

Though Defendant contested at sentencing, the amount of drugs attributable to him, he

did not raise what was then a Blakely issue. Indeed, at the time of sentencing, Apprendi

controlled and had been interpreted by this circuit as having no applicability to the Sentencing

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Guidelines. United States v. Sanchez, 269 F.3d 1250, 1262 (11th Cir. 2001). Even after Blakely

was decided, the Eleventh Circuit found it inapplicable to the Sentencing Guidelines and

specifically directed district courts to “continue to sentence pursuant to the Guidelines until such

time as the Supreme Court rules on this issue.” United States v. Reese, 382 F.3d 1308, 1312,

1312 n.2 (11th Cir. 2004). Thus, a straight-up Blakely argument would have been found without

merit, not only because of the state of the law at the time but also because of the language of the

Plea Agreement, which left to the Court the issue of the “final determination of facts as to any

sentencing issue,” a matter which was thoroughly explored with Defendant.

Even if Defendant has raised the issue with the Eleventh Circuit, he would have gained

no relief, for that court, in the most generous posture possible, cf. United States v. Duncan, 400

F.3d 1297, 1299 n.1 (11th Cir. 2005) (failure to raise Apprendi-type argument in initial brief

constitutes abandonment of Booker issue), would only have considered a Booker argument not

raised in the district court under a plain error standard of review, which Defendant could not

have prevailed on. Duncan, 400 F.3d at 1299; Shelton, 400 F.3d at 1328. In particular, he could

not have shown that his substantial rights were affected, for the “error that was committed in preBooker sentencing...is not that there were extra-verdict enhancements–enhancements based on

facts found by the judge that were not admitted by the defendant or established by the jury

verdict–that led to an increase in the defendant’s sentence. The error is that there were extraverdict enhancements used in a mandatory guidelines system.” Rodriquez, 406 F.3d at 1299-

1300. “The same extra-verdict enhancement provisions applied after Booker as before.” Id. at

1300; see also United States v. Smith, 480 F.3d 1277, 1281 (11th Cir. 2007) (when district court

applies Guidelines in advisory manner, Booker is not offended when court makes additional

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factual findings beyond defendant’s admissions under preponderance of evidence standard). 

Thus, even if the Court had applied the Guidelines in this case in an advisory fashion, there is not

a reasonable probability that the outcome of the sentencing would have been different, i.e., more

favorable to Defendant. Id. at 1301. Indeed, if anything, it appears that “it is equally plausible

that the error worked in favor of the defense....” Id. at 1300.

In short, none of Defendant’s Booker arguments are well taken.

2. Ineffective assistance of counsel.

Because Defendant’s other claim involves ineffective assistance of counsel, a review of 

Strickland v. Washington, 466 U.S. 668 (1984), is appropriate. 

To prevail on a constitutional claim of ineffective assistance of counsel, a defendant must

demonstrate (1) that his counsel’s performance was below an objective and reasonable

professional norm, and (2) that he was prejudiced by this inadequacy. Strickland, 466 U.S. at

686. The court may dispose of the claim if a defendant fails to carry his burden of proof on either

the performance or the prejudice prong. Id. at 697. The court need not address the adequacy of

counsel’s performance when a defendant fails to make a sufficient showing of prejudice. Id.; see

also Tafero v. Wainright, 796 F.2d 1314, 1319 (11th Cir. 1986).

With regard to the performance prong of Strickland, a defendant must provide factual

support for his contentions that counsel’s performance was constitutionally deficient. Smith v.

White, 815 F.2d 1401, 1406-07 (11th Cir. 1987). The court must consider counsel’s performance

in light of all of the circumstances at that time and indulge in a strong presumption that counsel’s

conduct fell within the wide range of reasonably professional assistance. Strickland, 466 U.S. at

689-90. To show counsel’s performance was unreasonable, a defendant must establish that “no

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competent counsel would have taken the action that his counsel did take.” Grayson v. Thompson,

257 F.3d 1194, 1216 (11th Cir. 2001) (emphasis omitted). “An ambiguous or silent record is not

sufficient to disprove the strong and continuing presumption...that [counsel] did what he should

have done and that he exercised reasonable professional judgment.” Chandler v. United States,

218 F.3d 1305, 1314 n.15 (11th Cir. 2000) (en banc), cert. denied, 531 U.S. 1204 (2001). “The

relevant question is not whether counsel’s choices were strategic, but whether they were

reasonable.” Roe v. Flores-Ortega, 528 U.S. 470, 481 (2000). There are no “absolute rules” for

determining whether counsel’s actions were indeed reasonable, as “[a]bsolute rules would

interfere with counsel’s independence–which is also constitutionally protected–and would

restrict the wide latitude counsel have in making tactical decisions.” Putnam v. Head, 268 F.3d

1223, 1244 (11th Cir. 2001). “To uphold a lawyer’s strategy, [the Court] need not attempt to

divine the layer’s mental processes underlying the strategy.” Chandler, 218 F.3d at 1315 n.16. 

“No lawyer can be expected to have considered all of the ways [to provide effective assistance].” 

Id. Quite importantly,

If a defense lawyer pursued course A, it is immaterial that some other reasonable

courses of defense (that the lawyer did not think of at all) existed and that the

lawyer’s pursuit of course A was not a deliberate choice between course A,

course B, and so on. The lawyer’s strategy was course A. And [the Court’s]

inquiry is limited to whether this strategy, that is, course A, might have been a

reasonable one.

Id.

To show prejudice, a defendant must show more than simply that counsel’s unreasonable

conduct might have had “some conceivable effect on the outcome of the proceeding.” Strickland,

466 U.S. at 693. Instead, a defendant must show a “reasonable probability that, but for counsel’s

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unprofessional errors, the result of the proceeding would have been different.” Id. at 694. A

“reasonable probability is defined as a probability sufficient to undermine confidence in the

outcome.” Id. Additionally, prejudice is established only with a showing that the result of the

proceeding was fundamentally unfair or unreliable. Lockhart v. Hill, 506 U.S. 364, 370 (1993). 

Finally, the Eleventh Circuit has recognized that given the principles and presumptions

set forth above, “the cases in which habeas petitioners can properly prevail...are few and far

between.” Chandler, 218 F.3d at 1313 (11th Cir. 2000). This is because the test is not what the

best lawyers would have done or even what most good lawyers would have done, but rather

whether a reasonable lawyer could have acted in the circumstances as defense counsel acted. 

Williamson v. Moore, 221 F.3d 1177, 1180 (11th Cir. 2000), cert. denied, 534 U.S. 903 (2001).

Defendant claims that counsel failed to advise him “that he had an express 6th

Amendment Right to require the government to prove, beyond a reasonable doubt, each and

every factor and component that could or would affect the severity of defendant’s punishment.” 

Doc. 135, Mem. at 15. He also maintains that Mr. Patterson failed to advise him that he had the

“right to attack his sentence on direct appeal and collateral attack and that the rights to such

challenges might be foreclosed by language in the very plea agreement the attorney was

encouraging defendant to sign.” Id. at 15-16. He further argues that counsel “misled” him as to

his potential sentence and the rights “that could be waived in the plea agreement” and that his

plea was not otherwise knowing and voluntary. Id. at 16-18.

Any claim that his plea was not knowing and voluntary was rejected by the Eleventh

Circuit on direct appeal and will not be reconsidered here. United States v. Nyhuis, 211 F.3d

1340, 1343 (11th Cir. 2000), cert. denied, 531 U.S. 1131 (2001). Furthermore, the record plainly

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refutes Defendant’s other claims. In an early letter to Defendant, counsel told him in the first

sentence that the burden was on the Government to “prove guilt beyond a reasonable doubt.” 

Doc. 141, Ex. 2B. A week later, Mr. Patterson sent Defendant another letter reiterating that the

Government “must prove the defendant guilty beyond a reasonable doubt.” Id. at Ex. 2D. After

the Government filed its notice of enhancement, he forwarded a copy to Defendant and

explained that he now faced “a penalty range, if convicted, of ten (10) years to Life.” Id. at 2E. 

Shortly thereafter, he advised Defendant that he must decide whether he wanted to testify in his

own behalf. Id. at 2G. A few days later, counsel sent Defendant a letter confirming “the

discussions we had today regard[ing] your ‘last chance’ to enter a plea in this matter.” Id. at 2I. 

In that letter, counsel stated:

We discussed how, if convicted, the Government will not do anything to assist

you in a subsequent sentence reduction. We discussed how your three codefendants will enter pleas and testify against you, as well as other persons such

as Ferrell English. We also discussed how, if convicted, your sentence would be

at least 10 years to life. I think a more realistic sentence would be somewhere

from at least 135 months upwards, based upon our discussions about the

Sentencing Guidelines. We also discussed how the firearms would be calculated

in any potential sentencing.

Id. Finally, on the day before the plea, counsel hand delivered a letter to Defendant explaining

that “[b]efore entering a plea to federal criminal charges, the Court must be satisfied that your

plea is freely and voluntarily entered, and that there are sufficient facts to support the plea you

enter.” Id. At 2J. He then told Defendant that he had the right (1) to a jury trial in which his

guilt or innocence would be determined, (2) to have the assistance of counsel at trial, (3) against 

self-incrimination, (4) to cross-examine witnesses and to compel the attendance of witnesses,

and (5) to persist in a plea of not guilty “which means the Government would then have the

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burden of proving your guilt to the jury, by the evidence, by a standard of proof known as

‘beyond a reasonable doubt.’” Id. He further advised Defendant that if he pled guilty, he would

“give up the right to appeal the question of your guilt or innocence,” but that he could appeal

“the sentence that might be imposed.” Id. Mr. Patterson also explained that if he pled guilty, the

Court would advise him of the possible penalties in this case and confirmed that he and

Defendant had discussed the Sentencing Guidelines, “how they work, and how they may affect

your case.” Id. He reminded Defendant that his sentence could “only be determined after the

probation office completes a presentence report....Only then can a range of sentencing be

determined from the guidelines.” Id.

Though the Court is certain that the attorneys who routinely represent criminal

defendants in this Court review and explain pertinent trial, plea, and sentencing issues with their

clients, quite frankly, Mr. Patterson more thoroughly memorialized his discussions with

Defendant than the undersigned has previously seen, and his letters refute every allegation of

ineffectiveness. If more attorneys took the time–and the Court knows the time constraints under

which they work–to do what Mr. Patterson did in this case, in some form or another (for

example, a simple checklist or statement signed and dated by the client establishing that counsel

reviewed the relevant constitutional and statutory issues), would greatly aid this Court in

disposing of claims of ineffectiveness and would save defense and Government counsel and the

Court a tremendous amount of time and resources.

This claim is also without merit.

CONCLUSION

As none of Defendant’s claims have merit, the motion to vacate should be denied. 

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Accordingly, it is respectfully RECOMMENDED that the motion to vacate, Doc. 135, be

DENIED.

IN CHAMBERS at Gainesville, Florida, this 24th day of August, 2007.

s/ A. KORNBLUM 

ALLAN KORNBLUM

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and recommendations

within 15 days after being served with a copy of this report and recommendation. A party may

respond to another party’s objections within 10 days after being served with a copy thereof. Failure

to file specific objections limits the scope of review of proposed factual findings and recommendations.

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