     Case: 14-30220   Document: 00513432207      Page: 1   Date Filed: 03/21/2016




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                 No. 14-30220                   United States Court of Appeals
                                                                         Fifth Circuit

                                                                       FILED
UNITED STATES OF AMERICA,                                         March 21, 2016
                                                                  Lyle W. Cayce
                               Plaintiff - Appellee                    Clerk

v.

FLETCHER FREEMAN, JR.,

                               Defendant - Appellant



                Appeal from the United States District Court
                   for the Western District of Louisiana


Before JONES, WIENER, and HIGGINSON, Circuit Judges.
EDITH H. JONES, Circuit Judge:
      Fletcher Freeman, Jr., (“Freeman”) was convicted by a jury of conspiracy
to possess with intent to distribute cocaine and other controlled substances and
of possession with intent to distribute cocaine. He was sentenced to concurrent
terms of 210 months of imprisonment for each offense and concurrent five-year
terms of supervised release.    This court affirmed his conviction on direct
appeal, and the Supreme Court denied his petition for a writ of certiorari.
United States v. Zamora, 661 F.3d 200, 211-12 (5th Cir. 2011), cert. denied,
132 S. Ct. 1771 (2012).
      Freeman filed a 28 U.S.C. § 2255 motion, raising numerous allegations
of ineffective assistance of trial counsel. The district court denied Freeman’s
§ 2255 motion and denied a certificate of appealability (“COA”). This court,
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however, granted a COA on the issue whether Freeman’s trial counsel was
ineffective for failing to move to dismiss the possession with intent to distribute
cocaine charge in count three (“count three”) of the superseding indictment as
barred by the five-year statute of limitations. After reviewing the briefing, the
record, and the applicable law, we REVERSE the district court’s denial of
Freeman’s § 2255 motion and REMAND with instructions to strike the count
three conviction from Freeman’s criminal judgment and remit the fine
associated therewith.
                          STANDARD OF REVIEW
      In reviewing the denial of a § 2255 motion and the district court’s
assessment of effectiveness of counsel, the appellate court reviews the district
court’s factual findings for clear error and the legal conclusions de novo.
United States v. Kayode, 777 F.3d 719, 722-23 (5th Cir. 2014).
                                 DISCUSSION
      Freeman argues that the district court erred in denying his claim that
his trial counsel was ineffective because he failed to move to dismiss count
three of the superseding indictment as barred by the statute of limitations.
The district court determined that Freeman did not show that his counsel was
deficient by failing to dismiss count three because his counsel acted reasonably.
Defense counsel averred in the district court that he considered the limitations
issue, but concluded that the superseding indictment related back to the date
of the original indictment because it did not expand the charges.
Therefore, Freeman’s counsel concluded that filing the motion was futile.
      The district court found that because Freeman was found guilty of
conspiracy to traffic 50 kilograms of cocaine, the possession conviction
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                                 No. 14-30220
involving 500 grams was minuscule and likely inconsequential to Freeman’s
prison term.
      On appeal, Freeman contends that he was not placed on notice that he
was being charged with count three until the superseding indictment was filed
on March 11, 2009. Count three alleged that the possession offense occurred
on September 4, 2003. Because the superseding indictment was filed more
than five years after the alleged offense, Freeman argues that his counsel
should have filed a motion to dismiss count three as barred by the five-year
statute of limitations. 18 U.S.C. § 3282(a); United States v. McMillan, 600 F.3d
434, 444 (5th Cir. 2010).
      Freeman adds that he was prejudiced by counsel’s error because he was
convicted of count three and sentenced to a term of incarceration on that count.
He asserts that his term of incarceration is affected based on the number of
counts within the Federal Bureau of Prisons Custody Classification. Freeman
also argues that the he was prejudiced because he had to pay a $100 special
assessment as a result of the conviction.
      He further contends that there is a reasonable probability that based on
the evidence presented on count three, there was a “spill-over” effect that led
the jury to convict him of the conspiracy count. He asks the court to vacate his
convictions on both counts and to grant a new trial on the conspiracy count.
Alternatively, he asks the court to vacate count three and hold an evidentiary
hearing to review any prejudicial “spill-over” effect that the count three
evidence might have had on the jury’s verdict.
      The Government essentially concedes that count three was barred by the
statute of limitations, but contends that Freeman’s counsel was not ineffective
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                                 No. 14-30220
because Freeman would still have been convicted of conspiracy and would have
been sentenced to the same prison term.
      To prevail on an ineffective assistance claim, a defendant must show
“that counsel’s performance was deficient” and “that the deficient performance
prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984).
The deficiency prong “requires that [counsel] research relevant facts and law,
or make an informed decision that certain avenues will not be fruitful.”
United States v. Fields, 565 F.3d 290, 294 (5th Cir. 2009) (internal quotation
marks and citation omitted). “[S]olid, meritorious arguments based on directly
controlling precedent should be discovered and brought to the court’s
attention.” See id. (internal quotation marks and citation omitted). However,
the fact that an attorney reached the wrong conclusion does not necessarily
make his performance deficient as the right to counsel does not guarantee
error-free counsel. See Emery v. Johnson, 139 F.3d 191, 197 (5th Cir. 1997);
Skillern v. Estelle, 720 F.2d 839, 851 (5th Cir. 1983).
      Under the prejudice prong, the defendant normally must show that there
is a reasonable probability that, but for counsel’s deficient performance, the
result of the proceeding would have been different, or that counsel’s errors were
so serious that they rendered the proceedings fundamentally unfair or the
result unreliable.    Strickland, 466 U.S. at 694; Lockhart v. Fretwell,
506 U.S. 364, 372 (1993).
      We hold that Freeman’s counsel was deficient by not filing a motion to
dismiss count three. Freeman’s counsel was required to perform research on
whether the superseding indictment would relate back to the original
indictment. See Fields, 565 F.3d at 294. Although counsel’s affidavit stated
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                                      No. 14-30220
that he considered the issue, the record is silent as to the extent of counsel’s
research.
       Even minimal research would have revealed that the policy underlying
the limitations doctrine is notice to the defendant. Given that the original
indictment did not name Freeman at all, counsel would have had a compelling
argument that the superseding indictment would not relate back even if the
charges were the same. This is not a case in which the indictment merely
broadened the charges against an already-named defendant. See McMillan,
600 F.3d at 444. For example, in United States v. Grammas, 376 F.3d 433,
436-37 (5th Cir. 2004), this court held that counsel’s performance was deficient
because he failed to perform research that would have revealed that his client’s
two prior convictions were crimes of violence and thus grossly underestimated
his client’s sentencing exposure when advising him whether to plead guilty.
See also United States v. Conley, 349 F.3d 837, 841 (5th Cir. 2003) (holding
that attorneys did not meet Strickland standard because they failed to
recognize and argue that the defendant should not receive more than 60
months of imprisonment on one count).
       The “prejudice prong” is also supported by the record. Freeman had to
pay a $100 special assessment on count three; thus, he suffered prejudice as a
result of counsel’s failure to move to dismiss said count. 1 See United States


       1Freeman is not directly challenging the $100 special assessment. Such challenge
would be outside the scope of § 2255. See United States v. Gaudet, 81 F.3d 585, 592 (5th Cir.
1996). He merely uses the fine as evidence of prejudice because he would not have been
assessed the fine if he had not been convicted on count three. Because we vacate that count,
however, Freeman is entitled to remittance of the fine. See United States v. Bass, 310 F.3d
321, 330 (5th Cir. 2002).
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                                      No. 14-30220
v. Bass, 310 F.3d 321, 330 (5th Cir. 2002). Additionally, there is a reasonable
probability that, but for counsel’s failure to move to dismiss count three, the
result of the proceeding would have been different because count three would
have likely been dismissed and the government could not have reindicted
Freeman on that count. 2 See Strickland, 466 U.S. at 694; see also United States
v. Gunera, 479 F.3d 373, 375 (5th Cir. 2007) (reversing conviction and
dismissing indictment as barred by statute of limitations); United States v.
Wilson, 322 F.3d 353, 354-55 (5th Cir. 2003) (same). But because Freeman’s
counsel did not move to dismiss count three, his criminal history reflects a
conviction on a crime that should not have been part of his trial.
       Freeman has shown that his counsel was ineffective for the reasons
stated above. Therefore, it is unnecessary to reach Freeman’s argument that
he was prejudiced by the “spill-over” effect of the count three evidence.
                                    CONCLUSION
       For the foregoing reasons, we REVERSE the district court’s judgment




       2 Although under the savings clause of 18 U.S.C. § 3288, if an indictment is dismissed
for any reason after the statute of limitations has expired, a new indictment may be returned
within six months of the dismissal of the indictment and will not be barred by any statute of
limitations, this statute is inapplicable in the present case because the original indictment
did not name Freeman, and the superseding indictment naming Freeman was not filed
within the limitations period and did not relate back to the original indictment.
See McMillan, 600 F.3d at 444.

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                                       No. 14-30220
denying § 2255 relief and REMAND with instructions that the court only
strike Freeman’s conviction on count three from his criminal judgment and
remit the $100 fine associated with that count. 3




       3 A resentencing hearing is not necessary because striking count three will not result
in setting aside the original sentence and imposing a new one. Nor will striking count three
modify the current sentence into a more onerous one. Freeman was sentenced to concurrent
terms of 210 months of imprisonment for each count and concurrent five-year terms of
supervised release. Because of the equal concurrent terms, striking the conviction on count
three will still result in the same prison and supervised released terms. See United States v.
Patterson, 42 F.3d 246, 248-49 (5th Cir. 1994) (per curiam); United States v. Moree, 928 F.2d
654, 655-56 (5th Cir. 1991).


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