Michael Riolo v. USA, No. 18-11096 (11th Cir. 2022)
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Petitioner appealed the district court’s denial of his 28 U.S.C. Section 2255 motion to vacate his 293-month prison sentence and convictions. Petitioner argued to the district court that his trial counsel provided ineffective assistance of counsel. Specifically, Petitioner asserted that his attorney told him if he pled guilty to five counts of mail fraud, he would serve no more than 10 years in prison because she had a deal with the government that his sentencing range would be 97–121 months’ imprisonment under the Sentencing Guidelines
The Eleventh Circuit affirmed the district court’s judgment and found that Petitioner’s attorney did not provide Petitioner with ineffective assistance by telling him she had an agreement with the government about his guideline range. Further, the court concluded that Petitioner’s attorney did provide ineffective assistance by underestimating Petitioner’s guideline range.
The court explained that to show deficient performance, the movant must establish that his attorney’s representation “fell below an objective standard of reasonableness.” The “petitioner bears the heavy burden of showing that no competent counsel would have taken the action that his counsel did take.” Gissendaner v. Seaboldt, 735 F.3d 1311 (11th Cir. 2013).
Here, the court concluded that there was no clear error in the district court’s finding that Petitioner’s attorney reviewed each provision of the plea agreement with him at some point before the change-of-plea hearing. Further, the court held that the district court did not clearly err in finding that Petitioner’s attorney reviewed the plea agreement with Petitioner before the change-of-plea hearing.
This opinion or order relates to an opinion or order originally issued on August 16, 2019.
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