The opinion of the court was delivered by: Chief Judge Curtis L. Collier
This matter comes before the Court on the motion of pro se petitioner Jason Davis ("Petitioner") to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (Court File No. 1, "Petition"). Petitioner attached a memorandum at the back of his Petition (Court File No. 1, "Petitioner's memorandum"). Pursuant to the Court's Order (Court File No. 3), the Government filed a response to Petitioner's motion (Court File No. 4, "Government's Response"). Petitioner then filed a traverse to the Government's response (Court File No. 5, "Petitioner's traverse"). The Court finds the materials thus submitted, together with the complete record of the underlying criminal case,*fn1 conclusively show Petitioner is not entitled to relief on the claims asserted in his Petition. Accordingly, the Court will decide those matters without an evidentiary hearing, see United States v. Todaro, 982 F.2d 1025, 1028 (6th Cir.), cert. denied, 508 U.S. 943, 113 S.Ct. 2423, 124 L.Ed. 2d 644 (1993), and will DENY Petitioner's motion for the reasons stated herein.
I. FACTUAL AND PROCEDURAL BACKGROUND
From August 2001 to February 2002, Petitioner conspired with others to commit, and did commit, armed robbery of various businesses in Chattanooga, Tennessee. (Crim. Court File No. 98, Plea Agreement at ¶ 24.) The Government charged Petitioner and others with this conspiracy and with committing ten armed robberies. (Crim. Court File No. 1, Indictment.) On July 24, 2003, Petitioner pleaded guilty pursuant to a written plea agreement to conspiracy to commit robbery in Count One; armed robbery in Counts Four, Six, Eight, Ten, Twelve and Fourteen; brandishing a firearm in Count Five that was in furtherance of the armed robbery in Count Four; and brandishing a firearm in Count Seven that was in furtherance of the armed robbery in Count Six. (Crim. Court File No. 98 at ¶¶ 1-9.) In paragraph 24, Sections a through j, of his plea agreement, Petitioner stipulated to a lengthy recitation of facts covering 5 pages. (Crim. Court File No. 98 at ¶ 24.) The Court incorporates by reference all stipulated facts contained within paragraph 24 of Petitioner's plea agreement. (Id.) At the time of sentencing, the Government dismissed Counts Three, Nine, Eleven, Thirteen, Fifteen, Sixteen, Seventeen, Eighteen, Nineteen Twenty and Twenty-One of the Indictment as to Petitioner.
The Presentence Investigation Report ("PSR") was prepared and provided to the parties. Under USSG § 3D1.2(d), substantive counts can be grouped with the count charging a conspiracy, but the robbery counts cannot be grouped with one another. Therefore, the probation officer grouped the conspiracy count with each of the substantive counts. (PSR at ¶¶ 73-117.) Then, for each of those groups, the probation officer determined the base offense level. (Id. at ¶¶ 74, 82, 89, 96, 103, 111.) Pursuant to USSG § 2K2.4, Application Note 4, although Petitioner or others brandished a firearm in each of the armed robberies to which Petitioner pleaded guilty, the probation officer did not increase the base offense level for the armed robberies in Count Four or Six because Petitioner pleaded guilty to the same conduct of brandishing a firearm in Counts Five and Seven in violation of 18 U.S.C. § 924(c). (Id. at ¶¶ 75, 83.) Pursuant to USSG § 2B3.1(b)(2)(B), the probation officer increased the base offense level for the armed robberies in Counts Eight, Ten, Twelve and Fourteen because Petitioner or others brandished a firearm in furtherance of those robberies. (Id. at ¶¶ 90, 97, 104, 112.)
Next, the probation officer applied a multiple count-adjustment. As a result, Petitioner had a combined adjusted offense level of 30, which was reduced by three levels for acceptance of responsibility to offense level 27. (Id. at ¶¶ 73, 120-129, 131-133.) Petitioner's criminal history points totaled 19, which established a criminal history category of VI.
However, as shown in Petitioner's criminal history in the PSR, Petitioner had been convicted of five violent felony offenses. (Id. at ¶¶ 144, 149-52.) Pursuant to USSG § 4B1.1, Petitioner is a Career Offender because he was at least eighteen years old at the time he committed the instant offense of conviction, the instant offense of conviction is a felony that is a crime of violence, and he has at least two prior felony convictions of a crime of violence. (Id. at ¶¶ 134, 156.) Therefore, as a Career Offender, Petitioner's offense level was enhanced to 32, reduced by three levels to 29 for acceptance of responsibility, and his criminal history category was VI. (Id. at ¶¶ 134-36, 156.) Petitioner's sentencing range was 151 to 188 months. In addition, as required by 18 U.S.C. § 924(c)(1)(A)(ii), petitioner faced a mandatory minimum consecutive term of imprisonment of seven years for the brandishing a firearm in Count Five and twenty-five years for the second or subsequent conviction for brandishing a firearm in Count Seven. (Id. at ¶¶ 117, 118, 193, 194.) Petitioner's effective guideline range was 535 to 572 months. (Id. at 195.)
The Court imposed a sentence of 540 months. Petitioner was represented by attorney John Brooks ("Counsel") at all stages of the proceedings. Petitioner did not appeal his conviction or sentence. Judgment was entered January 30, 2004. (Crim. Court File No. 138, Judgment.) On January 10, 2005, Petitioner timely filed the present motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. (Crim. Court File No. 145; Court File No. 1.) Petitioner now raises three claims attacking the judgment in his case (Court File No. 1 at 4-5). For the reasons stated below, these claims provide no basis to grant his Petition.
Section 2255 of Title 28 of the United States Code permits a prisoner in custody under sentence of a federal court to move the court that imposed the sentence to vacate, correct, or set aside that sentence, on the grounds: the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack . . . .
28 U.S.C. § 2255. This Court has jurisdiction under 28 U.S.C. § 1331. Petitioner has the burden of establishing any claim asserted in the petition. See Bowers v. Battles, 568 F.2d 1, 5 (6th Cir. 1977); Mayes v. United States, 93 F. Supp. 2d 882, 886 (E.D. Tenn. 2000).
Where a constitutional error is alleged, in order to obtain relief under § 2255 the record must reflect a constitutional error of such magnitude it had a substantial and injurious effect or influence on the proceedings. See Brecht v. Abrahamson, 507 U.S. 619, 637-38, 113 S.Ct. 1710, 1721-22, 123 L.Ed. 2d 353 (1993); Watson v. United States, 165 F.3d 486, 488 (6th Cir. 1999). In order to prevail on a § 2255 motion alleging non-constitutional error, a petitioner must show a "fundamental defect in the proceedings which necessarily results in a complete miscarriage of justice or an egregious error violative of due process." Riggs v. United States, 209 F.3d 828, 831 (6th Cir.), cert. denied, 531 U.S. 884, 121 S.Ct. 200, 148 L.Ed. 2d 140 (2000); Gall v. United States, 21 F.3d 107, 109 (6th Cir. 1994). Thus, "[a] motion brought under § 2255 must allege one of three bases as a threshold standard: (1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law that was so fundamental as to render the entire proceeding invalid." Weinberger v. United States, 268 F.3d 346, 351 (6th Cir. 2001).
One of Petitioner's claims rest on allegations of ineffective assistance of counsel. The Sixth Amendment provides, in pertinent part, "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense." U.S. Const. amend. VI. A defendant has a Sixth Amendment right not just to counsel, but to "reasonably effective assistance" of counsel. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674 (1984). In Strickland, the Supreme Court set forth a two-pronged test for evaluating claims of ineffective assistance of counsel:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable. 466 U.S. at 687, 104 S.Ct. at 2064. As with any other claim under § 2255, the burden of proving ineffective assistance of counsel is on the petitioner. Virgin Islands v. Nicholas, 759 F.2d 1073, 1081 (3d Cir. 1985).
In considering the first prong of the test set forth in Strickland, the appropriate measure of attorney performance is "reasonableness under prevailing professional norms." Strickland, 466 U.S. at 688, 104 S.Ct. at 2065. A defendant asserting a claim of ineffective assistance of counsel must "identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment." Id. at 690, 104 S.Ct. at 2066. The evaluation of the objective reasonableness of counsel's performance must be made "from counsel's perspective at the time of the alleged error and in light of all the circumstances, and the standard of review is highly deferential." Kimmelman v. Morrison, 477 U.S. 365, 381, 106 S.Ct. 2574, 2586, 91 L.Ed. 2d 305 (1986).
The second prong of the Strickland test requires the petitioner show counsel's deficient performance prejudiced the defense. Thus, "[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Strickland, 466 U.S. at 691, 104 S.Ct. at 2066. The petitioner must show "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068. The Strickland Court emphasized both prongs must be established in order to meet the claimant's burden, and if either prong is not satisfied the claim must be rejected, stating:
Although we have discussed the performance component of an ineffectiveness claim prior to the prejudice component, there is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one . . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed. Courts should strive to ...