United States District Court, W.D. Tennessee, Eastern Division
ORDER DENYING AND DISMISSING MOTION PURSUANT TO 28 U.S.C. § 2255 ORDER DENYING CERTIFICATE OF APPEALABILITY ORDER CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH AND ORDER DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
JAMES D. TODD, District Judge.
On January 17, 2012, Defendant Vidale Walker filed a motion pursuant to 28 U.S.C. § 2255 alleging that trial and appellate counsel provided ineffective assistance. (ECF No. 1.) On May 8, 2012, the Court directed the United States to respond to the motion to vacate. (ECF No. 4.) On June 28, 2012, the United States filed an answer contending that Defendant's motion is without merit. (ECF No. 7.)
I. PROCEDURAL HISTORY
On August 20, 2007, a federal grand jury in the Western District of Tennessee returned a superseding indictment against Defendant Walker charging him with one count of conspiracy to possess in excess of 50 grams of a mixture and substance containing a detectable amount of methamphetamine with intent to distribute, in violation of 21 U.S.C. § 846 (Count One), one count of possession of approximately 55 grams of a mixture and substance containing methamphetamine with intent to distribute and distribution, in violation of 21 U.S.C. § 841(a)(1) (Count Two), one count of possession of a detectable amount of a mixture and substance containing methamphetamine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) (Count Three), and one count of possession of approximately 71.3 grams of a mixture and substance containing methamphetamine with intent to distribute and distribution, in violation of 21 U.S.C. § 841(a)(1). (Criminal ("Cr.") ECF No. 56.)
A jury trial commenced on February 6, 2008. (Cr. ECF No. 81.) On February 8, 2008, the jury returned a guilty verdict on Counts One, Two, and Four of the indictment and a not guilty verdict on Count Three. (Cr. ECF Nos. 85-86.) On May 14, 2008, the Court conducted a sentencing hearing and imposed a sentence of 384 months imprisonment. (Cr. ECF No. 95.) Judgment was entered on May 19, 2008. (Cr. ECF No. 97.)
Defendant contended on appeal: that the evidence was insufficient to establish his participation in the conspiracy; that the Court erred in determining the amount of drugs attributable to Defendant; that the Court erred in applying a leadership enhancement: and that the Court erred in applying an enhancement for obstruction of justice. United States v. Walker, 2010 WL 4320408 (6th Cir. 2010). On October 26, 2010, the United States Court of Appeals for the Sixth Circuit affirmed Defendant's conviction and sentence. ( Id. )
On November 17, 2012, Defendant filed this motion to vacate alleging that his attorneys provided ineffective assistance by:
1. Failing to object to the racial composition of the venire;
2. Misleading the jury in opening statement;
3. Failing to raise on appeal a prosecutorial misconduct claim for improper remarks during closing;
4. Failing to object to Defendant's sentence and the misuse of the guidelines;
5. Failing to move for a mistrial after the improper remarks by the prosecutor during closing; and
6. Failing to object to government witness Tina Hughey's impeachment testimony.
(ECF No. 1 at PageID 4-5, 7-8, 14.)
II. STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 2255(a),
[a] prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that 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, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
"A prisoner seeking relief under 28 U.S.C. § 2255 must allege either: (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." Short v. United States, 471 F.3d 686, 691 (6th Cir. 2006) (citation and internal quotation marks omitted).
A § 2255 motion is not a substitute for a direct appeal. See Bousley v. United States, 523 U.S. 614, 621 (1998). "[N]onconstitutional claims that could have been raised on appeal, but were not, may not be asserted in collateral proceedings." Stone v. Powell, 428 U.S. 465, 477 n.10 (1976). "Defendants must assert their claims in the ordinary course of trial and direct appeal." Grant v. United States, 72 F.3d 503, 506 (6th Cir. 1996). This rule is not absolute:
If claims have been forfeited by virtue of ineffective assistance of counsel, then relief under § 2255 would be available subject to the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In those rare instances where the defaulted claim is of an error not ordinarily cognizable or constitutional error, but the error is committed in a context that is so positively outrageous as to indicate a "complete miscarriage of justice, " it seems to us that what is really being asserted is a violation of due process.
Even constitutional claims that could have been raised on direct appeal, but were not, will be barred by procedural default unless the defendant demonstrates cause and prejudice sufficient to excuse his failure to raise these issues previously. El-Nobani v. United States, 287 F.3d 417, 420 (6th Cir. 2002) (withdrawal of guilty plea); Peveler v. United States, 269 F.3d 693, 698-99 (6th Cir. 2001) (new Supreme Court decision issued during pendency of direct appeal); Phillip v. United States, 229 F.3d 550, 552 (6th Cir. 2000) (trial errors). Alternatively, a defendant may obtain review of a procedurally defaulted claim by demonstrating his "actual innocence." Bousley, 523 U.S. at 622.
"[A] § 2255 motion may not be employed to relitigate an issue that was raised and considered on direct appeal absent highly exceptional circumstances, such as an intervening change in the law." Jones v. United States, 178 F.3d 790, 796 (6th Cir. 1999); see ...