United States District Court, W.D. Tennessee, Western Division
ORDER DIRECTING CLERK TO UPDATE DOCKET WITH INMATE'S CURRENT ADDRESS ORDER DENYING MOTION UNDER 28 U.S.C. ORDER DENYING CERTIFICATE OF APPEALABILITY AND ORDER CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH
JON PHIPPS McCALLA, District Judge.
On June 7, 2012, Defendant Michael Bracey, Bureau of Prisons registration number 00073-193, an inmate at the Federal Medical Center in Butner, North Carolina, filed a motion pursuant to 28 U.S.C. § 2255 ("§ 2255 motion"). (ECF No. 1.) On May 28, 2013, the Court directed the United States to respond to the motion to vacate. (ECF No. 3.) On August 14, 2013, the Court entered a second order directing the United States to respond. (ECF No. 6.) On December 13, 2013, the United States filed an answer contending that Defendant's motion is without merit. (ECF No. 18.) On December 16, 2013, the United States filed an amended answer supported by exhibits. (ECF Nos. 20 & 21.). For the reasons that follow, Bracey's § 2255 motion is DENIED, and a certificate of appealability is DENIED. The Court also finds that an appeal would not be taken in good faith. Leave to appeal in forma pauperis is DENIED.6>
I. BACKGROUND TO MOTION
On July 27, 2010, a federal grand jury returned an indictment charging Bracey with one count of possession of a firearm after a felony conviction, in violation of 18 U.S.C. § 922(g)(1) (Count One) and one count of false and fictitious written statement regarding lawful acquisition of a firearm, in violation of 18 U.S.C. § 922(a)(6) and § 924(a)(2) (Count Two). (Criminal Case ("Cr.") ECF Nos. 1-3.) On September 28, 2010, Bracey waived his right to a jury trial and pled guilty to Counts One and Two pursuant to a written plea agreement. (Cr. ECF Nos. 20, 22-23.)
The full and complete plea is as follows:
The following constitutes the Plea Agreement reached between the United States, represented by Edward L. Stanton, Ill. United States Attorney for the Western District of Tennessee, and R. MATTHEW PRICE, Assistant United States Attorney, the defendant, MICHAEL BRACEY, a/k/a Michael Bracy, Michael Brecey, Timothy Estes, and Michael Edward Bracey (hereinafter only referred to as MICHAEL BRACEY), represented by DANIEL JOHNSON, defense counsel.
Michael Bracey agrees that he will enter a voluntary plea of guilty to counts One and Two of the indictment. Michael Bracey agrees that he is entering a voluntary plea of guilty to counts One and Two of the indictment because he is, in fact, guilty of the offenses charged in these counts.
Given the facts in the possession of the United States at the time of the writing of this agreement, the United States does not oppose Michael Bracey receiving acceptance of responsibility credit pursuant to U.S.S.G. § 3E1.1. Michael Bracey understands that if the United States receives information between the signing of this agreement and the time of the sentencing that he has previously engaged in, or if he engages in the future, in conduct inconsistent with the acceptance of responsibility, including, but not limited to, participation of any additional criminal activities between now and the time of sentencing, this position could change. Further, Michael Bracey understands that whether or not acceptance of responsibility credit pursuant to § 3E1.1 is granted is a matter to be determined by the District Court. Failure of the District Court to grant acceptance of responsibility credit is not a basis for Michael Bracey to withdraw his guilty plea.
Michael Bracey has indicated his desire to cooperate with the United States in the investigation and prosecution of others. The United States agrees to consider making a motion pursuant to § 5K1.1 of the United States Sentencing Guidelines on behalf of Michael Bracey at the time of his sentencing. Michael Bracey understands that the only promise being made is to consider a motion pursuant to § 5K1.1. This is not a promise to make such a motion. The decision whether to make a motion pursuant to § 5K1.1 is within the sole discretion of the United States. The decision whether or not to make such a motion will be made only after it has been determined that Michael Bracey has given complete and truthful cooperation and/or testimony in the matters under investigation and prosecution. Michael Bracey understands that if his testimony is anything but complete, truthful, and candid, the United States will make the sentencing court aware of this, will seek enhancement of his sentence based upon any lack of candor or truthfulness, and further will prosecute Michael Bracey for any crimes that might be provable. Michael Bracey also understands that any new criminal activity would be another reason not to make such a motion.
Michael Bracey agrees and understands that any statement made in the course of the plea colloquy may be used against him in any criminal prosecution. Michael Bracey knowingly, intelligently and voluntarily waives any objection based on Fed.R.Evid. 410.
Michael Bracey agrees and understands that a $200 special assessment is due to the United States District Court Clerk's Office at the time of sentencing.
Michael Bracey understands that 18 U.S.C. § 3742 gives him the right to appeal the sentence imposed by this Court. Acknowledging this, he knowingly and voluntarily waives his right to appeal any sentence imposed by the Court and the manner in which the sentence is determined, so long as the sentence is within the statutory maximum as specified by the Court. This waiver is made in exchange for the concessions made by the United States in this Plea Agreement. The waiver in this paragraph does not apply to claims relating to prosecutorial misconduct and ineffective assistance of counsel.
Michael Bracey agrees that this Plea Agreement constitutes the entire agreement between himself and the United States and that no threats have been made to induce him to plead guilty. By signing this document, Michael Bracey acknowledges that he has read this agreement, has discussed it with his attorney, understands it, and is satisfied with his counsel's representation.
(Cr. ECF No. 23 at PageID 30-33.)
The United States Probation and Pretrial Services prepared a presentence investigation report ("PSR"), which recommended a total offense level of 30 for Counts One and Two, and criminal history category of VI. (PSR at 27.) The PSR calculated Bracey's advisory guideline range at 168 to 210 months of imprisonment because he was an armed career criminal pursuant to United States Sentencing Guidelines ("U.S.S.G.") § 4B1.4. (PSR at 27.) Bracey was also subject to a mandatory minimum sentence of fifteen years (one hundred eighty months) on Count One under 18 U.S.C. § 924(e)(1). (PSR at 27.) Defense counsel filed the following objections to the PSR:
1. Defendant objects to the references in paragraph 4 of the Report to a Clerke.32 caliber revolver. Defendant denies the ownership or possession of said weapon.
Defendant objects to paragraph 14 of the Report. Defendant acknowledges that this objection will have no effect on the ultimate Guideline range, regardless it is Defendant's position that the only firearm he is responsible for was the.22 caliber revolver in the indictment to which Defendant pled, and which did not have an obliterated serial number.
Additionally Defendant asks the Court under U.S.S.G. § 5G1.3(c) to run the sentence in this case concurrently with his undercharged state term.
Defendant's position is that there are numerous § 3553 factors that the court should consider, including his age and his extensive efforts to co-operate with the Government.
Defendant submits that the Court in considering the provisions of 18 U.S.C. § 3553 should be sentenced to the low end of or below the appropriate Guideline range.
(Cr. ECF No. 39 at 1-2.)
At Bracey's request, the sentencing hearing was postponed on three occasions to allow more time for him to earn a motion pursuant to § 5K1.1. (Cr. ECF Nos. 24-25, 28-29, 32-33.) The Court held a sentencing hearing on June 6, 2011. (Cr. ECF No. 40.) During the sentencing hearing, the Court granted the United States' motion for Bracey to receive credit for acceptance of responsibility (Cr. ECF No. 46 at PageID 99-100), granted Bracey's request to strike the four-point enhancement for possession of a firearm with an altered or obliterated serial number ( id. at PageID 100-02), considered Bracey's request to run his federal sentence concurrent to his undischarged state sentence ( id. at PageID 126), and considered Bracey's efforts to assist the United States and the § 3553 factors ( id. at PageID 106-10). The Court entered a judgment sentencing Bracey to imprisonment for one hundred eighty (180) months on Count One and one hundred twenty months on Count Two, to be served concurrently with each other and Shelby County Criminal Court case 10-06074, along with a three-year term of supervised release. (Cr. ECF Nos. 40, 42.) Bracey did not appeal.
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 defendant has the burden of proving that he is entitled to relief by a preponderance of the evidence. Pough v. United States, 442 F.3d 959, 964 (6th Cir. 2006).
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, however, 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.
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 those 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 also DuPont v. United States, 76 F.3d 108, 110 (6th Cir. 1996) (same).
After a § 2255 motion is filed, it is reviewed by the Court and, "[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion...." Rule 4(b), Rules Governing Section 2255 Proceedings for the United States District Courts ("Section 2255 Rules"). "If the motion is not dismissed, the judge must order the United States attorney to file an answer, motion, or other response within a fixed time, or to take other action the judge may order." Id. The movant is entitled to reply to the Government's response. Rule 5(d), Section 2255 Rules. The Court may also direct the parties to provide additional information relating to the motion. Rule 7, Section 2255 Rules.
"In reviewing a § 2255 motion in which a factual dispute arises, the habeas court must hold an evidentiary hearing to determine the truth of the petitioner's claims.'" Valentine v. United States, 488 F.3d 325, 333 (6th Cir. 2007) (quoting Turner v. United States, 183 F.3d 474, 477 (6th Cir. 1999)). "[N]o hearing is required if the petitioner's allegations cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact.'" Id. (quoting Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999)). Where the judge considering the § 2255 motion also presided over the criminal case, the judge may rely on his or her recollection of the prior case. Blanton v. United States, 94 F.3d 227, 235 (6th Cir. 1996); see also Blackledge v. Allison, 431 U.S. 63, 74 n.4 (1977) ("[A] motion under § 2255 is ...