United States District Court, E.D. Tennessee, Greeneville
MEMORANDUM AND ORDER
RONNIE GREER UNITED STATES DISTRICT JUDGE.
a jury trial, Darrell Tipton (“petitioner”) was
found guilty of being a convicted felon in possession of two
firearms and ammunition. He was sentenced to 293 months
imprisonment which is to be served consecutively to a
124-year state sentence. He has filed a motion pursuant to 28
U.S.C. § 2255 to vacate, set aside, or correct his
sentence. [Doc. 95]. For reasons discussed in this memorandum
and order, his motion is DENIED.
October 26, 2005, there was an outstanding warrant for
petitioner's arrest issued by a Missouri court. There
also was a federal warrant for petitioner's arrest for
unlawful flight from the state of Missouri to avoid
prosecution. On October 26, 2005, the Unicoi County
sheriff's office had information that petitioner was at
his mother's house in Erwin. Petitioner was considered to
be armed and dangerous. In an effort to minimize the
possibility of a deadly confrontation and the concomitant
risk to innocent people, officers surrounded his mother's
house, and then prevailed upon a family member to call the
house to tell defendant that officers were on their way to
arrest him. Soon after the phone call was made, petitioner
and a young man, later learned to be Abel Lopez,
petitioner's nephew, ran from the house. Petitioner was
seen carrying a rifle and a backpack.
the officers' shouts to stop and surrender, petitioner
and Lopez sped away in a car driven by Lopez. After a high
speed chase of some four miles, the car was
stopped.Petitioner was immediately arrested on
account of the federal and Missouri warrants. A search of
petitioner's person pursuant to his arrest revealed .22
caliber ammunition in his pants pocket.Lopez also was
arrested, but the charges were later dismissed when the
officers testified before the state judge that Lopez was an
unwilling participant in petitioner's
the vehicle was towed to the sheriff's office, an
inventory search was conducted. The rifle, a .22 caliber, was
lying in plain view on the rear floorboard. The backpack also
was in the rear seat. It was searched and in it was a .22
caliber handgun. Those firearms and the ammunition led to
his indictment in this court on December 13, 2005.
his indictment in this court, petitioner had been extradited
to the state of Missouri to stand trial on the charges
pending in that state. In November 2008, he was convicted in
a Missouri court of two counts of First Degree Assault, two
counts of Armed Criminal Action, and Unlawful Use of a
Weapon, and in May 2009, he was sentenced to a total of 124
consecutive years of imprisonment.
26, 2009, this court issued the writ of Habeas Corpus Ad
Prosequendum to secure petitioner's presence before this
court to stand trial on the 2005 indictment. His initial
appearance and arraignment occurred on August 28,
Tim Moore and Nikki Pierce of Federal Defender Services were
appointed to represent petitioner. He went to trial on April
6, 2010, and was convicted on April 7. His Guideline Range
235 to 293 months. This court sentenced him to 293
appealed to the Sixth Circuit Court of Appeals, raising three
issues: (1) that the delay between his indictment on December
13, 2005 and his initial appearance on August 28, 2009
violated his Sixth Amendment right to a speedy trial; (2)
that he was entitled to a new trial because the prosecutor
during a sidebar conference referred to “murder
warrants” for petitioner's arrest issued by the
states of Florida and Missouri which was overheard by the
jury; and (3) that this Court abused its discretion by
ordering his sentence for the federal conviction to be served
consecutively to the sentence imposed by the Missouri court.
The Court of Appeals rejected each of his arguments and
affirmed his conviction and sentence.
STANDARD OF REVIEW FOR §2255 CLAIMS
Court must vacate and set aside petitioner's sentence if
it finds that “the judgment was rendered without
jurisdiction, or that the sentence imposed was not authorized
by law or otherwise open to collateral attack, or that there
has been such a denial or infringement of the constitutional
rights of the prisoner as to render the judgment vulnerable
to collateral attack, . . .” 28 U.S.C. § 2255.
Under Rule 4 of the Governing Rules, the Court is to consider
initially whether the face of the motion itself, together
with the annexed exhibits and prior proceedings in the case,
reveal the movant is not entitled to relief. If it plainly
appears the movant is not entitled to relief, the court may
summarily dismiss the § 2255 motion under Rule 4.
defendant files a § 2255 motion, he must set forth facts
which entitle him to relief. Green v. Wingo, 454
F.2d 52, 53 (6th Cir. 1972); O'Malley v. United
States, 285 F.2d 733, 735 (6th Cir. 1961).
“Conclusions, not substantiated by allegations of fact
with some probability of verity, are not sufficient to
warrant a hearing.” O'Malley, 285 F.2d at
735 (citations omitted). A motion that merely states general
conclusions of law without substantiating allegations with
facts is without legal merit. Loum v. Underwood, 262
F.2d 866, 867 (6th Cir. 1959); United States v.
Johnson, 940 F.Supp. 167, 171 (W.D. Tenn. 1996).
warrant relief under 28 U.S.C. § 2255 because of
constitutional error, the error must be one of constitutional
magnitude which had a substantial and injurious effect or
influence on the proceedings. Brecht v. Abrahamson,
507 U.S. 619, 637 (1993) (citation omitted) (§ 2254
case); Clemmons v. Sowders, 34 F.3d 352, 354 (6th
Cir. 1994). See also United States v. Cappas, 29
F.3d 1187, 1193 (7th Cir. 1994) (applying Brecht to a §
2255 motion). If the sentencing court lacked jurisdiction,
then the conviction is void and must be set aside.
Williams v. United States, 582 F.2d 1039, 1041 (6th
Cir.), cert. denied, 439 U.S. 988 (1978). To warrant relief
for a non-constitutional error, petitioner must show a
fundamental defect in the proceeding that resulted in a
complete miscarriage of justice or an egregious error
inconsistent with the rudimentary demands of fair procedure.
Reed v. Farley, 512 U.S. 339, 354 (1994); Grant
v. United States, 72 F.3d 503, 506 (6th Cir.), cert.
denied, 517 U.S. 1200 (1996).
order to obtain collateral relief under § 2255, a
petitioner must clear a significantly higher hurdle than
would exist on direct appeal. United States v.
Frady, 456 U.S. 152 (1982). When a § 2255
Petitioner claims he was denied his sixth amendment right to
effective assistance of counsel, it is noted that an attorney
is presumed to have provided effective assistance, and the
Petitioner bears the burden of showing that the attorney did
not, Mason v. Mitchell, 320 F.3d 604, 616-17 (6th
Cir. 2003). Petitioner must prove that specific acts or
omissions by his attorney were deficient and that the
attorney failed to provide “reasonably effective
assistance, ” Strickland v. Washington, 466
U.S. 668, 687 (1987), which is measured by “prevailing
professional norms, ” Rompilla v. Beard, 545
U.S. 374, 380 (2005). If Petitioner crosses this evidentiary
hurdle, he must then show “a reasonable probability
that, but for [the attorney's acts or omissions], the
result of the proceedings would have been different.”
Strickland, 466 U.S. at 694. In other words, he must
show that he was prejudiced by the attorney's deficient
To succeed on an ineffective assistance claim, a defendant
must show that counsel's deficient performance prejudiced
the defense. Strickland v. Washington, 466 U.S. 668, 687, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984). [A court's ] review of
counsel's performance is “highly
deferential.” Id. at 689, 104 S.Ct. 2052. [The
court must] “judge the reasonableness of of the time of
counsel's conduct.” Id. at 690, 104 S.Ct.
2052. The defendant “must identify the acts or
omissions of counsel that are alleged not to have been the
result of reasonable professional judgment.”
Id. To establish “prejudice, ” a
“defendant must show that there is a reasonable
probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been
different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.”
Id. at 694, 104 S.Ct. 2052. “The likelihood of
a different result must be substantial, not just
conceivable.” Harrington v. Richter, 562 U.S. ___, 131
S.Ct. 770, 792, 178 L.Ed.2d 624 (2011). And, “[i]f it
is easier to dispose of an ineffectiveness claim on the
ground of lack of sufficient prejudice ... that course should
be followed.” Strickland, 466 U.S. at 697, 104 S.Ct.
Docherty v. United States, 536 Fed.Appx. 547, 551
(6th. Cir. 2013).
Ground One: Evidence was seized pursuant to an
are two independent but equally valid reasons why this claim
is meritless. First, it has been procedurally defaulted.
Petitioner could have raised this issue in his direct appeal,
but he did not. He cannot raise an issue in a collateral
attack that could have been raised in a direct appeal,
Sullivan v. United States, 587 Fed. App'x 935,
942 (6th Cir. 2014). A petitioner can overcome the bar of
procedural default only if he can demonstrate either
“cause and actual prejudice, or that he is actually
innocent, ” Bousley v. United States, 523 U.S.
614, 622 (1998). Petitioner claims actual innocence in his
Reply brief. Because he raises a number of claims in
that reply, it will be discussed separately in Section IV of
this memorandum. Suffice it to say at this point that his
claim of actual innocence fails.
petitioner's argument that the evidence-- a .22 caliber
rifle, a .22 caliber handgun, and .22 caliber ammunition--
was unconstitutionally seized is simply wrong as a matter of
law. After the car in which petitioner fled had been stopped
and petitioner arrested, the car was taken to the Unicoi
County sheriff's office where an inventory search was
performed. In plain view in the back floorboard and seat were
the rifle and backpack. The officers were aware petitioner
was a convicted felon. As such, they were aware he could not
lawfully possess a firearm. The rifle was therefore illegal
contraband and in plain view. Contraband in plain view may be
seized without a warrant if the officer immediately
recognizes its incriminating nature, United States v.
Bradshaw, 102 F.3d. 204, 210-11 (6th Cir.
1996). Additionally, petitioner had no standing to complain
of the search of the car since he did not own it, and he was
not driving.See, Rakas v. Illinois, 439 U.S.
128 (1978). The warrantless seizure of the rifle was
was seen carrying the rifle in one hand and the backpack in
the other as he bolted from his mother's
house. At the very least, since petitioner had
been arrested and the sheriff's department thus
responsible for the protection of his property, an inventory
search of the bag's contents was appropriate, United
States v. McCoy, 102 F.3d. 239, 240 (6th Cir.
the ammunition was found in petitioner's pants'
pocket after a pat-down search of his person following his
removal from the car and his arrest. A warrantless search
incident to a lawful arrest is ...