United States District Court, E.D. Tennessee, Knoxville
Jordan United States District Judge.
the Court is Petitioner's pro se motion to vacate, set
aside, or correct his sentence pursuant to 28 U.S.C. §
2255 [Doc. 1236]. The United States filed its response [Doc.
1255]. Petitioner did not file a reply.
following reasons, Petitioner's § 2255 motion [Doc.
1236] will be GRANTED IN PART and DENIED IN PART.
Petitioner's motion for § 2255 relief based upon his
claim of ineffective assistance of counsel will be DENIED.
Petitioner's motion for § 2255 relief based upon the
Supreme Court decision in Dorsey will be GRANTED.
July 2007, and continuing to approximately July 2009,
Petitioner, alongside numerous co-defendants, conspired to
distribute cocaine base, otherwise known as “crack,
” in the Eastern District of Tennessee and elsewhere
[Doc. 795 ¶ 5(a)]. In furtherance of the conspiracy,
Petitioner and co-defendant Jason Ware would use rental cars
to travel between Atlanta, Georgia and Morristown, Tennessee
to obtain and distribute cocaine base [Id. ¶
5(b)]. In October of 2007, a confidential informant working
on behalf of law enforcement arranged to purchase six ounces
of cocaine base and one ounce of cocaine from Petitioner for
$5000.00 [Id. ¶ 5(c)]. The transaction between
the informant and Petitioner was monitored and recorded by
law enforcement [Id.]. Shortly after the buy,
Petitioner and Ware left the residence together
[Id.]. The two were pulled over for a traffic
violation by an officer with the Tennessee Highway Patrol
[Id.]. The officer found that Petitioner had
approximately $6, 400 in cash in his possession and noted
that $5, 000.00 was folded and wrapped in a rubber band
November 14, 2007, in a similar episode, Petitioner and Ware
were pulled over for speeding while in route to deliver three
ounces of crack to a confidential informant in Morristown,
Tennessee [Id. ¶ 5(d)]. On approaching the
vehicle, officers smelled marijuana coming from inside the
car [Id.]. Petitioner gave consent to search the
vehicle and, during the subsequent search, officers located
95.6 grams of crack and 55.6 grams of a “white powder
non-controlled substance” in the glove compartment and
dashboard [Id.]. During the traffic stop, the
informant called to ask where Petitioner and Ware were
[Id.]. In a recorded conversation, Ware told the
informant that the two had been pulled over by the police but
that he would have another co-defendant, Johnny Marshall,
take care of him on the drug deal [Id. ¶ 5(e)].
Later that day, Marshall completed the drug deal with the
informant, exchanging three ounces of cocaine base for $2,
September 15, 2010, in a superseding indictment, a federal
grand jury in the Eastern District of Tennessee charged
Petitioner with conspiring to distribute and possess with
intent to distribute at least fifty grams of cocaine base
(“crack”), in violation of 21 U.S.C. §§
841(a)(1), (b)(1)(A), and 846 (Count One); conspiring to
distribute and possess with intent to distribute at least
five grams of cocaine, in violation of 21 U.S.C. §§
841(a)(1), (b)(1)(A), and 846 (Count Two); and with aiding
and abetting in the distribution of fifty grams or more of
cocaine base in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(A) and 18 U.S.C. § 2 (Count Three) [Doc. 743].
The United States Attorney's Office had previously filed
a Notice of Enhancement pursuant to 21 U.S.C. § 851
giving notice of the Government's intention to seek
increased punishment by reason of one or more of
Petitioner's prior convictions [Doc. 692].
October 5, 2010, Petitioner pleaded guilty to Count One
pursuant to a plea agreement with the United States [Doc.
774]. As part of the plea agreement, and in exchange for
dismissal of the remaining counts in the superseding
indictment, Petitioner admitted to “[conspiring] to
distribute and [possessing] with the intent to distribute 50
grams of a mixture or substance containing a detectable
amount of cocaine base (‘crack')”
[Id. ¶ 1(a)]. Petitioner acknowledged that the
penalty for pleading guilty to the offense was a
“mandatory minimum term of imprisonment of at least 20
years” [Id.]. Petitioner also acknowledged he
had “read the second superseding indictment, discussed
the charges and possible defenses with defense counsel, and
[understood] the crimes charged” [Id. ¶
4]. Additionally, Petitioner stated he was pleading guilty
because he was “in fact guilty” [Id.].
Petitioner agreed “not to file a direct appeal of [his]
conviction(s) or sentence except . . . [in the case of] a
sentence imposed above the sentencing guidelines range . . .
[as] determined by the district court” [Id.
¶ 12 (a)]. Petitioner also “voluntarily waive[d]
[his] right to file any motions or pleadings pursuant to 28
U.S.C. § 2255 or to collaterally attack [his]
conviction(s) and/or resulting sentence” except in
cases “of ineffective assistance of counsel or
prosecutorial misconduct not known to [Petitioner] by the
time of the entry of judgment” [Id. ¶ 12
(b)]. On October 21, 2010, the Court accepted
Petitioner's guilty plea [Doc. 794].
calculating the applicable guidelines range, the probation
officer found that the drug quantity to which Petitioner had
stipulated yielded a base offense level of 32 [PSR at ¶
22]. Petitioner had six criminal history points, enough to
establish a criminal history category of III [Id. at
¶ 42]; the corresponding Guidelines range was 151 to 188
months' imprisonment [Id. at ¶ 43]. Because
of the § 851 enhancement, Petitioner's guidelines
range was increased to the statutory mandatory minimum term
of 240 months' imprisonment [Id. at ¶ 57].
January 13, 2011, Petitioner attempted to withdraw his guilty
plea on the grounds that his plea was not voluntary [Docs.
848, 950]. The Court denied his motion, concluding that
Petitioner had not shown a fair and just reason for
withdrawing the plea [Doc. 964]. The Court subsequently
sentenced Petitioner to the minimum 240 months'
imprisonment [Doc. 1025]. On March 28, 2014, Petitioner filed
the present motion pursuant to 28 U.S.C. § 2255 [Doc.
TIMELINESS OF PETITION
the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), the one-year statute of limitations
applicable to collateral challenges under § 2255 runs
from the latest of: (1) “the date on which the judgment
of conviction becomes final;” (2) “the date on
which the impediment to making a motion created by
Governmental action in violation of the Constitution or laws
of the United States is removed, if the movant was prevented
from making a motion by such Governmental action;” (3)
“the date on which the right asserted was initially
recognized by the Supreme Court, if that right has been newly
recognized by the Supreme court and made retroactively
applicable to cases on collateral review;” or (4) the
date on which the facts supporting the claim or claims
presented could have been discovered through the exercise of
due diligence.” 28 U.S.C. § 2255(f). In the case
of a direct appeal, a petitioner's conviction becomes
final upon either denial of certiorari or expiration of the
ninety-day period in which to seek such review. Clay v.
United States, 537 U.S. 522, 525, 532 (2003). Thus,
Petitioner's conviction became final for purposes of the
statute of limitations on December 3, 2013 [Doc. 1211] and
his statutory limitations period expired one-year later on
December 3, 2014. The original petition [Doc. 1236] -filed on
March 28, 2014-falls safely within the permissible period for
requesting collateral relief.
STANDARD OF REVIEW
obtain relief under 28 U.S.C. § 2255, a petitioner must
demonstrate “(1) an error of constitutional magnitude;
(2) a sentence imposed outside the statutory limits; or (3)
an error of fact or law . . . so fundamental as to render the
entire proceeding invalid.” Short v. United
States, 471 F.3d 686, 691 (6th Cir. 2006) (quoting
Mallett v. United States, 334 F.3d 491, 496-97 (6th
Cir. 2003)). He “must clear a significantly higher
hurdle than would exist on direct appeal” and establish
a “fundamental defect in the proceedings which