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Jones v. United States

United States District Court, E.D. Tennessee, Greeneville

December 5, 2016

HEATHER ALANE JONES, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM AND ORDER

          J. RONNIE GREER UNITED STATES DISTRICT JUDGE

         Heather Alane Jones, (“petitioner”), has filed a motion to vacate, set aside, or correct her sentence pursuant to 28 U.S.C. § 2255 [Doc. 528]. For the reasons discussed in this memorandum and order, her motion is DENIED.

         I. Background

         Petitioner was one of 21 defendants in a 29-count indictment involving the manufacture and distribution of methamphetamine. Petitioner was named in Count One with conspiring to manufacture 50 or more grams of methamphetamine; in Count Two with conspiring to distribute and to possess with the intent to distribute 50 or more grams of methamphetamine; in Count Eleven with possessing the chemicals, equipment and materials used to manufacture methamphetamine; and in Count Twenty-Nine (along with her husband and co-defendant, Charles Allen Jones, Jr.), with maintaining a residence for the purpose of manufacturing methamphetamine.[1] Attorney Joseph Rasnick, a member of the Criminal Justice Act panel of this Court, was appointed to represent to represent petitioner.[2]

         On January 24, 2013, petitioner signed a plea agreement with the United States in which agreed to plead guilty to the lesser included offense of Count One, viz., conspiring to manufacture five grams but less than 50 grams of methamphetamine. The other three counts were to be dismissed upon entry of plaintiff's guilty plea.[3] Petitioner also agreed that she would not file a direct appeal of her conviction or sentence (except for a sentence imposed above the greater of the guideline range or mandatory minimum sentence), and that she waived her right to file a § 2255 motion except for a claim of ineffective assistance of counsel or prosecutorial misconduct unknown to her at the time of entry of judgment.[4]

         For its part, the United States agreed that it would not oppose a two-level reduction for acceptance of responsibility under § 3E1.1(a) of the Sentencing Guidelines. Further, the government agreed that if petitioner's offense level was 16 or greater, it would move for an additional one-level decrease.[5]

         The petitioner pled guilty on February 13, 2013, and a presentence report (“PSR”) was ordered. The United States Probation Office reported that petitioner had a total offense level of 29; a criminal history category of II; and a resulting guideline range of 97 to 121 months.[6]Petitioner moved for a downward variance of her sentence to 60 months, the statutory minimum for the offense to which she pleaded guilty.[7] The Court ultimately sentenced petitioner to the bottom of her guideline range, 97 months.[8]

         On June 20, 2014, petitioner filed her motion under 28 U.S.C. § 2255, which makes two claims: (1) That her attorney was ineffective for failing to obtain an independent drug test of her children in order to combat the six-point increase under USSG § 2D1.1(b)(13)(D) for child endangerment, claiming that a drug test procured by a “family member” showed there were no drugs (i.e., methamphetamine) present in her children's systems; and (2) that her attorney was ineffective for failing to demand a jury trial regarding facts that increased the mandatory minimum sentence ultimately imposed upon her.

         II. Standard of Review

         This 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.

         When a 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).

         To 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). In 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 she 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 her 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, she 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, she must show that she was prejudiced by the attorney's deficient representation:

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 counsel's challenged conduct on the facts of the particular case, viewed as 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.” H ...

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