United States District Court, M.D. Tennessee, Columbia Division
WILLIAM J. HAYNES, JR. Senior United States District Judge.
Beau C. Vaughan, filed this action under 28 U.S.C. §
2255 seeking to set aside his conviction for conspiracy to
distribute or possess with intent to distribute 100 kilograms
or more of marijuana, for which he received a sentence of 300
months. Movant asserts claims for denial of effective
assistance of counsel prior to trial, at trial, at sentencing
and on appeal. Movant asserts that his status as a career
offender was improperly based upon an illegal state sentence
to which his trial counsel failed to object. The specifics of
Movant's ineffective assistance of counsel claims are:
(1) his counsel's failure to argue in his motion to
suppress that after the initial search of Movant's
vehicle failed to produce anything, Movant's continued
detention and "second search" of the vehicle were
unlawful; (2) his counsel's failure to argue that
information provided by the confidential informant
("CI") about Movant's drug trafficking was
insufficient to support probable cause to arrest Movant; (3)
his counsel's failure to prepare a theory of defense at
trial and to object to hearsay testimony that contradicted
counsel's theory that the government would be unable to
establish the amount of marijuana alleged in the indictment
or that a single conspiracy existed as to that amount; (4)
his counsel's failure to prepare for sentencing by
failing to discover and object that one of Movant's prior
convictions used to deem him a career offender was the result
of an illegal state sentence; (5) his counsel's failure
to provide discovery to Movant and to communicate with him
about the strengths and weaknesses of his case that deprived
Movant of the opportunity to engage in informed plea
negotiations and led to his rejection of the government's
plea offer under Rule 11(c)(1)(C) of the Federal Rules of
Criminal Procedure with a recommended sentence of twelve
years; (6) his counsel's failure to be prepared at trial
for testimony regarding "KY, " a customer of
Movant's, that was used to establish the amount of
marijuana in the charged offense; and (7) his counsel's
failure to interview and investigate for available
impeachment evidence against Brook Anderson, who testified
for the government. Movant also asserts that his sentence was
in excess of the maximum authorized by law and that his
sentence is subject to collateral attack where one of the
prior convictions used to sentence him as a career offender
was the result of an illegal state sentence that should be
August 11, 2011, a federal jury convicted Movant of
conspiracy to distribute or possess with intent to distribute
100 kilograms or more of marijuana in violation of 21 U.S.C.
§§ 841(a)(1) and 846. (Criminal No. 1:10-cr-00006,
Docket Entry No. 51). At the January 13, 2012 sentencing
hearing, the Court determined that Movant's total offense
level was 3 7, his criminal history category was VI and his
guideline range was three hundred sixty (360) months to life
imprisonment. Id., Docket Entry No. 77 at 1. The
Court sentenced Movant to three hundred (300) months
imprisonment and eight (8) years of supervised release.
Id., Docket Entry No. 76 at 2-3.
trial counsel timely appealed Movant's conviction that
was affirmed by the Sixth Circuit on January 16, 2013.
United States v. Vaughan, 512 F.App'x 459 (6th
Cir. 2013). On June 24, 2013, the Supreme Court denied
Movant's petition for certiorari on direct appeal.
(Criminal No. 1:10-cr-00006, Docket Entry No. 89).
evidentiary hearing in a Section 225 5 proceeding is not
required if the record conclusively establishes that a movant
is not entitled to relief. Arredondo v. United
States, 178F.3d778, 782 (6th Cir. 1999); Rule 8, Rules
Governing Section 2255 Proceedings for the United States
District Courts. Thus, an evidentiary hearing is not 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."' Arredondo, 178 F.3d at 782
(quoting Engelen v. United States, 68 F.3d 238, 240
(8th Cir. 1995)). Also, "[w]here . . . the judge
considering the § 2255 motion also conducted the trial,
the judge may rely on his or her recollections of the
Rule 8(a) of the Rules Governing Section 2255 Proceedings,
the Court must consider the "answer, any transcripts and
records of prior proceedings, and any materials submitted
under Rule 7 to determine whether an evidentiary hearing is
warranted." Such materials may include "letters
predating the filing of the motion, documents, exhibits, and
answers under oath to written interrogatories propounded by
the judge, " as well as affidavits. Rule 7(b), Rules
Gov'g § 2255 Proceedings. Where an evidentiary
hearing is appropriate, "the hearing conducted by the
court, .. . must be tailored to the specific needs of the
case, with due regard for the origin and complexity of the
issues of fact and the thoroughness of the record on which
(or perhaps, against which) the section 2255 motion is
made." Smith v. United States. 348 F.3d 345,
550 (6th Cir. 2003) (quoting United States v.
Todaro, 982 F.2d 1025, 1030 (6th Cir. 1993)). Upon
consideration of Movant's filings, Respondent's
response, and the underlying factual record, the Court finds,
as discussed infra, that an evidentiary hearing is
required on Movant's claim about his counsel's
disclosure of plea offers.
relief under § 2255, a prisoner must show that the
sentence was imposed in violation of the Constitution or laws
of the United States, that the Court was without jurisdiction
to impose such sentence, that the sentence was in excess of
the maximum authorized by law, or that the sentence is
otherwise subject to collateral attack. 28 U.S.C. §
2255. To prevail on a § 2255 motion asserting
constitutional error, a movant "must establish an error
of constitutional magnitude which had a substantial and
injurious effect or influence on the proceedings."
Watson v. United States, 165 F.3d 486, 488 (6th Cir.
1999) (citing Brecht v. Abrahamson, 507 U.S. 619,
637-638 (1993)). To prevail on a § 2255 motion asserting
non-constitutional error, the movant must show a
"fundamental defect which inherently results in a
complete miscarriage of justice, or an error so egregious
that it amounts to a violation of due process."
Id. (quoting United States v. Ferguson, 918
F.2d 627, 630 (6th Cir. 1990) citing Hill v. United
States. 368 U.S. 424, 428 (1962) (internal quotation
Sixth Amendment guarantees criminal defendants the right to
the effective assistance of counsel during their criminal
proceedings, Missouri v. Frye, ___U.S. ___, 132
S.Ct. 1399, 1404 (2012), and this right applies to "all
'critical' stages of the criminal proceedings."
Montejo v. Louisiana, 556 U.S. 778, 786 (2009)
(citation omitted). To establish ineffective assistance of
counsel, Movant must demonstrate that his trial counsel
performed deficiently and that counsel's performance
resulted in prejudice. Strickland v. Washington, 466
U.S. 668, 687 (1984). As the Supreme Court has explained:
First, the defendant must show that counsel's performance
was deficient. This requires showing that counsel made errors
so serious that counsel was not functioning as the
"counsel" guaranteed the defendant by the Sixth
Second, the defendant must show that the deficient
performance prejudiced the defense. This requires showing
that counsel's errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.
Id. As to the "performance" inquiry,
"[t]he proper measure of attorney performance remains
simply reasonableness under prevailing professional
norms." Id. at 688. Under Strickland,
"counsel has a duty to make reasonable investigations or
to make a reasonable decision that makes particular
investigations unnecessary. In any ineffectiveness case, a
particular decision not to investigate must be directly
assessed for reasonableness in all the circumstances,
applying a heavy measure of deference to counsel's
judgments." Id. at 691.
Strickland, the Supreme Court cautioned that
"[j]udicial scrutiny of counsel's performance must
be highly deferential, " and must avoid the
"second-guess[ing of] counsel's assistance . . . [,
as] it is all too easy for a court, examining counsel's
defense after it has proved unsuccessful, to conclude that a
particular act or omission of counsel was unreasonable."
Id. at 689. To avoid "the distorting effects of
hindsight, " a reviewing "court must indulge a
strong presumption that counsel's conduct falls within
the wide range of reasonable professional assistance; that
is, the defendant must overcome the presumption that... the
challenged action' might be considered sound trial
strategy.'" Id. (citation omitted).
establish that counsel's performance was deficient under
Strickland, a movant "must identify acts that
were 'outside the wide range of professionally competent
assistance.'" Smith v. United States.
348F.3d 545, 551 (6th Cir. 2003) (quoting
Strickland. 466 U.S. at 690). In evaluating whether
a movant has received counsel that falls short of what the
Sixth Amendment guarantees to a defendant, "[i]t will
generally be appropriate for a reviewing court to assess
counsel's overall performance throughout the case in
order to determine whether the 'identified acts or
omissions' overcome the presumption that a counsel
rendered reasonable professional assistance."
Kimmelman v. Morrison. 477 U.S. 365, 386 (1986)
(quoting Strickland. 466 U.S. at 690).
evaluating the prejudice prong, courts must be mindful that
"[i]t is not enough for the defendant to show that the
errors had some conceivable effect on the outcome of the
proceeding." 466 U.S. at 693. Indeed, "[v]irtually
every act or omission of counsel would meet that test, and
not every error that conceivably could have influenced the
outcome undermines the reliability of the result of the
proceeding." Id. (citation omitted). Rather, 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." Id. at 694. '"A reasonable
probability is a probability sufficient to undermine
confidence in the outcome.'" Williams v.
Tavlor, 529 U.S. 362, 391 (2000) (quoting
Strickland, 466 U.S. at 694).
asserts that his counsel provided ineffective assistance of
counsel by failing to raise the distinction between the first
and second search of the Defendant's vehicle. Citing
United States v. Fields, No. 3:09cr029(1) & (2),
2010 WL 1667766 (S.D. Ohio April 23, 2010), Movant asserts
that counsel failed to recognize and argue that after the
initial search of Movant's vehicle failed to produce
anything illegal the continued detention of Movant and second
search of his vehicle was unlawful.
The facts established at the suppression hearing are set
forth as follows:
At the suppression hearing, Trooper Michael Kilpatrick
testified that Agent Darryl Richardson of the Tennessee
Bureau of Investigation informed him that Vaughan would be
delivering a quantity of marijuana to an O'Charley's
parking lot and directed him to develop probable cause to
stop Vaughan's vehicle. Trooper Kilpatrick saw the
vehicle approaching the O'Charley's and observed that
Vaughan was not wearing a seatbelt. Trooper Kilpatrick turned
into the parking lot behind Vaughan's vehicle, activated
his lights, and initiated the stop. When he approached the
driver's side of the vehicle, Trooper Kilpatrick noticed
that Vaughan's eyes were bloodshot and smelled the odor
of burnt marijuana coming from the vehicle. Shortly after
Trooper Kilpatrick stopped Vaughan's vehicle, Trooper
Wayne Dunkleman arrived with his drug-detection dog. Trooper
Dunkleman also smelled the odor of burnt marijuana coming
from Vaughan's vehicle.
Trooper Kilpatrick asked Vaughan to get out of the vehicle
and issued him a citation for not wearing his seatbelt and
not having proof of insurance. Vaughan denied consent to
search his vehicle ....
Vaughan. 512 F.App'x at 460.
Kilpatrick then informed Vaughan that there would be a canine
search of Vaughan's vehicle and inquired if narcotics
were in the vehicle. (Criminal No. 1:10-cr-00006, Docket
Entry No. 29, Memorandum at 2). Vaughan stated that he had
approximately $15, 000 in the vehicle, but no drugs.
Id. Within approximately ten minutes of the traffic
stop, Rock, a certified narcotics detection canine, alerted
to the driver's side door of Vaughan's vehicle.
Id. at 3. Trooper Kilpatrick then placed Vaughan in
the back of his patrol car while the officers searched his
Dunkleman searched the inside of Vaughant's vehicle,
recovering only cash. Id. Rock then conducted a
canine search of the back exterior of the truck and alerted
to the toolbox in the back of Vaughan's track.
Id.; Docket Entiy No. 25 at 20-21, 59-60. Within a
box inside the toolbox, troopers recovered additional cash,
dryer sheets, trash bags, and some marijuana residue.
Id. at 3. The troopers searched Defendant's
vehicle again and recovered a suspected drug ledger, airline
tickets to Dallas, Texas, and a rental car agreement from
McAllen, Texas. Id. at 4.
summarizing the facts in his motion to suppress, Movant's
counsel stated, in part, that:
[Kilpatrick] places Mr. Vaughan in the back of his patrol car
- with no way for Vaughan to exit-at 10:28:18. Shortly
thereafter, at 10:28:50, Dunkelman concludes his search of
Vaughan's truck and announces the "truck's
pretty clean" except for the cash in the door panel,
previously described by Mr. Vaughan.
Kilpatrick then instructs Dunkelman to run his "drag
dog" on the toolbox in the bed of Vaughan's pickup.
At 10:30:00, the dog purportedly "alerts" on the
toolbox. The troopers obtain the keys to the toolbox from Mr.
Vaughan, who is still locked up in the back of Trooper
Kilpatrick's car (Vaughan is not allowed out of the back
of the car until 11:45). The search of the toolbox reveals
more cash in a red shoebox, at 10:31:45.
Trooper Kilpatrick then begins a second search of the
truck's interior at 10:33:08. He begins examining papers
and a ledger found in Mr. Vaughan's truck. He concludes
the ledger is a "drug ledger" and informs Agent
Richardson, in a phone call at 10:36, that "there's
no dope... but we're gonna keep him here."
Id., Docket Entry No. 14 at 3-4 (emphasis added).
Movant's counsel argued:
The search of Mr. Vaughan's vehicle, while arguably
supported by the troopers' purported smelling an odor of
marijuana and the drug dog's supposed "hit"
(assuming arguendo the Court believes those two events
actually occurred), still did not include the troopers'
seizure and reading of Mr. Vaughan's journal, logbook, or
other documents once their search of the truck for drugs
Id. at 6 (emphasis added).
supplemental memorandum, Movant's counsel argued that:
a. Trooper Dunkelman searched the truck and found nothing but
Mr. Vaughan's money - ...