United States District Court, E.D. Tennessee
MEMORANDUM OPINION AND ORDER
RONNIE GREER, UNITED STATES DISTRICT JUDGE
the Court is a pleading styled “Amended Motion Under 28
U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence
By A Person In Federal Custody, ” [Doc.
437], filed by petitioner Dawn Cook,
(“petitioner” or “Cook”), on August
3, 2015,  as well as a second pleading styled
“Motion Under 28 U.S.C. § 2255 To Vacate, Set
Aside, Or Correct Sentence By A Person In Federal Custody,
” [Doc. 502], filed by petitioner on August 4,
2016. The United States has responded to
petitioner's original motion, [Doc. 478], and the Court
has determined that a government response to the August 4,
2016 motion is not necessary. The petitioner has also filed a
motion to expedite a ruling on her motion, [Doc. 491]. The
motion to expedite is GRANTED; however, the Court has
determined that the files and records in the case
conclusively establish that Cook is not entitled to relief
under § 2255 and her original motion, [Doc. 473], and
her second motion, [Doc. 502], will be DENIED and her §
2255 case DISMISSED.
Procedural and Factual Background
was one of 15 defendants indicted by a federal grand jury on
March 9, 2010. [Doc. 3]. She was charged in the one-count
indictment with conspiracy to distribute and possess with
intent to distribute oxycodone, a schedule II controlled
substance, in violation of 21 U.S.C. §§ 846,
841(a)(1) and 841(b)(1)(C). On July 22, 2010, Cook pled
guilty, pursuant to a negotiated plea agreement, [Doc. 165].
A presentence investigation report (“PSR”) was
ordered and sentencing was scheduled for December 10, 2010.
[Doc. 173]. After several continuances were granted on
petitioner's motion, a sentencing hearing was conducted
on July 15, 2011. [Doc. 396].
PSR, the probation officer calculated an advisory guideline
range of 188 to 275 months of imprisonment. Petitioner
objected to the failure of the probation officer to apply a
four-level decrease in the guideline range pursuant to USSG
§3B1.2(a) for what she perceived to be her minimal role
in the criminal activity. The Court declined to address the
merits of the objection because of petitioner's status as
a career offender and because the adjustment, even if
applied, would not change the guideline calculation.
[See generally Doc. 412, at 4-8]. The Court then
adopted the PSR. At sentencing, the Court granted the
government's motion for downward departure and departed
downward to a range of 130 to 163 months, then varied
downward from that range and imposed a term of imprisonment
of 110 months. [Doc. 412, at 83-87; Doc. 402].
filed a timely notice of appeal, [Doc. 403], and this
Court's judgment was affirmed by the Sixth Circuit on May
3, 2012, [Doc. 424]. In August, 2012, petitioner filed a
“Motion To Serve Notice” of her intent to file a
§ 2255, motion in light of the Fourth Circuit's
decision in United States v. Simmons, 649 F.3d 237
(4th Cir. 2011) (en banc), [Doc. 426]. She did not
file a § 2255 motion, however, until July 29, 2015, when
she filed the instant motion, [Doc. 473]. She then filed a
second purported § 2255 motion on August 4, 2016, [Doc.
Standard of Review
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 (6thCir.
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.
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
petitioner alleging ineffective assistance of counsel must
satisfy a two-part test. Strickland v. Washington,
466 U.S. 668, 687 (1987). See also, Huff v.
United States, 734 F.3d 600, 606 (6th Cir. 2013). First,
the Petitioner must establish, by identifying specific acts
or omissions, that counsel's performance was
deficient and that counsel did not provide “reasonably
effective assistance, ” as measured by
“prevailing professional norms.” Rompilla v.
Beard, 545 U.S. 374, 380 (2005). Counsel is presumed to
have provided effective assistance, and the Petitioner bears
the burden of showing otherwise. Mason v. Mitchell,
320 F.3d 604, 616-17 (6th Cir. 2003); see also
Strickland, 466 U.S. at 689 (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”) (internal citation
the Petitioner must demonstrate “a reasonable
probability that, but for [counsel's acts or omissions],
the result of the proceedings would have been
different.” Strickland, 466 U.S. at 694.
“An error by counsel, even if professionally
unreasonable, does not warrant setting aside the judgment of
a criminal proceeding if the error had no effect on the
judgment.” Id. at 691; see also Smith v.
Robbins, 528 U.S. 259, 285-86 (2000). The Court is not
required to analyze both prongs of the Strickland
test as to every claim. Strickland, 466 U.S. at 697.
Indeed, the Supreme Court recommended that, “[i]f it is
easier to dispose of an ineffectiveness claim on the ground
of lack of sufficient prejudice, . . . that course should be
followed.” Id.; accord United States v.
Hynes, 467 F.3d 951, 970 (6th Cir. 2006).
original § 2255 motion, [Doc. 473], petitioner raises
three grounds for relief which she states as follows:
1) GROUND ONE: Supporting facts: The judge in my case
informed me that I had the least amount of involvement and I
should have been charged in general sessions.
2) GROUND TWO: Supporting facts: I was given the plea
agreement the day before so I had no time to consider it.
3) GROUND THREE: Supporting facts: My prior convictions that
had nothing to do with my indictment were not brought before
a jury to decide their relevance.
[Doc. 473, at 4, 5, 7]. In her second motion, [Doc. 502],
petitioner appears to attempt to amend her pending motion
with an additional ground for relief, i.e., that her
guideline range should be reduced based on Amendment 794 to
the United States Sentencing Guidelines, effective November
1, 2015, for her minor role in the offense.
United States first argues that petitioner's motion,
filed July 29, ...