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Cook v. United States

United States District Court, E.D. Tennessee

December 14, 2016

DAWN COOK, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER

          J. RONNIE GREER, UNITED STATES DISTRICT JUDGE

         Before 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][1], filed by petitioner Dawn Cook, (“petitioner” or “Cook”), on August 3, 2015, [2] 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.[3] 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.

         I. Procedural and Factual Background

         Petitioner 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].

         In the 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].

         Petitioner 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. 502].

         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 (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. 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).

         A 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 omitted).

         Second, 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).

         III. Analysis

         In her 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.

         A. Timeliness

         The United States first argues that petitioner's motion, filed July 29, ...


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