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Buchanan v. United States

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

December 15, 2016




         Kayla R. Buchanan (“petitioner”) has filed a motion to vacate, set aside or correct her sentence pursuant to 28 U.S.C. § 2255, Doc. 346. She also has filed an accompanying motion for an evidentiary hearing, [Doc. 349]. For the reasons discussed in this memorandum and order, both motions are DENIED.

         I. Background

         Petitioner was charged in Count One of the indictment with conspiring with other defendants to distribute and to possess with the intent to distribute 28 or more grams of crack cocaine, and in 11 other counts with aiding and abetting the distribution of crack cocaine on various dates.[1] Attorney Robert Dickert of the Criminal Justice Act panel was appointed to represent petitioner.

         The government filed an Information To Establish Prior Convictions pursuant to 28 U.S.C. §851 which recited that petitioner had two prior felony drug convictions.[2] Petitioner signed a plea agreement with the government[3] in which she agreed to plead guilty to Count One, i.e., conspiring to distribute and to possess with the intent to distribute 28 or more grams of crack. In return, the government agreed to move that all other counts against petitioner be dismissed. The plea agreement explicitly noted that because of petitioner's prior felony drug convictions, the punishment she confronted was a mandatory minimum ten years of imprisonment up to a possibility of life, and at least eight years on supervised release.

         Petitioner also agreed that she would file no direct appeal of her conviction or sentence except for a sentence that was above the greater of the guideline range or the mandatory minimum sentence. She also waived her right to file a motion under 28 U.S.C. §2255, except that she retained the right to raise claims of ineffective assistance of counsel or prosecutorial misconduct not known to her at the time of entry of judgment.

         For its part, the government agreed that it would not oppose a two-level reduction in her offense level for acceptance of responsibility, and an additional one-level reduction if her resulting offense level was 16 or greater.

         Buchanan entered her guilty plea on April 4, 2011, and a presentence investigation report (“PSR”) was ordered, [Doc. 51]. The PSR noted that criminal activity involving at least 28 grams of cocaine resulted in a base offense level of 26 under the United States Sentencing Guidelines (“USSG”)[4] Because petitioner had two prior felony drug convictions, petitioner was classified as a career offender, which generated an offense level of 37.[5] After the three levels were subtracted for acceptance of responsibility, petitioner's adjusted offense level was 34.[6]

         Based on petitioner's criminal history, the probation office calculated that petitioner had accumulated a total of eight criminal history points, which normally would have resulted in a criminal history category of IV. However, because she was classified as a career offender, her criminal history category was enhanced to VI.[7]

         Based on a total offense level of 34 and a criminal history category of VI, petitioner's guideline range was 262 to 327 months of imprisonment.[8] At the sentencing hearing on November 15, 2011, the assistant United States Attorney recommended a three-level reduction in petitioner's offense level pursuant to USSG §5K1.1 in return for petitioner's extensive cooperation, which reduced her advisory guideline range to 188 to 235 months.[9] The Court agreed, sentencing petitioner to 188 months. It further ordered that the sentence was to run concurrently with two state sentences petitioner was then serving.[10]

         Petitioner appealed, arguing that her sentence was substantively unreasonable because that the district court relied on improper factors in assessing her sentence. The Court of Appeals disagreed, holding that petitioner failed to show that “the [District] Court based its decision on impermissible factors or gave unreasonable weight to any pertinent factor.”[11]

         On May 9, 2014, petitioner filed her motion under 28 U.S.C. § 2255.

         A. Petitioner's Claims

         Petitioner contends her attorney was ineffective in the following ways:

1. By failing to challenge the validity of her prior convictions or the § 851 notice;
2. By failing to request a one or more level reduction in criminal history;
3. By failing to object to the Court's double counting of petitioner's prior convictions;
4. By failing to investigate petitioner's prior convictions to learn that one of those convictions did not qualify as a predicate offense that would support an enhanced sentence; and
5. By failing to give petitioner good advice regarding her guilty plea.

         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, 7 ...

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