United States District Court, M.D. Tennessee, Nashville Division
WILLIAM J. HAYNES JR. Senior United States District Judge
Devonte Lunsford, filed this pro se action under 28 U.S.C.
§ 2255, seeking to vacate, set aside, or correct
sentence for armed bank robbery and brandishing a firearm
during and in relation to a crime of violence, for which he
received an effective sentence of 120 months. Movant asserts
(1) that his attorney was ineffective because he failed to
challenge the affidavit in support of the criminal complaint,
he failed to request discovery, and he failed to file a
motion to suppress evidence; (2) that because a jury did not
find that Movant brandished the firearm his sentence could
not be enhanced to eighty-four (84) months in light of
Alleyne v. United States, 133 S.Ct. 2151 (2013); and
(3) that under Alleyne he is actually innocent of
the brandishing count because he was not charged with
brandishing in the indictment and that, as a result, he
should have been sentenced to 60 months for possessing,
carrying or using a firearm under 18 U.S.C. §
924(c)(1)(A) instead of sentenced to the mandatory 84 months
for brandishing under 18 U.S.C. § 924(c)(1)(A)(ii).
Court ordered Respondent to respond, (Docket Entry No. 3), to
which Respondent filed a motion to dismiss (Docket Entry No.
11), asserting (1) that Movant's ineffective assistance
of counsel claims are conclusory and that the record shows
that Movant's counsel's performance was not deficient
and that Movant did not suffer any prejudice from any alleged
inaction by his counsel; (2) that Movant's claims under
Alleyne are procedurally defaulted and that, in any
event, Movant admitted to brandishing of the firearm at his
guilty plea; and (3) that Movant is not actually innocence of
Court appointed the Federal Public Defender to represent
Movant, (Docket Entry No. 15), and in an amended motion to
vacate (Docket Entry No. 21), asserted (1)
that Movant was denied effective assistance of counsel by
counsel's failure to advise adequately Movant of the
impact of Alleyne on plea proceedings and
sentencing; (2) that the imposition of a sentence for
"brandishing" a firearm violated the Sixth
Amendment right to trial by jury where Movant did not admit
to all of the essential elements of "brandishing" a
firearm in furtherance of a crime of violence; and (3) that
trial counsel was ineffective for failing to recognize this
Sixth Amendment violation at sentencing, failing to recognize
and preserve the issue for appeal, and failing to appeal the
issue to the Sixth Circuit.
filed a supplemented motion to dismiss (Docket Entry No. 23),
contending that the indictment specifically charged Movant
with brandishing a firearm and Movant could not have pled
guilty without admitting that element of the offense as
charged in the indictment and that Movant's argument that
he did not actually admit to brandishing a firearm is
procedurally defaulted, waived, and, factually erroneous.
Findings of Fact
10, 2012, Movant and a co-defendant were charged in a
criminal complaint with armed bank robbery. (Criminal No.
3:12-cr-00094-01, Docket Entry No. 1). The complaint alleged
that on May 8, 2012, two men, brandishing guns, entered a
bank and demanded money from bank employees. Id., at
2. The men left the bank with $ 17, 898, but were soon
apprehended by the police. Id., at 2-3. Movant was
in possession of a bag with $14, 719 and a loaded pistol.
Id., at 3. A video capturing the robbery showed that
one of the robber's clothing matched the clothing worn by
Movant at the time of his arrest. Id. Movant waived
his Miranda rights and confessed verbally and in
writing to Federal Bureau of Investigation Agent Charles
14, 2012, Movant appeared for his initial appearance and was
temporarily detained. Id., Docket Entry Nos. 7, 11.
The magistrate judge set a preliminary examination and
detention hearing for May 17, 2012. Id., Docket
Entry No. 7. On May 16, 2012, a federal grand jury indicted
Movant for armed bank robbery in violation of 18 U.S.C.
§§ 2113(a), (d) and 2 (Count One), and for using,
carrying and brandishing a firearm during and in relation to
a crime of violence in violation of 18 U.S.C. §§
924(c)(1)(A) and 2 (Count Two). Id., Docket Entry
No. 18. Count Two charged that Movant "did knowingly
use, carry, and brandish, a firearm: to wit a
Taurus, .40 caliber pistol, during and in relation to a crime
of violence ... that is armed bank robbery.....In violation
of Title 18, United States Code, Sections 924(c)(1)(A) and
2." Id., at 2 (emphasis added).
August 5, 2013, Movant pled guilty to armed bank robbery and
to brandishing a firearm during and in relation to a crime of
violence. Id., Docket Entry Nos. 64-65. The plea
petition states, in part, the following:
(3) I have received a copy of the indictment before being
called upon to plead and have read and discussed it with my
lawyer, and believe and feel that I understand every
accusation made against me in the indictment.
(4) I have had sufficient opportunity to discuss with my
lawyer the facts and surrounding circumstances concerning the
matters mentioned in the indictment. My lawyer has counseled
and advised with me as to the nature and cause of every
accusation against me. We have thoroughly discussed the
government's case against me and my potential defenses to
the government's case. My lawyer has explained each
element of the crime charged to me and what the government
would offer to prove these elements beyond a reasonable
(5) I understand that the statutory penalty for each of the
offenses with which I am charged is, a. as to Count One -
armed bank robbery:
i. not more than twenty-five (25) years imprisonment,
ii. restitution of no more than $9, 324.17,
iii. a fine of up to $250, 000.00,
iv. a mandatory $100 special assessment, and
v. a term of supervised release of not more than five (5)
years in addition to such term of imprisonment.
b. as to Count Two - brandishing a firearm during a crime
i. not less than seven (7) years imprisonment,
ii. a fine of up to $250, 000.00,
iii. a mandatory $100 special assessment, and
iv. a term of supervised release of not more than three (3)
years in addition to such term of imprisonment.
I understand that terms of imprisonment for convictions on
more than one count may be ordered to run concurrently or
consecutively with each other and that a sentence on Count
Two would be required to run consecutively to the sentence on
(6) ......My lawyer and I have discussed the calculation of
the Guidelines in my case. My lawyer has given me an estimate
of the Guidelines range that may apply in my case as 33 - 41
months 84 months (117 -125 months).
Id., Docket Entry No. 65 at 1-2 (emphasis added and
plea colloquy, Movant acknowledged that he was pleading
guilty "[t]o a bank robbery charge and brandishing a
firearm." Id., Docket Entry No. 77 at 6. The
Court also stated, "For the use, carrying, and
brandishing of a firearm, the government will be required to
prove the offense of the armed bank robbery and also prove
that you, in fact, used, carried or brandished a firearm
during that bank robbery. Do you understand that?"
Id., at 11. Movant responded "Yes, sir."
Id. The Court then asked Movant, "Do you
understand what the government has to prove to show that you
brandished a firearm during the act of violence? Do you
understand that?, " to which Movant responded,
"Yes, sir." Id., 12.
also stated that he was satisfied with his counsel's
representation and that counsel had gone over with him the
charges, the elements of the offense, the maximum penalty,
his discovery of the government's proof if Movant's
case went to trial, and what counsel's investigation into
the charges revealed. Id., at 17. Movant also testified that
he was not pleading guilty because his lawyer was making him
do it and that no one from the government had threatened him,
leaned on him, or promised him anything. Id. at 18.
Movant further testified that he made his decision to plead
guilty freely and did so with the benefit of his lawyer's
statement of proof against Movant was then read into the
record that included the statement that "[t]he two men
both brandished weapons and approached the teller
stations." Id., at 19. Movant admitted that the
statements of fact were true and accurate. Id., at
20. Movant also testified as follows:
Q. Tell me what you did.
A. Me? I had the gun in my possession, and me and Tanner
Patterson forced ourselves into the bank and robbed the bank.
Q. Did you have something with you? I couldn't hear it.
What did you have with you ...