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Miller v. United States

United States District Court, E.D. Tennessee

January 12, 2017

TERRY W. MILLER, Petitioner,



         Before the Court is a motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. Section 2255, [Docs. 800, 801], [1] filed by Terry W. Miller, (“Miller” or “petitioner”) The government has responded in opposition, [Doc. 844], and petitioner has replied, [Doc.865], [2] and the matter is ripe for disposition. The Court has determined that the files and records in the case conclusively establish that, except as discussed below, the petitioner is not entitled to relief under § 2255 and his motions will be DENIED and the case DISMISSED.

         I. Factual and Procedural Background

         On September 13, 2011, a federal grand jury returned a 45-count indictment charging petitioner and 20 co-defendants for their respective roles in a large-scale drug trafficking conspiracy, [Doc. 3]. Petitioner and seven co-defendants were charged in Count Three with conspiracy to distribute and possess with intent to distribute oxycodone in violation of 18 U.S.C. §§ 846 and 841(b)(1)(C), [Id., at 7]. Miller subsequently pled guilty to Count Three on February 21, 2012, [Doc. 830], pursuant to a negotiated plea agreement, [Doc. 358]. He agreed that he had conspired with at least one other person to distribute and possess with intent to distribute approximately 1, 620 30-milligram oxycodone pills and 810 15-milligram oxycodone pills. [Id., at ¶ 4(a)]. During the course of the conspiracy, Miller and other traveled to Florida to various pain clinics where they obtained prescriptions for oxycodone pills which were then filled at pharmacies either in Florida or Georgia. The pills were then used or sold in the Eastern District of Tennessee. [Id., at ¶ 4(b)]. Pursuant to a Title III wiretap, petitioner was intercepted numerous times speaking with William McMahan, Jr., the organizer of the conspiracy, about plans for travel to Florida and various other aspects of the conspiracy. [Id., at ¶¶ 4(c)-(p)]. On September 2, 2010, Miller and co-defendant, Brandon Miller, were stopped by the Jefferson County Sheriff's Office in possession of 65 15-milligram oxycodone pills and 240 30-milligram oxycodone pills. [Id., at ¶ 4(q)], At the conclusion of the change of plea hearing, a sentencing hearing was scheduled and a presentence investigation report, (“PSR”) was ordered. [Doc. 441].

         Based on the stipulated quantity of oxycodone pills for which petitioner was responsible, the probation officer found a base offense level of 28. After a three-level reduction for acceptance of responsibility pursuant to USSG § 3E1.1(a) and (b), petitioner's total offense level became 25. [PSR, at ¶¶ 29, 34, 41-43]. No other adjustments were made to the offense level. The probation officer determined petitioner's criminal history category to be III based on a 1991 aggravated assault conviction and a 2004 conviction for possessing a firearm as a felon. [Id., at ¶¶ 66, 70-72]. At the time, petitioner had twenty-three adult convictions, one pending charge for kidnapping, and twenty-five additional arrests [Id., at ¶¶ 47-70, 74-99]. As a result, petitioner's advisory guidelines range was 70-87 months of imprisonment. [Id., at ¶ 17]. Miller, through counsel, objected to the PSR on the basis that no criminal history points, rather than three, should be assessed for the 1991 aggravated assault conviction on the ground that the conviction had expired more than fifteen years prior to the instant offense. See USSG § 4A1.1(a), com., app n.1 (“A sentence imposed more than fifteen years prior to the defendant's commencement of the instant offense is not counted unless the defendant's incarceration extended into this fifteen-year period. See § 4A1.2(e)”) (bold italics added). The government, on the other hand, moved for an upward departure pursuant to USSG § 4A1.3 on the ground that the defendant's calculated guidelines range “drastically under state[d] the Defendant's history and characteristics” and did not adequately account for the seriousness of his criminal history or his danger to the community. [Doc. 595, at 1-2]. The government suggested that a criminal history category VI more accurately reflected petitioner's criminal history and argued for a sentence of 137 months. [Id.].

         At sentencing on July 30, 2012, petitioner's attorney sought to withdraw his objection to the PSR, explaining that a review of the underlying records from the Tennessee Department of Correction established that Miller had been released from prison in May, 1995, a date that “extended into the 15-year period.” [Doc. 735, at 4-5]. The Court asked petitioner if he consented to withdrawal of the objection and petitioner explained that, although he was released in May, 1995, within the 15-year period, his sentence had actually expired about a year earlier because he had actually served six years on two concurrent five year sentences, i.e., that his sentence had actually expired much earlier than May, 1995, even though he remained in custody. [Id., at 6-7]. This apparently happened, according to the documents filed by petitioner with his motion, because the trial judge did not enter the order making the two five-year sentences concurrent, instead of consecutive, until February 20, 1997. [See Doc. 801, Ex. C]. The Court ultimately overruled the objection, [id. at 8-9], and agreed with the government that an upward departure was necessary because petitioner's criminal history category “substantially under represent[ed] the seriousness of [his] criminal history and the likelihood that [he] w[ould] commit other offenses.” [Id., at 26]. Miller was sentenced to 117 months of imprisonment and judgment was entered on August 8, 2012, [Doc. 613].

         Petitioner appealed to the Sixth Circuit, [Doc. 615], challenging the propriety of the sentence imposed. He argued “that the district court erred in sentencing him above the applicable guidelines range because: (1) nearly all of his prior convictions occurred more than 11-years prior to the instant offense; (2) with respect to his 1991 aggravated assault conviction for which he was incarcerated until May, 1995 and for which he received three criminal history points, he ‘was only about 3 (three) months away from not having this offense count toward his [c]riminal [h]istory [c]ategory'; (3) the last violent crime he committed was over 19 years ago; (4) the drug quantity attributable to him was at the low end of the range associated with his base offense level; and (5) the instant offense did not involve violence or firearms.” [Doc. 762, at 2]. The Sixth Circuit rejected all these claims and found that the district court “did not abuse its discretion and took care to ensure that the sentence was not greater than necessary to comply with the purposes of § 3553(a).” [Id., at 4]. Petitioner did not seek review by the Supreme Court and his § 2255 motion was timely filed in this Court.

         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, 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).

         When a § 2255 Petitioner claims he was denied his sixth amendment right to effective assistance of counsel, it is noted that an attorney is presumed to have provided effective assistance, and the Petitioner bears the burden of showing that the attorney did not, Mason v. Mitchell, 320 F.3d 604, 616-17 (6th Cir. 2003). Petitioner must prove that specific acts or omissions by his attorney were deficient and that the attorney failed to provide “reasonably effective assistance, ” Strickland v. Washington, 466 U.S. 668, 687 (1987), which is measured by “prevailing professional norms, ” Rompilla v. Beard, 545 U.S. 374, 380 (2005). If Petitioner crosses this evidentiary hurdle, he must then show “a reasonable probability that, but for [the attorney's acts or omissions], the result of the proceedings would have been different.” Strickland, 466 U.S. at 694. In other words, he must show that he was prejudiced by the attorney's deficient representation:

To succeed on an ineffective assistance claim, a defendant must show that counsel's deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). [A court's ] review of counsel's performance is “highly deferential.” Id. at 689, 104 S.Ct. 2052. [The court must] “judge the reasonableness of the time of counsel's conduct.” Id. at 690, 104 S.Ct. 2052. The defendant “must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment.” Id. To establish “prejudice, ” 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. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052. “The likelihood of a different result must be substantial, not just conceivable.” Harrington v. ...

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