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Barnett v. United States

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

January 13, 2017




         Before the Court is a motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. Section 2255, [Docs. 88], [1] filed by Everette Spencer Barnett, (“Barnett” or “petitioner”) a second motion to vacate, set aside or correct sentence filed by the petitioner on February 9, 2015, [Doc. 96], a memorandum of law in support of the § 2255 motion filed on February 9, 2015, [Doc. 97], and an addendum to petitioner's § 2255 motion filed on August 29, 2016, [Doc. 106]. The government has responded in opposition, [Docs. 95, 100]. Also before the Court is petitioner's request for a scheduling order, [Doc.105]. The petitioner's motion for a scheduling order is GRANTED to the extent he seeks an adjudication of his motions but is otherwise DENIED. The Court has determined that the files and records in the case conclusively establish that the petitioner is not entitled to relief under § 2255 and, therefore, no evidentiary hearing is necessary and his motions, [Docs. 88, 96], will be DENIED and the case DISMISSED.

         I. Procedural and Factual Background

         A federal grand jury indicted Barnett on October 14, 2010, [Doc. 1], charging him with three counts of transporting a minor in interstate commerce with the intent to engage such minor in sexual activity in violation of Title 18 U.S.C. § 2423(a).[2] After significant motion practice, Barnett entered into a written plea agreement with the United States, [Doc. 49], in which he agreed to plead guilty to Count Two of the indictment. A change of plea hearing was conducted on March 31, 2011, [Doc. 50], sentencing was set for August 29, 2011, and a presentence investigation report (“PSR”) was ordered. On April 21, 2011, Barnett filed a pro se motion to amend/revise his plea agreement, [Doc. 52], and on July 12, 2011, he filed pro se motions, [Docs. 53, 54], to withdraw his plea of guilty and to substitute attorney. The motion to substitute attorney was granted on July 13, 2011, [Doc. 56]. The Court held a hearing on August 3, 2011 on the motion to withdraw plea of guilty, [Doc. 60], and entered a memorandum opinion and order, [Doc. 61], denying the motion to amend/correct and the motion to withdraw plea of guilty, [Docs. 52, 53], on August 5, 2011.

         In the PSR, the probation officer assigned a base offense level of 24 pursuant to USSG § 2G1.3(a), [PSR at ¶ 17], applied a 2 level enhancement pursuant to § 2G1.1(b)(1) because petitioner's victim was a minor who was under petitioner's parental care, [id. at ¶ 18], a two level enhancement pursuant to § 2G1.3(b)(2)(B) because petitioner unduly influenced the minor to engage in prohibited sexual conduct, [id. at ¶ 19], a two level enhancement pursuant to § 2G1.3(b)(4) because the offense involved sexual contact, [id. at ¶ 20], and a two level enhancement pursuant to § 3C1.1 for obstruction of justice because the petitioner attempted to tamper with witnesses, [Id. at ¶¶ 14, 23]. The probation officer concluded that petitioner was not eligible for an acceptance of responsibility adjustment because he had attempted to withdraw his guilty plea and claimed that he was innocent, [id. at ¶¶ 15, 25]. Accordingly, petitioner's total offense level was 32, [Id. at ¶ 28]. The PSR listed 22 prior convictions of petitioner, [Id. at ¶¶ 33-54], two of which involved conduct with minors, [Id. at ¶¶ 36, 38]. Because many of the offenses were misdemeanors, petitioner had only three criminal history points, placing him in a criminal history category II, [Id. at ¶ 55]. His criminal history category of II, when combined with his total offense level of 32, resulted in an advisory guideline range of 135 to 168 months of imprisonment. [Id. at ¶ 91].

         On December 31, 2011, the Court adopted the PSR and sentenced Barnett to an above guideline sentence of 264 months of imprisonment, followed by a lifetime term of supervised release, [Doc. 75]. Judgment was entered on December 28, 2011, [Doc. 77], and Barnett filed a notice of appeal to the Sixth Circuit Court of Appeals on December 29, 2011, [Doc. 78]. The Sixth Circuit affirmed this Court's judgment on February 26, 2014, [Doc. 86], and petitioner's first motion to vacate was timely filed on July 10, 2014.

         The underlying facts were extensively developed through petitioner's own admissions in his plea agreement, in the PSR, and from extensive witness testimony at the sentencing hearing. Petitioner physically and sexually abused his step-daughter, NM, from the time she was 12 years old until shortly before she turned 18. [PSR at ¶ 10; Doc. 85, Tr. of Sent. Hrg., at 16-19]. Among other things, petitioner raped NM “approximately two times per week” throughout that period. [PSR at ¶ 10; Doc. 85 at 36]. When the rapes first began, NM told petitioner to stop and tried to physically resist by kicking and scratching, but petitioner was undeterred. [PSR at ¶ 10; Doc. 85 at 18]. Petitioner was stronger than NM and would beat her if she resisted; as a result, NM eventually stopped resisting, “afraid of the physical abuse that [petitioner] would inflict on her if she didn't give in.” [Doc. 85 at 18-20, 37-39]. Petitioner also beat NM if she tried to date or be around boys her own age. [Id. at 20]. On at least one occasion, petitioner also demanded that NM allow him to record a video of her masturbating. [PSR at ¶¶ 8, 10; Doc. 85 at 21-22]. Although most of the rapes occurred at NM'S home, petitioner was also raped at other locations. On one occasion in late May, 2006, when NM was 14 years of age, petitioner drove NM and her mother from their home in Tennessee to Concord, North Carolina where NM was raped by petitioner in a parking lot near the Charlotte Motor Speedway. [Doc. 49, at 2]. Approximately nine months later, NM gave birth to a son who was the first of two children fathered by petitioner. [Doc. 85 at 18-19, 30, 37, 41; PSR at ¶¶ 10-11]. The second child was born a little over a year later when NM was 16 years old. [Doc. 85 at 18-19, 30, 41; PSR at ¶ 10]. As a result of those pregnancies, NM withdrew from school when she was only in the eighth grade. [Id.]. The birth of the children also enabled petitioner to continue his physical and sexual abuse of NM, in that petitioner told NM he would kill her if she tried to take the children away from him, and NM feared losing custody of the children if she reported petitioner's ongoing sexual abuse. [PSR at ¶ 10]. Petitioner's abuse of NM was eventually discovered in May, 2009, when petitioner confessed to his brother that he was having a sexual relationship with NM. [PSR at ¶ 8]. Petitioner's brother reported the abuse to the Tennessee Department of Children's Services which passed the complaint along to law enforcement officials. [Id.]. Officers then interviewed several individuals, including NM and her mother. [Id. at ¶¶ 8-9; Doc. 85 at 12-22]. In June, 2009, law enforcement officers interviewed petitioner about the abuse allegations, [Doc. 85 at 22]. Petitioner denied abusing NM and claimed he had never had sexual intercourse with her. [Id. at 22-23]. Two months later, however, when officers sought a DNA sample from petitioner to confirm his parentage of the children, petitioner told the officers that they could only prove that one of the children was his, thus confirming that he had sexual intercourse with NM on at least one occasion. [Id. at 25]. During that second interview, petitioner also expressed the belief that it was not illegal for him to have sex with NM as long as her mother knew about it. [Id. at 26].

         Law enforcement officers later found a letter in petitioner's car which was addressed to NM and which thanked her for producing “two healthy boys from all that passion.” [Id. at 30]. Petitioner was eventually arrested and charged with several Tennessee criminal offenses in December, 2009. [PSR at ¶¶ 14, 56]. A couple of weeks later, petitioner called NM's mother from jail and instructed her to take NM and the children to West Virginia. [Id. at ¶ 14]. Petitioner explained that the state could not do anything if they were outside of Tennessee [Id.]. Petitioner also attempted to contact NM to tell her not to allow law enforcement to get DNA samples from the children, [Id.]. Despite petitioner's effort to thwart DNA collection from the children, law enforcement officials were ultimately able to obtain DNA samples from both children and the petitioner. [Id. at ¶ 11]. An analysis of those samples revealed that it was 99.99 percent likely that petitioner was the biological father of both children. [Id.].

         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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