United States District Court, E.D. Tennessee, Greeneville
MEMORANDUM OPINION AND ORDER
RONNIE GREER UNITED STATES DISTRICT JUDGE
the Court is a motion to vacate, set aside or correct
sentence pursuant to 28 U.S.C. Section 2255, [Docs. 88],
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
Procedural and Factual Background
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). 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.
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].
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.
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].
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.
Standard of Review
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.
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).
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).
§ 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. ...