United States District Court, M.D. Tennessee, Northeastern Division
William J. Haynes, Jr. Judge
Timothy James Neill, Jr., filed this pro se action under 28
U.S.C. § 2255, seeking to vacate, set aside, or correct
sentence for possessing a firearm as a convicted felon, for
which he received a sentence of 92 months imprisonment.
Movant asserts: (1) that his guilty plea was "unlawfully
induced" because Movant was advised that a guilty plea
was in his interest based on the evidence and his confession;
(2) that his conviction that was based upon his coerced
confession is invalid; (3) that his conviction that was based
upon evidence seized as a result of an unconstitutional
search is invalid; and (4) that his attorney was ineffective
because he failed to advise him properly during plea
negotiations and he failed to file a motion to suppress his
conviction and other evidence.
Court ordered Respondent to respond. (Docket Entry No. 2).
Movant filed an amended motion (Docket Entiy No. 9),
asserting additional claims that his attorney was ineffective
because (1) he failed to argue for a departure at sentencing,
(2) he failed to present evidence regarding the circumstances
of Movant's plea negotiations and Movant's mental
health history at sentencing, (3) he improperly advised
Movant at sentencing, and (3) he failed to file an appeal
despite Movant advising him to do so.
Court appointed the Federal Public Defender to represent
Movant (Docket entry No. 10), and the Federal Public Defender
filed an amended motion to vacate (Docket Entiy No. 21),
asserting: (1) that Movant's attorney was ineffective
because he failed to file a motion to suppress evidence, he
failed to advise him properly during plea negotiations
regarding the likelihood of conviction and his sentencing
exposure, he failed to advise him properly following his
conviction regarding the decision to appeal, and he failed to
present mitigation evidence and propose partially concurrent
sentencing at sentencing; and (2) that Movant's guilty
plea was involuntary and without the understanding of the
viability of a suppression motion, the likelihood of
conviction, and his sentencing exposure.
filed a response (Docket Entry No. 22), asserting: (1) that
Movant's ineffective assistance of counsel claims have no
factual or legal basis and that the ineffectiveness alleged
by Movant would not have affected the outcome of the action;
(2) that Movant's guilty plea was voluntary and knowing
because his attorney's advice was sound; and (3) that the
Bureau of Prisons erred in calculating Movant's sentence
by failing to credit Movant for the time between his federal
arrest and his return to Tennessee custody. The Court
concluded that an evidentiaiy hearing was necessary as to
Movant's ineffective assistance of counsel claims (Docket
Entry No. 30), and an evidentiaiy hearing was held on June
29, 2015 (Docket Entiy No. 53, Transcript of Evidentiaiy
appointed counsel filed a second amended motion to vacate
(Docket Entry No. 49), restating the claims in Movant's
first amended motion to vacate (Docket Entry No. 21) and
asserting an additional claim that Movant's base offense
level under the sentencing guidelines was enhanced pursuant
to a clause that is unconstitutionally vague in light of the
United States Supreme Court's decision in Johnson v.
United States, 135 S.Ct. 2551 (2015). The Court ordered
Respondent to respond to Movant's second amended motion
(Docket Entiy No. 51), to which Respondent filed a response
(Docket Entry No. 59), asserting: (1) that the testimony of
Movant and Movant's counsel at the evidentiaiy hearing
reflect that Movant's counsel's performance was not
deficient and that Movant did not suffer any prejudice from
any alleged inaction by his counsel; and (2) that, if the
Court does not hold this action in abeyance pending the
Supreme Court's ruling in Welch v. United
States. 136 S.Ct. 790 (2016), the Court should not apply
Johnson retroactively to Movant's claim arising
under the sentencing guidelines. Movant filed a reply (Docket
Entiy No. 68), asserting that he is entitled to relief under
Johnson and that the Court should not hold this
action in abeyance because Welch is not likely to
address claims arising under the guidelines. Respondent filed
a sur-reply (Docket Entry No. 71), asserting that the Court
should hold this action in abeyance because Welch
will likely provide instruction on or resolve this issue.
Findings of Fact
March 2, 2011, a federal grand jury indicted Movant for
possessing a firearm as a convicted felon in violation of 18
U.S.C. § 922(g)(1) and 924(a)(2). (Criminal No.
2:11-cr-00001-5, Docket Entry No. 3). On September 12, 2011,
Movant pled guilty to possessing a firearm as a convicted
felon. Id., Docket Entry No. 229. 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 penalties for the offense
with which I am charged are as follows:
Count Five (18 U.S.C. § 922(g)(1), felon in possession
of a firearm) -carried up to ten (10) years imprisonment, a
fine of up to $250, 000.00, or both, a term of supervised
release of up to three (3) years, and a $100.00 special
assessment. Should Defendant Neill be found to have three (3)
prior conviction for a violent felony, serious drug offense,
or both, 18 U.S.C. 924(e)(1) requires a sentence of not less
than fifteen (15) years nor more than life imprisonment, a
fine of up to $250, 000, or both, and a term of supervised
release of up to five (5) years.
(6) I have been advised that I will be sentenced to a
sentence sufficient but not greater than necessary to satisfy
the goals of sentencing specific in 18 U.S.C. § 2552(a).
One consideration will be Guidelines established by the
United States Sentencing Commission. I understand that these
Guidelines are advisory, but that the Court must take account
of the Guidelines together with other sentencing goals. My
lawyer and I have discussed the calculation of the Guidelines
in my case. I have been advised by my attorney that the
guideline calculation in my case should be sixty-three (63)
to seventy-eight (78) months. I realize that this is simply
my layer's estimate. I understand that my advisory
Guideline range will be calculated by the United States
Probation Officer who prepares the presentence report in my
case. This estimation is subject to challenge by either me or
the government, unless prohibited by a plea agreement. The
final Guideline calculation will be made by the Court. I
further understand that I may be sentenced to a fine to be
calculated through the Guidelines. No fine will be imposed if
the Judge finds me unable to pay any fine. Considered in this
fine may be the amount of financial loss to the victim or
gain to me as well as the costs of any confinement or
probation supervision. The Court may also order that
restitution be made to any victim of the offense. [If I am
convicted of any offense specific in 18 U.S.C. § 3663
A(c), or as otherwise required by law, restitution is
mandatory.] I have a right to a review of my sentence by the
United States Court of Appeals for the Sixth Circuit unless
waived in the plea agreement.
Id. at 1-2 (emphasis in original).
January 11, 2013, the Court sentenced Movant to 92 months
imprisonment. Id., Docket Entry No. 445. The Court
also sentenced Movant to three years of supervised release.
Id. at 3.
June 29, 2015 evidentiary hearing on his § 2255
ineffective assistance of counsel claims, Movant testified on
direct examination that he went over guidelines with his
attorney Benjamin Perry. (Civil No. 2-14-cv-00013, Docket
Entry No. 53 at 7-8). Movant believed that his guideline
range was 63 to 78 months. Id. at 9. Movant
testified that his attorney stated that he would be surprised
if the Court sentenced him to over 60 months. Id. at
10. Movant testified that if he had known that his guideline
range was 92 to 115 months he may have changed his opinion of
whether to go to trial, hi at 10. Movant also testified that
his attorney discussed with him what type of evidence would
be submitted in seeking the Court to go below the guidelines,
such as Movant's mental health history, the extent of his
involvement in the whole case, and childhood factors.
Id. at 11-12. Movant admitted that his attorney
provided evidence of his mental health history at sentencing.
Id. at 12.
Movant's claim that his conviction was based upon
evidence seized as a result of an unconstitutional search and
his counsel failed to file a motion seeking suppression of a
cell phone that contained photographs of him holding a gun,
Movant testified that his attorney advised him that, because
Movant gave the cell phone to his girlfriend, Movant could
not contest the search of another person. Id. at
12-15. Movant also testified that after sentencing he
directed his attorney to appeal. Id. at 17-18.
Movant testified that his attorney convinced him "that
it was probably in [his] best interest just to leave [an
appeal] alone" because his attorney was concerned that,
if Movant won on appeal, Movant could receive a higher
sentence because "the issues we had would still be
within the guidelines." Id. at 18-19.
asked if there was anything else he wanted to address with
the Court, Movant stated, "The only other thing that I
would like to address was the fact that the judge granted me
my credit for time served and the DOC won't honor it
without the finding of one-third, but other than that -but
the issues that we covered are, I believe, the main
issues." Id. at 22.
cross examination, Movant admitted that he made a videotaped
statement admitting to holding the weapon in the photograph.
Id. at 24. Movant testified that his attorney filed
a motion to suppress, but later withdrew it. Id. at
25. As to the ownership of the cell phone, Movant testified
Q. But you never said that the phone was yours, that the
phone was ours, that you had bought it, anything like that;
A. Well, at the time, I was never advised as to those were
ways to develop standing, so I was not familiar with that. I
didn't know that I had to, you know, specifically say,
"my phone." Id. at 26.
also admitted that he knew the guideline range was an
estimate and not binding. Id. at 27. Movant then
read a letter dated January 31, 2012, from his attorney who
stated "As we discussed, anything in the five-year range
would be a good outcome, and anything less than that would be
a very good outcome." Id. at 28, Exhibit F.
Movant admitted that statement implied that it was possible
that he could be sentenced to more than five years.
Id. at 29.
further admitted that during the plea colloquy, Movant stated
That he was satisfied with counsel's representation and
that he was pleading guilty voluntarily. Id. at
29-30. Movant also understood that, if he received a sentence
that he did not like, he could not take back his guilty plea
and that the final sentence would be determined by the Court.
Id. at 30. When the Court at the end of the guilty
plea colloquy, asked if Movant still wanted to enter the
guilty plea, Movant said, "Yes." Id.
According to Movant, after the plea hearing, he thought about
changing his plea and going to trial after he learned that
the guidelines showed 92 to 115 months. Id. Movant
testified that he understood that if he went to trial, the
evidence against him would be a photograph of him holding a
weapon, his lengthy videotape statement where he admitted to
possessing the weapon, and potential testimony of other
people who witnessed him possessing the weapon. Id.
at 31. Movant testified that his attorney told him that the
guidelines were only advisory and the Court could go below
them. Id. at 32. Movant stated that he and his
attorney discussed strategy to contest the guidelines and
that his attorney presented evidence of his mental health by
submitting mental health records and referencing Movant's
mental health history as grounds for requesting a 36 month
sentence. Id. at 32-34. Movant admitted that his
attorney asked the Court to make the 36 month sentence that
he was requesting concurrent with his state sentence.
Id. at 35.
denied that he had a conversation with his attorney on
January 21, 2013, asking him to file an appeal, but stated
that it was either the last week of January or the beginning
of February that he told his attorney not to file a notice of
appeal. Id. at 37-38. Movant admitted that in their
discussion about whether to appeal, Movant's counsel
explained that if he were to win on appeal and the case was
remanded, the probation office might discover two prior
convictions that were previously missed when drafting the
presentence report. Id. at 3 8. Movant's counsel
also explained that the question of whether the gun had a
large magazine was a factual question. Id.
Respondent then asked, "But at the end of this
conversation that you're not sure when it was, you
understood that he was not going to be filing an appeal for
you; right?" to which Movant responded, "Yes,
sir." Id. at 39.
letter dated July 7, 2013, that Movant orally read at the