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Ballinger v. United States

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

January 27, 2017




         Daniel Curtis Ballinger (“Petitioner”) is a federal prisoner due to his conviction and sentence in this Court for possessing 50 or more grams of crack cocaine with the intent to distribute.[1] Petitioner has filed a motion pursuant to 28 U.S.C. §2255 to vacate, set aside, or correct his sentence, [Doc. 54], which he has twice amended, [Docs. 60, 63]. Also before the Court is the United States's motion to defer ruling on Petitioner's § 2255 motion pending the Supreme Court's decision next term in Beckles v. United States, No. 15-8544, 2016 WL 1029080 (June 27, 2016) [Doc. 64]. For the reasons discussed in this memorandum, both the United States request for stay and Petitioner's original and amended § 2255 motions will be DENIED.


         The indictment in this case charged petitioner with six counts of distributing or possessing with the intent to distribute crack cocaine; with one count of possessing a firearm in furtherance of the drug trafficking offenses; and with one count of being a convicted felon in possession of a firearm.[2] Petitioner retained attorney Johnathan Holcomb to represent him.

         Ultimately, petitioner entered into a plea agreement with the United States, [3] in which he pled guilty to Count Four of the indictment, possession of 50 or more grams of crack cocaine with the intent to distribute.

         Petitioner's final Offense Level was 34, and his criminal history category was VI, which generated a guideline range of 262 to 337 months imprisonment.[4] Asserting that petitioner provided substantial assistance to the United States, the government filed a motion for downward departure recommending a five level reduction in his offense level from 34 to 29, which in turn reduced his guideline range to 151 to 188 months imprisonment.[5] The Court granted the motion and sentenced petitioner to 151 months, the bottom of the reduced guideline range.[6]

         Petitioner appealed to the Sixth Circuit Court of Appeals. That Court affirmed the judgment and sentence of this Court, finding that plaintiff's guilty plea was valid, and that his sentence was procedurally and substantively reasonable.[7]

         In petitioner's first or original motion, [Doc. 54], he makes two claims, both of which accuse attorney Holcomb of providing unconstitutionally ineffective assistance. In his amended motions, [Docs. 60, 63], petitioner argues that he was improperly classified as a career criminal and his sentence accordingly enhanced under the “residual clause” of Section 4B1.1(a) of the United States Sentencing Guidelines (“USSG”). He insists he therefore should be resentenced.


         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 counsel's challenged conduct on the facts of the particular case, viewed as 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.” H ...

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