United States District Court, W.D. Tennessee, Western Division
H. MAYS, JR., UNITED STATES DISTRICT JUDGE
the Court is Petitioner Ovell Evers, Sr.'s
(“Evers”) Motion Under 28 U.S.C. § 2255 to
Vacate, Set Aside, or Correct Sentence by a Person in Federal
Custody, filed on September 3, 2013. (ECF No. 1
(“§ 2255 Mot.”).) Respondent United States
of America (“the Government”) filed a response on
May 13, 2015. (U.S.'s Resp. in Opp'n to
Def.-Pet'r's Mot. to Vacate, Set Aside, or Correct
Sentence Pursuant to 28 U.S.C. § 2255, ECF No. 11
(“§ 2255 Resp.”).) Evers filed a reply in
support of his § 2255 Motion on January 17, 2017.
(Pet'r's Reply to U.S. Resp., ECF No. 24
(“§ 2255 Reply”).)
following reasons, the § 2255 Motion is DENIED.
Case No. 07-20048
February 13, 2007, Evers was indicted on two counts of
producing child pornography, in violation of 18 U.S.C. §
2251(a), and one count of possessing child pornography, in
violation of 18 U.S.C. § 2252(a)(4)(B). (Indictment 1-3,
ECF No. 1 in 07-20048.) On January 11, 2008, after a three-day
trial, a jury found Evers guilty on all three counts. (Jury
Verdict, ECF No. 69 in 07-20048 (“Jury
Verdict”).) On June 9, 2008, the Court sentenced Evers
to 235 months of imprisonment, 10 years of supervised
release, $1, 640 in restitution, and the forfeiture of
certain property. (J. 2-5, ECF No. 80 in 07-20048.)
filed a notice of appeal on June 11, 2008. (Notice of Appeal,
ECF No. 81 in 07-20048; see also Br. of
Def./Appellant, United States v. Evers, Case No.
08-5774 (6th Cir. June 15, 2010) (“Evers Sixth
Cir. Br.”.) The U.S. Court of Appeals for the Sixth
Circuit vacated the judgment as to one forfeited item and
part of the restitution award. United States v.
Evers, 669 F.3d 645, 649 (6th Cir. 2012). The conviction
and sentence were otherwise affirmed. The Court resentenced
Evers on August 29, 2012, in accordance with the Sixth
Circuit's ruling. (Am. J., ECF No. 103 in 07-20048
(“Am. J.”).) Evers did not file any further
Case No. 13-02690
September 3, 2013, Evers filed the § 2255 Motion. Evers
asserts seven grounds of relief: (1) “A[ctual]
I[nnocence]”; (2) “5th and 6th Amendment
Violations Coming from a Tainted Jurist”; (3)
“5th and 6th Amen[d]ment Violations by law
enforcement [i]nhibiting [Defendant's] access to legal
counsel”; (4) “Improper Restitution”; (5)
“Ineffective Assistance Of Counsel”; (6)
“The New Rule of [Alleyne v. United States] .
. . Applies to the [Defendant's] situation . . .”;
and (7) “The New Rule of [Alleyne] . . . is
retroactive under [Teague v. Lane].”
(Id. at PageID 6-17.) On May 13, 2015, the
Government filed a response to the § 2255 Motion.
(§ 2255 Resp.)
19, 2015, Evers filed a motion seeking additional time to
file a reply in support of the § 2255 Motion. (Mot. to
Enlarge Period to Reply to U.S.'s Resp. to Evers's
[28 U.S.C.] § 2255 Mot. to Vacate, Set Aside or Correct
Sentence, ECF No. 12.) The Court granted that motion on June
23, 2015. (Order Granting Mot. for Extension of Time, ECF No.
30, 2015, Evers filed a motion asking the Court, inter
alia, to extend his reply deadline again. (Mot. to Ct.
to Order the Release of Trs. and Grant an Additional
Extension of Time to [Movant] to Adequately Reply to
U.S.'s Resp. to [Movant's] [28 U.S.C. § 2255]
Mot., ECF No. 14.) Evers requested the release of various
transcripts and an additional “90 days from receipt of
the transcripts” to submit his reply. (Id. at
9, 2016, the Court entered an order granting in part
Evers's request for transcripts. (Order 1, 4-5, ECF No.
17.) The Court ordered the Clerk of Court to send Evers
copies of the January 2008 trial transcripts. (Id.
at 5.) They were sent to Evers on June 27, 2016. That order
also gave Evers an extension to file his reply.
(Id.) His new deadline was 45 days “from the
date of mailing of the [trial] transcripts.”
(Id.) The resulting reply deadline was August 11,
August 18, 2016, Evers filed a Motion Seeking Two Types of
Relief. (ECF No. 18 (“Relief Mot.”).) Evers asked
the Court to reconsider its decision to deny in part
Evers's previous request for transcripts. (Id.
at 1-2.) He also sought a third extension of time to file his
reply. (Id. at 2.) On September 15, 2016, the Court
entered an order addressing the Relief Motion. (Order, ECF
No. 19.) The Court denied Evers's request for
reconsideration of the Court's decision about
transcripts. (Id. at 6-7.) It granted Evers's
request for an extension, giving Evers “60 days from
the entry of this Order to file his reply.”
(Id. at 9.) The resulting deadline was November 14,
November 17, 2016, Evers filed a motion requesting a fourth
extension of time to file his reply. (Mot. to Ct. to Enlarge
the Period of Time from Nov. 14, 2016 to Jan. 13, 2017 for
[Movant] to Reply to the U.S.'s Resp. to Movant's 28
U.S.C. § 2255 Mot. to Vacate, [Set] Aside or Correct
Sentence, ECF No. 21.) On November 23, 2016, the Court
entered a text order granting Evers's request and giving
Evers a deadline of January 13, 2017. (Text Order, ECF No.
23.) Evers filed his reply on January 17, 2017. (§ 2255
STANDARD OF REVIEW
seeks relief under 28 U.S.C. § 2255. (§ 2255 Mot.)
Under § 2255(a),
[a] prisoner in custody under sentence of a court established
by Act of Congress claiming the right to be released upon the
ground that the sentence was imposed in violation of the
Constitution or laws of the United States . . . or that the
sentence was in excess of the maximum authorized by law . . .
may move the court which imposed the sentence to vacate, set
aside or correct the sentence.
28 U.S.C. § 2255(a).
succeed on a § 2255 motion, a prisoner in custody must
show ‘(1) an error of constitutional magnitude; (2) a
sentence imposed outside the statutory limits; or (3) an
error of fact or law that was so fundamental as to render the
entire proceeding invalid.'” McPhearson v.
United States, 675 F.3d 553, 558-59 (6th Cir. 2012)
(quoting Mallett v. United States, 334 F.3d 491,
496-97 (6th Cir. 2003)).
prisoner must file his § 2255 motion within one year of
the latest of:
(1) the date on which the judgment of conviction becomes
(2) the date on which the impediment to making a motion
created by governmental action in violation of the
Constitution or laws of the United States is removed, if the
movant was prevented from making a motion by such
(3) the date on which the right asserted was initially
recognized by the Supreme Court, if that right has been newly
recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or
claims presented could have been discovered through the
exercise of due diligence.
28 U.S.C. § 2255(f).
§ 2255 motion “‘is not a substitute for a
direct appeal.'” Ray v. United States, 721
F.3d 758, 761 (6th Cir. 2013) (quoting Regalado v. United
States, 334 F.3d 520, 528 (6th Cir. 2003)).
“[C]laims not raised on direct appeal, ” which
are thus procedurally defaulted, “may not be raised on
collateral review unless the petitioner shows cause and
prejudice.” Massaro v. United States, 538 U.S.
500, 504 (2003) (citing cases); see also, e.g.,
Jones v. Bell, 801 F.3d 556, 562 (6th Cir. 2015)
(quoting Wainwright v. Sykes, 433 U.S. 72, 84
procedural-default context, the cause inquiry
“‘ordinarily turn[s] on whether . . . some
objective factor external to the defense impeded
counsel's efforts'” to raise the issue on
direct appeal. Ambrose v. Booker, 684 F.3d 638, 645
(6th Cir. 2012) (quoting Murray v. Carrier, 477 U.S.
478, 488 (1986)) (alteration and ellipses in
Ambrose); see also United States v. Frady,
456 U.S. 152, 167-68 (1982) (cause-inquiry standards in
§ 2254 cases apply to § 2255 cases). “[F]or
cause to exist, an ‘external impediment, whether it be
government interference or the reasonable unavailability of
the factual basis for the claim, must have prevented
petitioner from raising the claim.'” Bates v.
United States, 473 F. App'x 446, 448-49 (6th Cir.
2012) (quoting McCleskey v. Zant, 499 U.S. 467, 497
(1991)) (emphasis removed).
prejudice to excuse default, a petitioner must show
“‘actual prejudice' resulting from the errors
of which he complains.” Frady, 456 U.S. at
168; see also Ambrose, 684 F.3d at 649.
assistance of counsel can constitute cause excusing
procedural default. Where a petitioner claims that a
procedural default occurred due to ineffective assistance of
counsel, “relief under § 2255 [is] available
subject to the standard of Strickland v. Washington,
[466 U.S. 668 (1984)].” Grant v. United
States, 72 F.3d 503, 506 (6th Cir. 1996); see also
Bell, 801 F.3d at 562. Ineffective assistance of
counsel, under the Strickland standard, can also
serve as an independent ground for § 2255 relief.
See, e.g., Campbell v. United States, 686
F.3d 353, 357 (6th Cir. 2012). Evers's motion addresses
both aspects of ineffective assistance.
establish ineffective assistance of counsel, “[f]irst,
the defendant must show that counsel's performance was
deficient. . . . Second, the defendant must show that the
deficient performance prejudiced the defense.”
Strickland, 466 U.S. at 687. “Unless a
defendant makes both showings, it cannot be said that the
conviction . . . resulted from a breakdown in the adversary
process that renders the result unreliable.”
demonstrate deficient performance by counsel, a petitioner
must show that “counsel's representation fell below
an objective standard of reasonableness.” Id.
at 688. In considering an ineffective-assistance claim, a
court “must apply a ‘strong presumption' that
counsel's representation was within the ‘wide
range' of reasonable professional assistance. . . . The
challenger's burden is to show ‘that counsel made
errors so serious that counsel was not functioning as the
“counsel” guaranteed the defendant by the Sixth
Amendment.'” Harrington v. Richter, 562
U.S. 86, 104 (2011) (quoting Strickland, 466 U.S. at
demonstrate prejudice, a petitioner must establish “a
reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different.” Strickland, 466 U.S. at
694. “‘A reasonable probability is a probability
sufficient to undermine confidence in the
outcome.'” Id. “In assessing
prejudice under Strickland, the question is not
whether a court can be certain counsel's performance had
no effect on the outcome or whether it is possible a
reasonable doubt might have been established if counsel acted
differently. . . . The likelihood of a different result must
be substantial, not just conceivable.”
Richter, 562 U.S. at 111-12 (citing Wong v.
Belmontes, 558 U.S. 15, 27 (2009); Strickland,
466 U.S. at 693).
court need not determine whether counsel's performance
was deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies.”
Strickland, 466 U.S. at 697. If a reviewing court
finds a lack of prejudice, it need not determine whether, in
fact, counsel's performance was deficient. Id.
Strickland's high bar is never an easy
task.” Padilla v. Kentucky, 559 U.S. 356, 371
(2010) (citing Strickland, 466 U.S. at 689, 693).
An ineffective-assistance claim can function as a way to
escape rules of waiver and forfeiture and raise issues not
presented at trial, and so the Strickland standard
must be applied with scrupulous care, lest “intrusive
post-trial inquiry” threaten the integrity of the very
adversary process the right to counsel is meant to serve.
Even under de novo review, the standard for judging
counsel's representation is a most deferential one.
Unlike a later reviewing court, the attorney observed the
relevant proceedings, knew of materials outside the record,
and interacted with the client, with opposing counsel, and
with the judge. It is “all too tempting” to
“second-guess counsel's assistance after conviction
or adverse sentence.” The question is whether an
attorney's representation amounted to incompetence under
“prevailing professional norms, ” not whether it
deviated from best practices or most common custom.
Richter, 562 U.S. at 105 (citations omitted).
“Counsel [cannot] be unconstitutionally ineffective for
failing to raise . . . meritless arguments.” Mapes
v. Coyle, 171 F.3d 408, 427 (6th Cir. 1999).
a petitioner may obtain review of a procedurally defaulted
claim by demonstrating his “actual innocence.”
Bousley v. United States, 523 U.S. 614, 623-24
(1998). “To establish actual innocence, petitioner must
demonstrate that, in light of all the evidence, it is more
likely than not that no reasonable juror would have convicted
him.” Id. at 623 (quotation marks omitted)
(quoting Schlup v. Delo, 513 U.S. 298, 327-28
petitioner files a § 2255 motion, the Court reviews it
and, “[i]f it plainly appears from the motion, any
attached exhibits, and the record of prior proceedings that
the moving party is not entitled to relief, the judge must
dismiss the motion . . . .” Rules Governing Section
2255 Proceedings for the U.S. District Courts (“§
2255 Rules”) at Rule 4(b). “If the motion is not
dismissed, the judge must order the United States attorney to
file an answer, motion, or other response within a fixed
time, or to take other action the judge may order.”
Id. The § 2255 movant is entitled to reply to
the government's response. Id. at Rule 5(d). The
Court may also direct the parties to provide additional
information relating to the motion. Id. at Rule
7(a). If the district judge addressing the § 2255 motion
is the same judge who oversaw the trial, the judge
“‘may rely on his or her recollection of the
trial'” in denying the motion. Christopher v.
United States, 605 F. App'x 533, 537 (6th Cir. 2015)
(quoting Arredondo v. United States, 178 F.3d 778,
782 (6th Cir. 1999)).