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Evers v. United States

United States District Court, W.D. Tennessee, Western Division

March 14, 2017

OVELL EVERS, SR., Petitioner,



         Before 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”).)

         For the following reasons, the § 2255 Motion is DENIED.

         I. BACKGROUND

         A. Case No. 07-20048

         On 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.)[1] 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.)

         Evers 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 appeal.

         B. Case No. 13-02690

         On 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.)

         On June 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. 13.)

         On July 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 1-2.)

         On June 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, 2016.

         On 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, 2016.

         On 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 Reply.)


         Evers 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).

         “To 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)).

         A prisoner must file his § 2255 motion within one year of the latest of:

(1) the date on which the judgment of conviction becomes final;
(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 governmental action;
(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).

         A § 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 (1977)).

         In the 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).

         To show 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.

         Ineffective 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.

         To 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.” Id.

         To 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 687, 689).

         To 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).

         “[A] 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.

         “Surmounting 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).

         Alternatively, 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 (1995)).

         After a 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)).

         III. ...

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