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Mitchell v. United States

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

March 17, 2017

ADAM SCOTT MITCHELL, Petitioner
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM AND ORDER

          Leon Jordan United States District Judge.

         Adam Scott Mitchell, Petitioner, has filed a Motion under 28 U.S.C. § 2255 to vacate his sentence based on allegations of ineffective assistance of counsel along with substantive challenges to his sentence. [Doc. 48]. In his petition, Mitchell identifies two grounds for ineffective assistance of counsel and three grounds that relate to the sentence. In part, Mitchell complains that his second court-appointed attorney failed to file an appeal despite Petitioner's specific request that he do so. That issue was referred to the Magistrate Judge who, after conducting an evidentiary hearing, filed a Report and Recommendation. [Doc. 69]. The Court has adopted the Report and Recommendation in full by separate order Dated this date, thereby denying Petitioner's claims pertaining to the issue of appeal. The Court will now address the remaining claims for relief, identified as ground one and grounds three through five.

         I.STANDARD OF REVIEW

         A prisoner in federal custody may file a motion to vacate, set aside, or correct a sentence pursuant to 28 U.S.C. § 2255 “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 court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). Relief under § 2255 is limited, however, to: (1) errors involving lack of jurisdiction; (2) constitutional violations; and (3) those non-constitutional errors constituting “fundamental defect[s] which inherently result[ ] in a complete miscarriage of justice.” Reed v. Farley, 512 U.S. 339, 348-49 (1994) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)); see also United States v. Addonizio, 442 U.S. 178, 185 (1979).

         Rule 4(b) of the Rules Governing Section 2255 Proceedings in the United States District Courts requires a district court to summarily dismiss a § 2255 motion if “it plainly appears from the face of the motion, the attached exhibits, and the record of the prior proceedings that the movant is not entitled to relief.” See also Pettigrew v. United States, 480 F.2d 681, 684 (6th Cir. 1973) (“A motion to vacate sentence under § 2255 can be denied for the reason that it states “only bald legal conclusions with no supporting factual allegations.”) (quoting Sanders v. United States, 373 U.S. 1, 19 (1963)). If the motion is not summarily dismissed under Rule 4(b), Rule 8 requires the court to determine, after a review of the answer and the records of the case, whether an evidentiary hearing is required. If a petitioner presents a factual dispute, then “the habeas court must hold an evidentiary hearing to determine the truth of the petitioner's claims.” Huff v. United States, 734 F.3d 600, 607 (6th Cir.2013) (quoting Valentine v. United States, 488 F.3d 325, 333 (6th Cir. 2007)). An evidentiary hearing is not required “if the petitioner's allegations cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact.” Valentine, 488 F.3d at 333 (quoting Arredondo v. United States, 178 F.3d 778, 782 (6th Cir.1999)).

         The Court found that an evidentiary was necessary to address whether Petitioner specifically instructed his counsel to file an appeal. The Court does not find that an evidentiary hearing is necessary to address the remaining claims in Petitioner's motion.

         II. BACKGROUND

         On October 15, 2014, the Grand Jury returned a three count indictment, charging Petitioner with the production of child pornography in violation of 18 U.S.C. § 2251(a), possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B), and failure to register as a sex offender in violation of 18 U.S.C. § 2250(a) and 42 U.S.C. §§ 16911 and 16913. [Doc. 6, Indictment]. On January 14, 2015, Petitioner entered a Plea Agreement with the United States, agreeing to plead guilty to production of child pornography in return for the United States dismissing the remaining counts [Doc. 20]. Petitioner admitted that “[b]ecause [he] was previously convicted of an offense under the laws of the Commonwealth of Virginia relating to sexual abuse, abusive sexual contact involving a minor or ward, the punishment for this offense [was] … [a] mandatory minimum term of imprisonment of twenty-five years up to a maximum of fifty years imprisonment….” [Doc. 20, Plea Agreement, pg. 1].

         The Plea Agreement also contained a direct appeal waiver and a Section 2255 waiver. The Plea Agreement provided as follows:

10. a) In consideration of the concessions made by the United States in this agreement and as further demonstration of the defendant's acceptance of responsibility for the offense committed, the defendant agrees not to file a direct appeal of the defendant's conviction or sentence except the defendant retains the right to appeal a sentence imposed above the sentencing guideline range determined by the district court or above any mandatory minimum sentence deemed applicable by the district court, whichever is greater.
b) In addition, the defendant knowingly and voluntarily waives the right to file any motions or pleadings pursuant to 28 U.S.C. § 2255 or to collaterally attack the defendant's conviction and/or resulting sentence. The parties agree that the defendant retains the right to raise, by way of collateral review under § 2255, claims of ineffective assistance of counsel or prosecutorial misconduct not known to the defendant by the time of the entry of judgment or changes in law made retroactive.

[Doc. 20, Plea Agreement, pg. 6]. The Court sentenced Petitioner to the mandatory minimum of 25 years, or 300 months. He did not appeal the sentence but did timely file a § 2255 motion on May 31, 2016.

         III. ANALYSIS

         In addition to the ineffective assistance claim that was referred to the Magistrate Judge for hearing, Petitioner claims that his first court-appointed attorneys were ineffective because they “failed to file any motions” and “then withdrew from defendant's counsel 11 day [sic] before sentencing” (ground one). Petitioner also raises three sentencing issues, found in grounds three through five. The first is his claim that the Court improperly used the Virginia conviction to enhance his sentence under 18 U.S.C. § 2251(e) (ground three). The second is that the Court improperly calculated Petitioner's criminal history points based on his bad check and petit larceny ...


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