United States District Court, E.D. Tennessee, Greeneville Division
MEMORANDUM AND ORDER
Jordan United States District Judge.
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.
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).
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
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
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].
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.
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 ...