United States District Court, E.D. Tennessee, Chattanooga
S. MATTICE, JR. UNITED STATES DISTRICT JUDGE.
March 25, 2013, Petitioner Brandon Morris
(“Petitioner”) was sentenced to eighty-seven
months' imprisonment for conspiracy to manufacture and
distribute twenty-eight grams or more of cocaine base
(“crack”), in violation of 21 U.S.C. §§
846, 841(a)(1), and 841(b)(1)(B). (Doc. 56). He subsequently
filed a pro se motion to vacate, set aside, or
correct his sentence pursuant to 28 U.S.C. § 2255 (the
“2255 Motion”). (Doc. 65). For the reasons that
follow, the Court finds an evidentiary hearing on the 2255
Motion is not necessary, and the 2255 Motion shall be DENIED.
STANDARD of REVIEW
28 U.S.C. § 2255(a), a federal prisoner may make a
motion to vacate, set aside, or correct his judgment of
conviction and sentence, if he claims that the sentence was
imposed in violation of the Constitution or laws of the
United States; that the court lacked jurisdiction to impose
the sentence; or that the sentence is in excess of the
maximum authorized by law, or is otherwise subject to
collateral attack. As a threshold standard, to obtain
post-conviction relief under § 2255 a motion must
allege: (1) an error of constitutional magnitude; (2) a
sentence imposed outside the federal statutory limits; or (3)
an error of fact or law so fundamental as to render the
entire criminal proceeding invalid. Mallett v. United
States, 334 F.3d 491, 496-97 (6th Cir. 2003); Moss
v. United States, 323 F.3d 445, 454 (6th Cir. 2003).
petitioner bears the burden of demonstrating an error of
constitutional magnitude which had a substantial and
injurious effect or influence on the criminal proceedings.
Reed v. Farley, 512 U.S. 339, 353 (1994); Brecht
v. Abrahamson, 507 U.S. 619, 637-38 (1993). 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,
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, any attached exhibits,
and the record of the prior proceedings that the moving party
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(a) 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
Standard for Ineffective Assistance of Counsel
raises several ineffective assistance of counsel issues.
Ineffective assistance of counsel is a recognized
constitutional violation that, when adequately shown,
warrants relief under § 2255. The two-prong test set
forth in Strickland v. Washington, 466 U.S. 668, 687
(1984), governs claims of ineffective assistance of counsel
raised pursuant to 28 U.S.C. § 2255. Huff v. United
States, 734 F.3d 600, 606 (6th Cir. 2013). That test
provides that, to demonstrate a violation of the Sixth
Amendment right to effective assistance of counsel, “a
defendant must establish that his attorney's performance
was deficient and that the deficient performance prejudiced
the defense.” Id. (citing Strickland,
466 U.S. at 687).
first prong requires a petitioner to show his attorney's
performance was deficient by demonstrating that counsel's
“representation fell below an objective standard of
reasonableness.” Strickland, 466 U.S. at 688.
Stated another way, the petitioner must show “that
counsel made errors so serious that counsel was not
functioning as the ‘counsel' guaranteed the
defendant by the Sixth Amendment.” Id. at 687.
The Supreme Court has “declined to articulate specific
guidelines for appropriate attorney conduct and instead [has]
emphasized that the proper measure of attorney performance
remains simply reasonableness under prevailing professional
norms.” Huff, 734 F.3d at 606 (alterations in
original) (quoting Wiggins v. Smith, 539 U.S. 510,
521 (2003)). A reviewing court must be “highly
deferential” to counsel's performance, because
[a] fair assessment of attorney performance requires that
every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel's
challenged conduct, and to evaluate the conduct from
counsel's perspective at the time. Because of the
difficulties inherent in making the evaluation, a court must
indulge a strong presumption that counsel's conduct falls
within the wide range of reasonable professional assistance;
that is, the defendant must overcome the presumption that,
under the circumstances, the challenged action “might
be considered sound trial strategy.”
Strickland, 466 U.S. at 689 (quoting Michel v.
Louisiana, 350 U.S. 91, 101 (1955)).
a petitioner is successful in overcoming that presumption, he
must still satisfy the second prong of the
Strickland test, i.e., prejudice. Thus, a
petitioner must show not only that his counsel's
representation was objectively unreasonable, but also that he
was prejudiced by counsel's deficiency because there
exists “a reasonable probability that, but for
counsel's unprofessional errors, the result of the
proceeding would have been different.” McPhearson
v. United States, 675 F.3d 553, 563 (6th Cir. 2012)
(quoting Strickland, 466 U.S. at 694).
the Strickland Court emphasized that both prongs
must be established in order for the petitioner to meet his
burden, it held there is no reason for a court deciding an
ineffective assistance claim to approach the inquiry in the
same order or even to address both components of the inquiry.
Strickland, 466 U.S. at 697. “If it is easier
to dispose of an ineffectiveness claim on the ground of lack
of sufficient prejudice, which we expect will often be so,
that course should be followed.” Id.
absent clear and convincing evidence to the contrary, a
defendant is bound by his or her plea agreement and
representations made under oath during a plea colloquy.
Baker v. United States, 781 F.2d 85, 90 (6th Cir.
1986) (“[W]here the court has scrupulously followed the
required procedure, the defendant is bound by his statements
in response to that court's inquiry.”) (internal
quotation marks and citations omitted). In Blackledge v.
Allison, the Supreme Court explained the importance and
weight of representations made during the plea hearing,
For the representations of the defendant, his lawyer, and the
prosecutor at such a hearing, as well as any findings made by
the judge accepting the plea, constitute a formidable barrier
in any subsequent collateral proceedings. Solemn declarations
in open court carry a strong presumption of verity. The
subsequent presentation of conclusory allegations unsupported
by specifics is subject to summary dismissal, as are
contentions that in the face of the record are wholly
Blackledge, 431 U.S. 63, 73-74 (1977).
24, 2012, Petitioner was indicted in a multi-count Indictment
(Doc. 3) for: (1) Count One: conspiracy to manufacture and
distribute twenty-eight grams or more of cocaine base, in
violation of 21 U.S.C. §§ 846, 841(a)(1), and
841(b)(1)(B); (2) Counts Two and Three: distribution of
cocaine base, in violation of 21 U.S.C. §§
841(a)(1), and 841(b)(1)(C); (3) Count Four: aiding and
abetting the distribution of cocaine base, in violation of 21
U.S.C. §§ 841(a)(1), and 841(b)(1)(C), and 18
U.S.C. § 2; (4) Count Seven: possession of a firearm and
ammunition by one previously convicted in court of a
misdemeanor crime of domestic violence, in violation of 18
U.S.C. 922(g)(9); and (5) Count Nine: knowingly and
intentionally using a building/residence for the purpose of
unlawfully manufacturing, storing, and distributing cocaine
base, in violation of 21 U.S.C. 856(a)(2). (Doc. 3 at 1-4).
The United States also charged that Counts One, Two, Three,
Four, and Nine of the Indictment subjected Petitioner to the
forfeiture of his residence, the Real Property located at
3711 Sumter ...