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Mercer v. United States

United States District Court, E.D. Tennessee, Chattanooga

March 31, 2017





         Petitioner Gregory Alan Mercer (“Petitioner”), a federal prisoner represented by counsel, timely filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (the “2255 Motion”). (Doc. 696.)[1] He simultaneously filed a memorandum in support of his Petition. (Doc. 697.) The government has responded (Doc. 718), and Petitioner filed a reply (Doc. 725). Petitioner asserts his trial counsel and appellate counsel were constitutionally ineffective for failing to object to or appeal, respectively, the district court's decision to vacate Petitioner's guilty plea, and the district court's decision to reject Petitioner's request to plead guilty a second time. Petitioner also asserts his appellate counsel was constitutionally ineffective for failing to appeal the district court's ruling that Petitioner's conviction for driving while impaired counted toward his criminal history score. 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.

         I. STANDARDS

         A. Threshold Standard

         Under 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).

         A 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 (1982).

         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)).

         B. Standard for Ineffective Assistance of Counsel

         Petitioner raises several issues premised upon an “ineffective assistance of counsel” argument. 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, 734 F.3d at 606. 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).

         The 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)).

         Even if 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).

         Although 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.

         Strickland's two-pronged standard also governs claims of ineffective assistance of appellate counsel. Smith v. Robbins, 528 U.S. 259, 289 (2000). Appellate counsel has no duty to raise every non-frivolous issue that a criminal defendant requests. See Jones v. Barnes, 463 U.S. 745, 754 (1983); see also Smith v. Murray, 477 U.S. 527, 536 (1986) (observing that the “process of ‘winnowing out weaker arguments on appeal and focusing on' those most likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy”) (quoting Jones, 463 U.S. at 751-52); Engle v. Issac, 456 U.S. 107, 134 (1982) (observing that “the Constitution guarantees criminal defendants a fair trial and a competent attorney [but] does not insure that defense counsel will recognize and raise every conceivable constitutional claim”); Caver v. Straub, 349 F.3d 340, 348 (6th Cir. 2003) (noting that Strickland's performance standard does not require that counsel raise every non-frivolous issue).

         “Counsel's failure to raise an issue on appeal could only be ineffective assistance if there is a reasonable probability that inclusion of the issue would have changed the result of the appeal.” McFarland v. Yukins, 356 F.3d 688, 699 (6th Cir. 2004). Consequently, it is difficult to prove that an attorney violated the performance prong by presenting one argument on appeal rather than another, Robbins, 528 U.S. at 289, and any petitioner attempting to do so “must demonstrate that the issue not presented ‘was clearly stronger than issues that counsel did present.'” Caver, 349 F.3d at 348 (quoting Robbins, 538 U.S. at 289).


         In October 2009, the Grand Jury for the U.S. District Court for the Eastern District of Tennessee, Chattanooga Division, returned a superseding indictment against Petitioner and others. (Doc. 134.) This document named Petitioner in seven counts, charging him with:

Count One: conspiring to manufacture, distribute, and possess with the intent to distribute 50 grams of methamphetamine and 500 grams of a substance containing methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846;
Count Two: conspiring to possess list chemicals for use in the manufacture of methamphetamine, in violation of 21 U.S.C. §§ 841(c)(2) and 846;
Count Three: attempting to manufacture methamphetamine;
Count Four: possessing equipment, chemicals, products, and materials for use in the manufacture of methamphetamine; and
Counts 10-12: possessing pseudoephedrine for use in the manufacture of methamphetamine.


         Petitioner reached a plea bargain with the government and signed a written plea agreement in November 2010. (Doc. 558.) In doing so, Petitioner agreed to plead guilty to Count One. In exchange, the government agreed to move to dismiss the remaining six charges. (Id. at ¶¶ 1, 2.) By signing the agreement, Petitioner admitted that he was guilty of the offense, that he had knowingly joined and participated in the conspiracy and that his role involved between one-half and one and a half kilograms of methamphetamine. (Id. at ¶ 4(b).) He also admitted that he was “personally directly or indirectly responsible for the production and distribution of fifty grams or more of actual methamphetamine and five hundred grams or more of a mixture and substance containing a detectable amount of methamphetamine.” (Id. at ¶ 4(h).)

         In accordance with these promises and admissions, Petitioner appeared before a magistrate judge and pleaded guilty to Count One of the superseding indictment. During the plea colloquy, Petitioner said he had reviewed the written plea agreement and had gone “completely through” the factual basis. (Doc. 613.) Initially, Petitioner demonstrated some disagreement with the factual basis in the Plea Agreement providing that he had “distributed” methamphetamine:

The Court: Is there anything in the written factual basis in your plea agreement that you contend is in any way false or misleading?
Defendant: Well, that-yes and no. I've had a problem with the distributing part, because I was an end-user of methamphetamine. But [defense counsel] had said that if I shared my dope with somebody, that then I was distributing. But I-We've had a kind of back-and-forth on that, but I do understand it.

(Id. at 17 (emphasis added).) The Court then had a discussion with the Assistant United States Attorney (“AUSA”) assigned to the case about the information in the factual basis to support the government's contention that Petitioner was involved in a conspiracy to distribute methamphetamine. (Id. at 17-19.) Subsequently, the Court then referred Petitioner to Paragraph 4(h) of the Plea Agreement:

Court: Paragraph (h), Mr. Mercer, says that you admit that you were personally directly or indirectly responsible for the production and distribution of 50 grams or more of actual methamphetamine and 500 grams or more of a mixture and substance containing a detectable amount of methamphetamine.
* * *
You are the-I don't want to take your plea of guilty if you don't believe that you are guilty or if you did not do the acts that satisfy the elements of the offense. So I have to ask you a number of questions here. Now, the facts in the factual basis appear to support your guilty plea; and when I asked you if you agreed that that was, you said yes. But then when I asked you if there was anything in there that you contend was false, you indicated that you weren't involved in distribution. So I need to understand what-
Defendant: Right. That's-I don't know how to explain that. I wasn't on a playground selling it to kids. I wasn't doing anything like that with the stuff. I was the end-user. But yet this is going to follow me the rest of my life, and it's going to say that I distributed methamphetamine like I was a drug dealer. I don't have a problem claiming what I did with that part of it.
* * *
I mean, I see this is going to be a problem with it, is because this- this is going to follow me the rest of my life, like I said, and it says that I distributed drugs. Yes, I smoked methamphetamine with other people on the ...

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