United States District Court, E.D. Tennessee
A. VARLAN CHIEF UNITED STATES DISTRICT JUDGE.
the Court now is Petitioner's pro se motion to
vacate, set aside, or correct his sentence pursuant to 28
U.S.C. § 2255 [Doc. 759]. The government filed a
response in opposition [Doc. 789]. For the reasons that
follow, the Court will deny the § 2255 motion.
was charged with conspiracy to engage in drug possession and
illegal possession of firearms for his role in a large-scale
drug trafficking organization [Docs. 8, 106,
224]. On June 19, 2009, a jury convicted
Petitioner of multiple counts of distributing controlled
substances and illegal possession of firearms [Doc. 537].
Court sentenced Petitioner to 548 months' imprisonment, a
sentence within the guidelines range [Doc. 700]. The Court of
Appeals for the Sixth Circuit affirmed the convictions and
sentence [Doc. 729]. Petitioner sought certiorari, which was
denied on October 7, 2013 [Doc. 746].
initial matter, the Court notes that Petitioner did not sign
the § 2255 motion. Instead, the motion was signed by
“S. Simpson, ” who claimed to be signing
“on behalf of” Petitioner, because
Petitioner's place of confinement had been on lockdown
since September 11, 2014. A motion must be “signed and
verified by the person for whose relief it is intended or by
someone acting in his behalf.” 28 U.S.C. § 2242.
The motion, however, does not explain whether Simpson was
authorized to sign on Petitioner's behalf. Despite the
lack of a signature by Petitioner, the Court will accept the
Motion and rule on it based on its substance, in the interest
obtain relief pursuant to 28 U.S.C. § 2255, a petitioner
must demonstrate “(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.” Short v. United States, 471 F.3d
686, 691 (6th Cir. 2006) (quoting Mallett v. United
States, 334 F.3d 491, 496-97 (6th Cir. 2003)). He
“must clear a significantly higher hurdle than would
exist on direct appeal” and establish a
“fundamental defect in the proceedings which
necessarily results in a complete miscarriage of justice or
an egregious error violative of due process.” Fair
v. United States, 157 F.3d 427, 430 (6th Cir. 1998).
presents one claim of ineffective assistance of counsel in
his § 2255 motion: that counsel was ineffective for
allowing Petitioner to “go to court” (trial) and
thus be convicted and sentenced to 548 months of imprisonment
petitioner alleging ineffective assistance of counsel must
satisfy the two-part test set forth in Strickland v.
Washington, 466 U.S. 668, 687 (1987). See Huff v.
United States, 734 F.3d 600, 606 (6th Cir. 2013)
(applying the Strickland test to an ineffective
assistance of counsel claim). First, the petitioner must
establish, by identifying specific acts or omissions, that
counsel's performance was deficient and that counsel did
not provide “reasonably effective assistance, ”
Strickland, 466 U.S. at 687, as measured by
“prevailing professional norms.” Rompilla v.
Beard, 545 U.S. 374, 380 (2005). Counsel is presumed to
have provided effective assistance, and a petitioner bears
the burden of showing otherwise. Mason v. Mitchell,
320 F.3d 604, 616-17 (6th Cir. 2003); see also
Strickland, 466 U.S. at 689 (stating that a reviewing
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 . . . the challenged
action might be considered sound . . . strategy”
(internal citation omitted)).
a petitioner must demonstrate “a reasonable probability
that, but for [counsel's acts or omissions], the result
of the proceedings would have been different.”
Strickland, 466 U.S. at 694. “An error by
counsel, even if professionally unreasonable, does not
warrant setting aside the judgment of a criminal proceeding
if the error had no effect on the judgment.”
Id. at 691; see also Smith v. Robbins, 528
U.S. 259, 285-86 (2000). If a petitioner fails to prove that
he sustained prejudice, the Court need not decide whether
counsel's performance was deficient. See United
States v. Hynes, 467 F.3d 951, 970 (6th Cir. 2006)
(holding that alleged “flaws” in trial
counsel's representation did not warrant new trial where
the claims, even if true, did not demonstrate that the jury
would have reached a different conclusion).
motion, Petitioner does not explain what counsel failed to do
or what he did but should not have done. It is well settled
that a petitioner must set forth adequate facts which entitle
him to relief. See, e.g., Short v. United
States, 504 F.2d 63, 65 (6th Cir. 1974) (explaining that
if “claims are stated in the form of conclusions
without any allegations of facts in support therefore,
” a § 2255 motion is “legally insufficient
to sustain review”); O'Malley v. United
States, 285 F.2d 733, 735 (6th Cir. 1961)
(“Conclusions, not substantiated by allegations of fact
with some probability of veracity, are not sufficient to
warrant a hearing”).
addition, Brooks cannot show that counsel was ineffective for
not securing a lesser sentence. The Court agrees with the
government that counsel argued vigorously on Petitioner's
behalf and opposed the two consecutive sentences for the
§ 924(c) offenses, arguing that both offenses occurred
during the time frame of the conspiracy. But the Sixth
Circuit held that imposing consecutive sentences for separate
§ 924(c) offenses was permitted because one “was
predicated on possession with intent to distribute an illegal
substance; the other was predicated on a conspiracy to
possess with intent to distribute an illegal
substance.” United States v. Martin, 516 F.
App'x 433, 444 (6th Cir. 2013).
the Court finds that Petitioner's motion [Doc. 759] is