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Glass v. United States

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

June 27, 2017

CARL LEE GLASS, Petitioner,



         Carl Lee Glass (“petitioner”) has filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, [Doc. 103].[1] He also has filed a motion to supplement the § 2255 motion, [Doc. 118]. For the reasons discussed in this memorandum and order, both motions are DENIED.

         I. Background

         Petitioner initially was charged in a criminal complaint with conspiring to distribute and to possess with the intent to distribute crack cocaine and with being a convicted felon in possession of a firearm.[2] Attorney Tim Moore of Federal Defender Services of East Tennessee was appointed to represent him.[3] An indictment ultimately was filed which charged petitioner with conspiring to distribute cocaine, i.e., powder cocaine (Count One); distributing cocaine on five separate dates (Counts Two-Six); being a convicted felon in possession of a firearm (Count Seven); and possessing a firearm in furtherance of the drug trafficking offenses described in Counts One, Five and Six (Count Eight).[4]

         Due to a belatedly-discovered conflict of interest, Federal Defender Services, i.e., attorney Moore, was allowed to withdraw, and Criminal Justice Act Panel attorney Jordan Pennington was appointed to represent petitioner.[5]

         On August 6, 2012, petitioner and the United States entered into a plea agreement in which petitioner pled guilty to Counts One and Eight, viz., conspiring to distribute cocaine and possessing a firearm in furtherance of that offense.[6] The plea agreement correctly recited that the punishment upon conviction of Count One, the conspiracy count, was a maximum of 20 years under 21 U.S.C. § 841(a)(1) and (b)(1)(C), and that the punishment on Count Eight, the firearm count, was a minimum mandatory five years to a maximum of life which was required by 21 U.S.C. § 924(c)(1)(A) to run consecutively to the sentence imposed for Count One.

         In paragraph 4 of the plea agreement, petitioner stipulated that he distributed at least 400 grams, but less than 500 grams, of cocaine. Petitioner also waived his right to directly appeal his conviction and sentence, with the exception of a sentence imposed which exceeded the greater of his guideline range or applicable minimum mandatory sentence. He also waived his right to collaterally attack his conviction or sentence under 28 U.S.C. § 2255 with the exception of any claim of ineffective assistance of counsel or prosecutorial misconduct unknown to him at the time the judgment was filed.[7]

         The presentence report (“PSR”) prepared by the United States Probation Office reflected that petitioner's base offense level for a conviction under Count One was 24 under § 2D1.1 of the 2012 version of the United States Sentencing Guidelines (“USSG”), based on his stipulation that he distributed between 400 and 499 grams of cocaine.[8] Three levels were deducted for his acceptance of responsibility and assistance to law enforcement, resulting in an adjusted base offense level of 21.[9] The base offense level for a conviction under Court Eight, the firearm count, was the statutorily required minimum mandatory and consecutive sentence of 21 U.S.C. § 924(c).[10]

         Petitioner's prior criminal convictions generated a criminal history score of 4.[11] Because he was under a sentence of probation imposed by a Georgia court for a felony conviction when he committed the offenses to which he pled guilty in this court, two points were added to his criminal history score.[12] The resulting criminal history score of 6 generated a criminal history category of III under chapter five, part A of USSG.[13]

         Based on his offense level of 21 and criminal history category of III, petitioner's guideline range for his conviction under Count One was 46 to 57 months.[14] An additional five years was required to be added to that sentence for his conviction under Count Eight.[15]

         The change of plea hearing was held on August 15, 2012.[16] Prior to the sentencing hearing, attorney Pennington moved to withdraw based upon petitioner's accusations that Mr. Pennington was providing ineffective assistance.[17] The Court granted the motion, appointing panel attorney Thomas Scott to assume representation of petitioner.[18]

         The sentencing hearing, at which petitioner was represented by attorney Scott, was held on May 20, 2013.[19] After that hearing, the Court sentenced petitioner to 46 months imprisonment on Count One, the bottom of his guideline range, and an additional 60 months for his conviction under Count Eight.[20]

         Notwithstanding the waiver of his right to appeal his conviction or sentence, petitioner filed a pro se appeal to the Sixth Circuit Court of Appeals.[21] That court appointed attorney Thomas Schad to represent petitioner on his appeal.[22] Attorney Schad filed an Anders brief, asserting that there were no meritorious grounds for the appeal. After reviewing the record, the court of appeals agreed with attorney Schad that there were no legitimate issues for an appeal. Based on that conclusion as well as petitioner's waiver of his right to pursue a direct appeal, the court of appeals dismissed the appeal.[23]

         II. Standard of Review For § 2255 motions

         This Court must vacate and set aside petitioner's sentence if it finds that “the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, . . .” 28 U.S.C. § 2255. Under Rule 4 of the Governing Rules, the Court is to consider initially whether the face of the motion itself, together with the annexed exhibits and prior proceedings in the case, reveal the movant is not entitled to relief. If it plainly appears the movant is not entitled to relief, the court may summarily dismiss the § 2255 motion under Rule 4. An evidentiary hearing is not necessary when the petitioner's claims “cannot be accepted as true because they are contradicted by the record, inherently incredible, or [are] conclusions rather than statements of fact, Arredondo v. United States, 178 F.3d. 778, 782 (6th Cir. 1999).

         When a defendant files a § 2255 motion, he must set forth facts which entitle him to relief. Green v. Wingo, 454 F.2d 52, 53 (6th Cir. 1972); O'Malley v. United States, 285 F.2d 733, 735 (6th Cir. 1961). “Conclusions, not substantiated by allegations of fact with some probability of verity, are not sufficient to warrant a hearing.” O'Malley, 285 F.2d at 735 (citations omitted). A motion that merely states general conclusions of law without substantiating allegations with facts is without legal merit. Loum v. Underwood, 262 F.2d 866, 867 (6th Cir. 1959); United States v. Johnson, 940 F.Supp. 167, 171 (W.D. Tenn. 1996).

         To warrant relief under 28 U.S.C. § 2255 because of constitutional error, the error must be one of constitutional magnitude which had a substantial and injurious effect or influence on the proceedings. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (citation omitted) (§ 2254 case); Clemmons v. Sowders, 34 F.3d 352, 354 (6th Cir. 1994). See also United States v. Cappas, 29 F.3d 1187, 1193 (7th Cir. 1994) (applying Brecht to a § 2255 motion). If the sentencing court lacked jurisdiction, then the conviction is void and must be set aside. Williams v. United States, 582 F.2d 1039, 1041 (6th Cir.), cert. denied, 439 U.S. 988 (1978). To warrant relief for a non-constitutional error, petitioner must show a fundamental defect in the proceeding that resulted in a complete miscarriage of justice or an egregious error inconsistent with the rudimentary demands of fair procedure. Reed v. Farley, 512 U.S. 339, 354 (1994); Grant v. United States, 72 F.3d 503, 506 (6th Cir.), cert. denied, 517 U.S. 1200 (1996).

         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). When a § 2255 Petitioner claims he was denied his sixth amendment right to effective assistance of counsel, it is noted that an attorney is presumed to have provided effective assistance, and the Petitioner bears the burden of showing that the attorney did not, Mason v. Mitchell, 320 F.3d 604, 616-17 (6th Cir. 2003). Petitioner must prove that specific acts or omissions by his attorney were deficient and that the attorney failed to provide “reasonably effective assistance, ” Strickland v.

         Washington, 466 U.S. 668, 687 (1987), which is measured by “prevailing professional norms, ” Rompilla v. Beard, 545 U.S. 374, 380 (2005). If Petitioner crosses this evidentiary hurdle, he must then show “a reasonable probability that, but for [the attorney's acts or omissions], the result of the proceedings would have been different.” Strickland, 466 U.S. at 694. In other words, he must show that he was prejudiced by the attorney's deficient representation:

To succeed on an ineffective assistance claim, a defendant must show that counsel's deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). [A court's ] review of counsel's performance is “highly deferential.” Id. at 689, 104 S.Ct. 2052. [The court must] “judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct.” Id. at 690, 104 S.Ct. 2052. The defendant “must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment.” Id. To establish “prejudice, ” a “defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052. “The likelihood of a different result must be substantial, not just conceivable.” Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 792, 178 L.Ed.2d 624 (2011). And, “[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice ... that course should be followed.” Strickland, 466 U.S. at 697, 104 S.Ct. 2052.

Docherty v. United States, 536 Fed.Appx. 547, 551 (6th. Cir. 2013).

         III. Petitioner's Motions

         A. The Original Motion, Doc. 103.

         Petitioner claims that all four of his attorneys were ineffective in varying ways.

         As to attorney Tim Moore of Federal Defender Services:

         Petitioner claims that Mr. Moore was ineffective for waiving a preliminary hearing.[24]Nowhere in petitioner's motion or accompanying memorandum[25] does petitioner further elaborate on this claim. He merely states that attorney Moore was ineffective for waiving a preliminary hearing, which Mr. Moore in fact did.[26]

         Firstly, petitioner's unsupported claim is conclusory and forces the Court to speculate as to any prejudice petitioner may have suffered. Secondly, and in that same vein, if a grand jury returns an indictment prior to the time a preliminary hearing is held, there is no longer a right to that preliminary hearing, United States v. Woods, 544 F.2d 242, 249 (6th Cir. 1976). The grand jury returned its indictment against petitioner on June 13, 2012, nine days after petitioner's arrest and initial appearance. Under Rule 5.1(c) of the Federal Rules of Criminal Procedure, a preliminary hearing would have been timely if held within 14 days of petitioner's initial appearance. By virtue of the return of the indictment well within that 14 day window, petitioner's right to a preliminary hearing evaporated and he suffered no prejudice because that hearing was waived.

         Thirdly, even if it is assumed that attorney Moore should have asked for a preliminary hearing; and if it also is assumed that the magistrate judge would have set the hearing on the particular date requested (by no means a certainty); and if it be assumed that the grand jury did not return its indictment before the date set by the magistrate judge for the preliminary hearing, the only thing petitioner would have lost by the lack of that preliminary hearing was de facto discovery, and there is no constitutional right to discovery in a federal criminal case. The only discovery to which a defendant is entitled in federal court is that listed in Federal Rule of Criminal Procedure 16, the Brady rule, and the Jencks Act, United States v. Presser, 844 F.2d 1275, 1285, n. 12 (6th Cir. 1988).[27] Again, there could have been no prejudice resulting from attorney Moore's waiver of a preliminary hearing.[28]

         As to attorneys Pennington and Scott:

         Petitioner claims that Pennington failed to investigate petitioner's claims; failed to file objections to the PSR; failed to put in writing the agreement between the government and petitioner; failed to interview potential witnesses; failed to file pretrial motions; accepted the government's version of the facts set out in the plea agreement as opposed to petitioner's version; failed to advise petitioner of the guideline range until after he had signed the plea agreement; induced petitioner to enter a plea of guilty; and forced petitioner to state to this court that he agreed with the plea agreement when in fact he did not.

         Petitioner claims that attorney Scott failed to investigate petitioner's clams; induced him to plead guilty; failed to object to the PSR; and failed to investigate evidence which would have shown that petitioner was innocent.

         (a). Petitioner first asserts that Pennington failed to investigate the case. This is a conclusory claim, and petitioner does not refer to any fact to support it. Assuming Pennington performed no independent investigation, what would that investigation have revealed that would have been of any benefit to petitioner? No one is in a better position than petitioner to supply the answer to this question, and he fails to do so. Moreover, during his change of plea hearing, he told this court, under oath, that he had discussed the case with his lawyer, and that he had told him everything he knew about it.[29]

         (b). Petitioner next claims that Pennington should have, but did not, file pretrial motions. The only motion which petitioner discusses is (presumably) a motion to suppress evidence seized from his residence pursuant to his consent to search the residence and a vehicle. He states that his consent was coerced because “the authorities had done entered and searched his residence and vehicle.”[30]

         As the documents attached to petitioner's motion reveal, the officers entered petitioner's residence to (1) retrieve his dogs, and (2) retrieve his children and clothing for the children, since petitioner's wife also had been arrested.[31] Even if it be assumed that protection of the animals and the children after petitioner and his wife had been taken into custody did not constitute exigent circumstances justifying a warrantless entry for the limited purposes just described, nothing in this record, including petitioner's motions and accompanying documents, indicate that the officers saw, much less seized, any incriminating evidence while in the house, or that they subsequently told petitioner that he should go ahead and consent to the search because they had already seen damning evidence. In other words, petitioner's claim that his consent was coerced due to the officers' brief entry to secure the children and dogs has no factual support, and is a mere conclusory allegation.

         With regard to the search of the car, in paragraph 4 of the plea agreement petitioner states that he consented to its search during the traffic stop, not some time later as he now claims. Further, he does not say what if anything was found in the vehicle. Based on the recitations in the plea agreement, it would seem that nothing was found.[32] The $1835 in currency was found on his person, and a search of an arrestee's person incident to his arrest requires no warrant, Chimel v. California, 395 U.S. 752, 762-63 (1969).

         Petitioner's claim that he consented to the search of his home and vehicle only because he was coerced is conclusory and has no indicia of factual support. In fact, it is directly contradicted by the records in this case. Beyond what is discussed above, petitioner does not say or even suggest what other motions should have been filed. There is no basis to suspect, much less find, that either Pennington or Scott rendered ineffective assistance for failing to file pretrial motions.

         (c). Petitioner claims that both attorney Pennington and attorney Scott should have filed objections to the PSR. Specifically, he argues that they should have objected to the amount of cocaine attributed to him, 400 to 499 grams. He insists that he distributed 30 grams of cocaine, at the most.

         First, although the attorneys filed no objections, petitioner himself objected at his sentencing hearing to the amount of cocaine attributed to him in the PSR, and as discussed hereafter the court dealt with his objection.[33] Therefore, even if the attorneys should be faulted for filing no ...

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