United States District Court, E.D. Tennessee, Greeneville
MEMORANDUM OPINION AND ORDER
RONNIE GREER UNITED STATES DISTRICT JUDGE
matter is before the Court on the motion of Richard Erling
Kelly, (“Kelly” or “petitioner”), to
vacate, set aside, or correct his sentence pursuant to 28
U.S.C. § 2255, [Doc. 100],  his supplemental motion,
[Doc. 113], the government's response in opposition,
[Doc. 118], and Kelly's reply brief, [Doc.121]. The
matter is now ripe for disposition. The Court has determined
that the files and records in the case conclusively establish
that the petitioner is not entitled to relief under §
2255 and that neither an evidentiary hearing nor the
appointment of counsel is necessary. For the reasons which
follow, the petitioner's § 2255 motion lacks merit,
the motion will be DENIED, and the § 2255 case
Factual and Procedural Background
was indicted by a federal grand jury on October 12, 2011, in
a one count indictment and charged for failure to register
under the Sex Offender Registration and Notification Act
(“SORNA”), 18 U.S.C. § 2250(a), [Doc. 1].
Federal Defender Services of East Tennessee, Inc.
(“FDS”) was appointed to represent Kelly, [Doc.
7], and he was ordered detained, [Doc. 8]. Approximately two
months after FDS was appointed to represent him, Kelly filed
a pro se motion to appoint new counsel, alleging a
litany of claims of “inadequate” representation,
[Doc. 14]. After a hearing before the Magistrate Judge, new
counsel, Jerry J. Fabus, Jr., was appointed, [Doc. 16].
Various pretrial motions were then filed, including a motion
to dismiss raising various constitutional claims, [Doc. 28].
The motion to dismiss was heard by the Magistrate Judge and
his report and recommendation that the motion be denied was
filed on April 5, 2012, [Doc. 34].
April 12, 2012, Kelly filed a notice of intent to plead
guilty, while preserving his right to appeal the denial of
his motion to dismiss and citing the Magistrate Judge's
April 5 report and recommendation, [Doc. 36]. On April 16,
2012, an agreed factual basis was filed, [Doc.38]. Petitioner
then filed, on April 19, 2012, an objection to the Magistrate
Judge's report and recommendation on his motion to
dismiss, [Doc. 41]. This Court overruled the objection and
adopted the report and recommendation on April 30, 2012,
United States would not consent to the entry of a conditional
plea of guilty by the defendant, see Fed. R. of Crim.
P. 11(a)(2), and the matter proceeded to a jury trial on
May 24, 2012. Defendant was found guilty, [Doc. 50, 51]. A
presentence investigation report (“PSR”) was
prepared and disclosed on November 2, 2012. On February 20,
2013, Kelly was sentenced to a term of imprisonment of 41
months followed by a 15-year term of supervised release,
[Doc. 75]. Judgment was entered in the case on March 4, 2013,
[Doc. 76]. Kelly then filed notices of appeal, [Docs. 78.79],
and this Court's final judgment was affirmed by the Sixth
Circuit Court of Appeals on March 20, 2014, [Doc. 84]. The
instant § 2255 motion was then timely filed on March 3,
2015, [Doc. 100].
Sixth Circuit set out a brief factual and procedural
background in the case in its opinion.
Kelly pled guilty to one count of sexual assault on April 18,
1990, in Flagstaff, Arizona.He was sentenced to fourteen
years in prison, and was released in August of 2003. On
December 22, 2010, Kelly reported to the New Orleans,
Louisiana Police Department (“NOPD”) and
registered as a sex offender. On June 8, 2011, Kelly informed
the NOPD that he planned to move to Memphis, Tennessee. When
the NOPD contacted the Memphis Police Department to follow up
on Kelly, the NOPD was informed that Kelly did not register
with Tennessee authorities. Kelly was subsequently arrested
by the Cocke County, Tennessee Sheriff's Department on
August 30, 2011.
Kelly was indicted on October 12, 2011, in the Eastern
District of Tennessee for failing to register as a sex
offender pursuant to SORNA. Kelly proceeded to trial before a
jury and was found guilty on May 24, 2012. For purposes of
sentencing, Kelly's base offense level was calculated to
be 16 by the United States Probation Office
(“USPO”). The USPO recommended that the district
court find Kelly's adjusted offense level to be 18,
adding a two-point enhancement for obstruction of justice.
The district court sustained Kelly's objection to this
enhancement, leaving his total offense level at 16. Kelly
requested a two-point reduction in his total offense level
for acceptance of responsibility. The district court denied
this request, citing the fact that Kelly factually contested
his guilt at trial.
The USPO assessed Kelly six criminal history points, placing
him in criminal history category III. Those points were
assessed as follows: three points for a 1989 Arizona sexual
assault conviction; two points for a 2009 Arizona failure to
register as a sex offender conviction; and one point for 2010
Arkansas convictions for possession of a controlled substance
with intent to distribute and possession of drug
paraphernalia with intent to use. Upon motion of the
Government, the district court determined that criminal
history category III underrepresented Kelly's actual
criminal history, and enhanced his criminal history to
category IV. The district court noted that, under the United
States Sentencing Guidelines (the “Guidelines”),
Kelly was assessed no criminal history points for convictions
of attempted rape, grand larceny, assault and battery with
intent to kill, and sexual assault because of the time that
had elapsed since those convictions, which occurred between
1974 and 1982.
During the district court's consideration of whether an
upward departure was warranted, Kelly emphasized the findings
of a 2010 psychological evaluation, which concluded that his
risk of recidivism was low. The district court discounted
this evaluation, noting that the psychologist reached his
conclusion based partly on Kelly's lack of convictions
from 2005 until his 2009 arrest for failure to register.
During this four-year period of time, Kelly evaded his sex
offender registration requirements after absconding from the
custody of the Arizona State Hospital in January of 2005,
where he was committed by the state for sex offender
treatment. The district court questioned how the psychologist
could reach his conclusion based on the facts cited, and
questioned the psychologist's “objectivity”
and “reliability.” (Sentencing Tr. at 34, Feb.
20, 2013, Dist. Ct. Dkt., ECF No. 82.) Additionally, the
district court stated that when making a decision as to
whether or not it should grant an upward departure in
Kelly's criminal history category, the district court
only had to find that either Kelly's criminal history was
underrepresented or Kelly's likelihood of recidivism was
underrepresented, but was not required to find both.
For a total offense level 16 and criminal history category
IV, the Guidelines range is a term of thirty-three to
forty-one months' imprisonment, and a term of supervised
release of five years to life. The district court sentenced
Kelly to forty-one months in prison and fifteen years of
United States v. Kelly supervised release. Kelly now
challenges the procedural and substantive reasonableness of
the sentence imposed by the district court.
United States v. Kelly, 560 F.Appx. 501, 502-03,
2014 WL 1088283 (6th Cir. 2014).
Standard of Review
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.
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).
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).
raises seven grounds for relief in his original and
supplemented § 2255 motions. He states these grounds as
1. Ground One- Ineffective assistance of trial counsel by (a)
failure to properly articulate all constitutional arguments
prior to trial, (b) failure to file sufficient pre-trial
motions; (c) failure to challenge jury instructions; (d)
failure to subpoena Cocke County Sheriff's Department
Capitan Derrick Woods; (e) failure to subpoena Cocke County
dispatcher; (f) failure to establish “how and
when” petitioner knew that Woods had been provided the
Cosby address where Kelly was arrested; (g) failure to
cross-examine Detective Hughes about his vacations; (h)
failure to call Kelly's wife as a witness to testify as
to his “alibi, ” and (i) failure to challenge his
Tier III base offense level.
2. Ground Two-Ineffective assistance of appellate counsel by
failing to raise (a) incorrect base offense level based on
Tier III offense; (b) two point reduction in the offense
level for acceptance of responsibility; (c) the Court's
upward departure on the basis that it was (1) contrary to the
guidelines; (2) the “facts” of defendant's
1973 juvenile offense; (3) his 1976 Indiana assault
conviction; (4) “other” false information in the
PRS; and (5) the government was allowed to over report
petitioner's criminal history; and (d) failed to argue
Due Process, Commerce Clause, Ex Post Facto, and Equal
3. Ground Three-18 U.S.C. § 2250 is unconstitutional as
applied in that (a) the Court applied an automatic finding of
dangerousness; and (b) the Court was estopped from finding
that his 1990 conviction for sexual abuse was a dangerous
offense based on the principles of res judicita, and
4. Ground Four-The term of supervised release and sex
offender conditions imposed by the Court were in error.
5. Ground Five-Denial of the right to confront witnesses.
6. Ground Six-Abuse of discretion in that the Court (a)
applied the wrong base offense level based on a Tier III
offense; (b) illegally departed upward; and (c) judicial
7. Ground Seven-- Prosecutorial misconduct in that the
prosecution (a) misrepresented facts; (b) sought increased
sentence in retaliation for defendant's exercise of his
right to trial; (c) provided false criminal history
information; (d) engaged in a pattern of interrupting
petitioner while he was testifying; and (e) elicited
inadmissible hearsay testimony.
Standard for Ineffective Assistance of Counsel
§ 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 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.
__, 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).
Ground One: Ineffective Assistance of Trial Counsel
the Court can tell, petitioner makes nine allegations of
ineffective of counsel related to his trial and sentencing as
set forth above as GROUND ONE, subparts (a) through (i). The
Court will address these claims in turn.