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Kelly v. United States

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

July 25, 2017




         This 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], [1] 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 DISMISSED.

         I. Factual and Procedural Background

         Kelly 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].

         On 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, [Doc. 43].

         The 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].

         The 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).

         II. Standard of Review

         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.

         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).

         III. Analysis

         Kelly raises seven grounds for relief in his original and supplemented § 2255 motions. He states these grounds as follows:

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 Protection challenges.
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 collateral estoppel.
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 bias.
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.

         A. Standard for Ineffective Assistance of Counsel Claims

         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 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).

         B. Ground One: Ineffective Assistance of Trial Counsel

         As best 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.

         1. Grounds ...

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