United States District Court, W.D. Tennessee, Eastern Division
ORDER DISMISSING § 2255 MOTION, DENYING
CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO APPEAL IN
THOMAS ANDERSON, CHIEF UNITED STATES DISTRICT JUDGE.
the Court is the amended motion of Petitioner, Frederick
Cole, to vacate, set aside, or correct his sentence pursuant
to 28 U.S.C. § 2255 (“Amended Petition”).
(Am. Pet., ECF No. 8.) For the reasons that follow, the
Amended Petition is DISMISSED as untimely.
November 9, 2011, a criminal information was filed in this
district charging Cole with conspiracy to traffic more than
one hundred kilograms of marijuana, in violation of 21 U.S.C.
§§ 846. (Information, United States v.
Cole, No. 1:11-cr-10080-STA-1 (W.D. Tenn.) (“Cr.
Case”), ECF No. 2.) On that same date, the defendant
appeared before the Court to waive his right to an indictment
and plead guilty to the information. (Waiver, Cr. Case, ECF
No. 3; Min. Entry, Cr. Case, ECF No. 5; Plea Agreement, Cr.
Case, ECF No. 6.)
was represented by attorney Mark Donahoe throughout a
three-day sentencing hearing. The Court heard testimony and
argument related, primarily, to the issues of drug quantity
and obstruction of justice. (Sent. Hrg. Tr., Cr. Case ECF
Nos. 41, 44, 50.) The Court found that, for purposes of
establishing Cole's base offense level, the total drug
quantity attributable to him fell within the 1000-3000
kilogram range. See 2011 United States Sentencing
Commission, Guidelines Manual
(“U.S.S.G.” or “Guidelines”), §
2D1.1. The Court also found that Cole's offense level
should be increased by two levels for obstruction of justice
involving his attempts to threaten federal officials involved
in his case. See U.S.S.G. § 3C1.1. After
granting a downward departure, the Court sentenced the
defendant to 240 months' incarceration, four years of
supervised release, and a $100 special assessment. (Judgment,
Cr. Case, ECF No. 34.) Judgment was entered on September 4,
subsequently filed a pro se notice of appeal. (Not.,
Cr. Case, ECF No. 39.) On December 12, 2012, the Sixth
Circuit granted the government's motion to dismiss the
appeal as untimely. United States v. Cole, No.
12-6392 (6th Cir. Dec. 12, 2012).
FILINGS AND § 2255 PETITION
February 11, 2013, Petitioner filed a motion in his criminal
case styled “Judicial Notice of Records and
Permission to Proceed In Forma Pauperis”
(“Motion for Transcripts”). (Mo. Trans., Cr.
Case, ECF No. 45.) By his motion, Cole requested “a
copy” of his sentencing transcripts “at the
expense of the government.” (Id. at 1.) He
explained that his attorney had “fail[ed] to mail his
transcripts” to him, and that he needed them in order
“to file a proper motion for relief pursuant to 18
U.S.C. § 3742 and § 2255.” (Id. at
2.) He “assert[ed] the transcripts contain sentencing
violations as depicted in the Supreme Court decision of
Shepard v. U.S., 544 U.S. 13 . . . and Townsend
v. Burke, 334 U.S. 736, 740-41[, ] . . . where it is
error to be sentenced base on inaccurate information.”
(Id.) The Court subsequently denied the motion.
(Order, Cr. Case, ECF No. 46.)
20, 2014, Petitioner, through retained counsel, filed his
§ 2255 Petition. (Pet., ECF No. 1.) He asserted a single
ground for relief and supplied no supporting facts:
Ground One: The petitioner received ineffective assistance of
counsel, in violation of his Sixth Amendment rights.
Supporting Facts: Present counsel has only recently begun
work on this case and would, if it please the Court, reserve
the right to file a further amended and supplemental motion
more fully setting out the defendant's claim.
(Id. at 4.) The Petition also referenced
Petitioner's Motion for Transcripts, characterizing it as
Coles' “initial § 2255 motion.”
(Id. at 5.)
review of the Petition on October 13, 2014, the Court noted
that, despite counsel's statement that he would
“further amend” the petition, he had not done
so. (Order, ECF No. 5 at 1.) The Court therefore ordered
Petitioner “to file any amendment or supplement he may
have to his § 2255 Motion within twenty-eight
days.” (Id.) The Amended Petition was not
filed until April 21, 2015, and was filed without leave of
Court. (Am. Pet., ECF No. 8.)
April 27, 2017, the Court allowed the filing of the Amended
Petition nunc pro tunc, granted counsel's motion
to withdraw, and ordered the government to respond to the
Amended Petition. (Order, ECF No. 12.)
the Amended Petition was prepared and submitted by counsel,
the specific factual allegations appear to be
Petitioner's own words. (See Am. Pet., ECF No. 8
at 4, 13.) With regard to many of the allegations, it is
difficult to discern what, exactly, Petitioner is trying to
claim. Although a petition prepared by counsel is not
entitled to the same liberal construction reserved for
pro se petitions, the Court nevertheless employs
some measure of liberality in construing Cole's claims as
1: Counsel was ineffective for failing to object to the
“inaccurate information” used at sentencing to
enhance his offense level under the Guidelines, specifically:
(a) With regard to the drug quantity involved, counsel should
have objected to the introduction of false statements
attributed to Timothy Davis relating to Petitioner's
involvement in the “truck full of drugs.”
(b) With regard to obstruction of justice, counsel should
have objected to hearsay evidence, introduced through a law
enforcement officer, that two people “accused
[Petitioner] of making threats against officials.”
(c) With regard to obstruction of justice, counsel should
have objected to the introduction of false statements by
co-defendant Angela Bass regarding Petitioner's threats.
(d) With regard to obstruction of justice, counsel should
have objected to the testimony of a fellow inmate who