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Spivey v. United States

United States District Court, W.D. Tennessee, Eastern Division

September 19, 2017

BOB SPIVEY, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER DENYING § 2255 MOTION, DENYING AS MOOT MOTION TO PROCEED WITHOUT PAYMENT OF FEES, DENYING CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

          J. DANIEL BREEN UNITED STATES DISTRICT JUDGE.

         Before the Court is the pro se motion of Petitioner, Bob Spivey, to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. § 2255 (“Petition”). (Case Number (“No.”) 14-cv-1209, Docket Entry (“D.E.”) 1.) For the reasons set forth below, the Petition is DENIED.[1]

         RELEVANT BACKGROUND

         On August 15, 2011, a federal grand jury, in No. 11-cr-10064, returned a one-count indictment against Petitioner and charged him with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). Assistant Federal Defender Diane Smothers was appointed to represent him. (No. 11-cr-10064, D.E. 7, 9.)

         Spivey pleaded guilty on December 1, 2011. (Id., D.E. 32.) At sentencing, he was determined to be an armed career criminal subject to a mandatory minimum sentence of 15 years' incarceration under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. §§ 924(e)(1), (e)(2)(A). (Id., Presentence Report (“PSR”) at 11, 13.) His ACCA status was based on three prior Tennessee convictions for “serious drug offense[s], ” namely: possession of cocaine with intent to deliver .5 grams or more; possession of cocaine/cocaine base with intent to deliver .5 grams or more; and facilitation of delivery of cocaine. (Id.) The government moved, pursuant to 18 U.S.C. § 3553, for a departure below the statutory mandatory minimum, and the Court imposed a sentence of 120 months' incarceration. (Id., D.E. 44.)

         THE PETITION

         The defendant filed his habeas petition on August 25, 2014, alleging that his trial attorney rendered ineffective assistance in two respects. (No. 14-cv-1209, D.E. 1 at PageID 4.) In Claim 1, he asserts that Attorney Smothers should have objected to the use of his facilitation conviction to enhance his sentence under the ACCA. (Id., citing United States v. Woodruff, 735 F.3d 445 (6th Cir. 2013).) In Claim 2, he alleges that counsel should have filed a direct appeal on his behalf. (Id.)

         DISCUSSION

         The government filed a response to the Petition, arguing that the claims are without merit.[2] (No. 14-cv-1209, D.E. 18.) Petitioner did not file a reply, although allowed to do so. (See id., D.E. 17 at PageID 83.) The Court concludes that he is not entitled to relief.

         1. Legal Standards

         The defendant seeks habeas relief in this case pursuant to 28 U.S.C. § 2255(a). The statute reads as follows:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

28 U.S.C. § 2255(a).

         A prisoner seeking to vacate his sentence under § 2255 “must allege either: (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) (citation and internal quotation marks omitted). A claim that the ineffective assistance of counsel has deprived a defendant of his Sixth Amendment right to counsel is an “error of constitutional magnitude.” Pough v. United States, 442 F.3d 959, 964 (6th Cir. 2006).

         An ineffective assistance claim is controlled by the standards stated in Strickland v. Washington, 466 U.S. 668, 687 (1984). To succeed on this claim, a movant must demonstrate two elements: (1) that counsel's performance was deficient, and (2) “that the deficient performance prejudiced the defense.” Id. “The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Id. at 686.

         To establish deficient performance, a person challenging a conviction “must show that counsel's representation fell below an objective standard of reasonableness.” Id. at 688. A court considering a claim of ineffective assistance must apply a “strong presumption” that counsel's representation was “within the wide range of reasonable professional assistance.” Id. at 689. The challenger's burden is to show ‚Äúthat counsel made errors so ...


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