United States District Court, E.D. Tennessee, Chattanooga
L. COLLIER, UNITED STATES DISTRICT JUDGE.
matter is before the Court on Petitioner, Tyron Walker's
(“Walker”), pro se motion to vacate, set aside or
correct his sentence pursuant to 28 U.S.C. § 2255 [Doc.
The Government filed a response in opposition [Doc. 46].
pled guilty and entered a guilty plea to one count of being a
felon in possession of a firearm. See [Doc. 34]
(Report and Recommendation) and [Doc. 36] (Order). This Court
sentenced Petitioner, who had two prior drug convictions, to
32 months imprisonment [Doc. 41]. Walker did not appeal this
conviction or sentence. Petitioner Walker did timely file
this § 2255 Motion. [Doc. 44].
STANDARD OF REVIEW
obtain relief pursuant to 28 U.S.C. § 2255, a petitioner
must demonstrate “(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) (quoting Mallett v. United
States, 334 F.3d 491, 496-97 (6th Cir. 2003)). He
“must clear a significantly higher hurdle than would
exist on direct appeal” and establish a
“fundamental defect in the proceedings which
necessarily results in a complete miscarriage of justice or
an egregious error violative of due process.” Fair
v. United States, 157 F.3d 427, 430 (6th Cir. 1998).
a petitioner alleging ineffective assistance of counsel must
satisfy a two-part test. Strickland v. Washington,
466 U.S. 668, 687 (1987); see also, Huff v.
United States, 734 F.3d 600, 606 (6th Cir. 2013). First,
he must establish, by identifying specific acts or omissions,
that counsel's performance was deficient and that counsel
did not provide “reasonable effective assistance,
” as measured by “prevailing professional
norms.” Rompilla v. Beard, 545 U.S. 374, 380
(2005). Counsel is presumed to have provided effective
assistance, and petitioner bears the burden of showing
otherwise. Mason v. Mitchell, 320 F.3d 604, 616-17
(6th Cir. 2003); see also Strickland, 466 U.S. at
689 (a reviewing court “must indulge a strong
presumption that counsel's conduct falls within the wide
range of reasonable professional assistance; that is, the
defendant must overcome the presumption that . . . the
challenged action might be considered sound trial
strategy”) (internal citation omitted).
petitioner must demonstrate “a reasonable probability
that, but for [counsel's acts or omissions], the result
of the proceedings would have been different.”
Strickland, 466 U.S. at 694. “An error by
counsel, even if professionally unreasonable, does not
warrant setting aside the judgment of a criminal proceeding
if the error had no effect on the judgment.”
Id. at 691; see also Smith v. Robbins, 528
U.S. 259, 285-86 (2000).
§ 2255 motion, Petitioner asserts two grounds in
alleging he received ineffective assistance of counsel at
sentencing. The Court finds that these claims do not warrant
the first claim, Petitioner claims counsel “failed to
object to the sentencing Court's application of the
‘recency' points and two points increase in
violation of the Sixth Amendment.” However, as the
Government noted in its Response [Doc. 46 at 4], the two
point enhancement in this case was not assessed pursuant to
the “recency” provision, but rather because
Petitioner committed the instant offense while he was
“under a criminal justice sentence” pursuant to
U.S.S.G. § 4A1.1(d). Therefore, Petitioner's
argument of ineffectiveness is without merit.
the Government's Response, the Court notes that
Petitioner has agreed and conceded the same in his Reply
brief [Doc. 48 at 2].
Petitioner's second ground of ineffectiveness relates to
Petitioner's claim that his counsel “failed to
request for concurrent sentencing with a recommendation to
the Bureau of Prisons for all time served credits from his
state sentence to be awarded to his federal sentence in
violation of the Sixth Amendment.”
Government argued in its Response that the power to grant
such “credit for time served” lies solely with
the Attorney General and the Bureau of Prisons, not the
District Court, and is made after sentencing, not during
sentencing [Doc. 46 at 4-5] (citations omitted). Petitioner
argues that he was arguing for a different type of
“credit, ” apparently achieved by an
“adjustment” via a downward departure that is
within the authority of the District Court. [Doc. 48 at 2-3].
Petitioner fails to develop an argument as to whether a
downward departure was warranted or whether such a departure
would achieve the results Petitioner claims, and the Court
notes that it has essentially ruled on this issue in its
previous Order denying Petitioner's Motion to run his
sentence concurrent with his state sentence. [Doc. 49].
the Court not only finds these arguments and Petitioner's
§ 2255 motion without merit, but also moot, in as much
as Petitioner has been released over one year, since April
2016, see [Docs. 44 at 7; 49, n.1; 52 at 2], and
jurisdiction of his ...