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Washington v. United States

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

October 17, 2017

MARCUS WASHINGTON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          Leon Jordan United States District Judge.

         Marcus Washington (“Petitioner”) brings this pro se motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255, alleging that he received ineffective assistance of counsel at sentencing and seeking the latter type of permissible relief-a sentence correction [Doc. 126].[1]The United States has responded to the motion, and it supports granting Petitioner the remedy he seeks [Doc. 129]. After considering the § 2255 motion, the United States' response, and the record, the Court will GRANT Petitioner's § 2255 motion.

         I. BACKGROUND

         On April 7, 2015, a grand jury in the Eastern District of Tennessee filed a four-count indictment, charging Petitioner with sex trafficking, a violation of 18 USC §§ 1591(a)(1) and (b)(1) and 1594(a) (Counts 1 and 2); conspiracy to possess with intent to distribute oxycodone and cocaine, in violation of 21 USC §§ 846, 841(a)(1), 841(b)(1)(C) (Count 3); and possession with intent to distribute a mixture and substance containing oxycodone, a violation of 21 USC §§ 841(a)(1) and 841(b)(1)(B) (Count 4) [Doc. 1].

         By means of an information filed on November 22, 2016, the government charged Petitioner with conspiracy to commit commercial sex trafficking, in violation of 18 U.S.C. §§ 1591(a) and 1594(c) [Doc. 1 in No. 3:16-CR-161]. The next day, the government filed a Rule 11(c)(1)(C) plea agreement [Doc. 107]. A superseding indictment filed on December 2, 2016, made a minor change (replacing the word “or” in a term in the sex trafficking counts with the word “and”) in the indictment in No. 3:15-CR-59 [Doc. 32].[2]

         On December 7, 2016, Petitioner pled guilty to Counts 3 and 4 of the superseding indictment in case number 3:15-CR-059 and to Count 1 of the information in case number 3:16-CR-161 [Doc. 111]. A presentence investigation report (“PSR”) was prepared [Doc. 115] and then revised [Doc. 120]. On March 27, 2017, the Court accepted the plea agreement, sentenced Petitioner to a total 120-months' imprisonment, and dismissed the remaining counts on the government's motion [Doc. 123]. Petitioner did not file a direct appeal.

         On July 10, 2017, Petitioner filed this instant § 2255 motion [Doc. 129]. Petitioner asserts, as grounds for relief, that the Rule 11(c)(1)(C) plea agreement provided that his federal sentence was to be set concurrent with the state sentence he was then serving and that, when, in contravention of his plea agreement, his federal sentence was run consecutively to that state sentence, counsel failed to object. Petitioner maintains that, but for counsel's purported shortcoming, the Bureau of Prisons would not have denied him sentencing credit for the two years, five months, and twenty-four days he would have received had his federal sentence been set to correspond with the terms of his plea agreement [Id. pp. 4-5]. Petitioner does not seek to withdraw his guilty pleas because to do so, he contends, would cause him to suffer further prejudice. Instead, Petitioner asks to Court to correct his sentence to reflect that his federal sentence runs concurrent with his state sentence in Docket No. 96981.[3]

         The United States argues in its response that any alleged error in the issuance of Petitioner's sentence has been procedurally defaulted and that it, thus, cannot furnish a basis for granting the motion to vacate. The United States concedes, however, that Petitioner has proven that he received ineffective assistance from counsel at sentencing and concurs that the appropriate remedy is a corrected sentence to accord with the concurrent sentencing provision in his Rule 11(c)(1)(C) plea agreement.

         II. ANALYSIS

         The Court agrees with the United States' first argument. Petitioner's failure to raise the sentencing-error claim at an earlier time, when he could have raised such a claim, constitutes a procedural default. See Wainwright v. Sykes, 433 U.S. 72, 84 (1977) (observing that a failure to comply with state's contemporaneous objection rule at trial amounts to a procedural default). Petitioner, nevertheless, can secure review of his procedurally defaulted claim if he shows: (1) cause and actual prejudice to excuse his failure to raise the claim previously or (2) actual innocence of the crimes of conviction. Bousley v. United States, 523 U.S. 614, 622 (1998); Elzy v. United States, 205 F.3d 882, 884 (6th Cir. 2000) (finding that a failure to raise a plea-agreement claim at sentencing or on appeal amounts to a double procedural default).

         Petitioner has not attempted to make either showing and, thus, his unexcused procedural default forecloses collateral review of any error in the issuance of his federal sentence. See Elzy, 205 F.3d at 887 (determining that § 2255 review was barred on a claim where “the procedural default is manifest in the record”). Because the only sustainable § 2255 issue involves the assertions of ineffective-assistance, the Court proceeds to that claim, employing the applicable review standards.

         A. Standards of Review

         To obtain relief under 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 . . . 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)). The petitioner “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).

         B. ...


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