United States District Court, E.D. Tennessee, Knoxville
Jordan United States District Judge.
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].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
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].
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].
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.
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.
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.
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
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.
Standards of Review
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).