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Chalk v. United States

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

March 1, 2018

CAROL CHALK Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          HARRY S. MATTICE, JR. UNITED STATES DISTRICT JUDGE

         Petitioner Carol Chalk (“Petitioner”) filed a pro se motion to vacate, set aside, or correct her sentence pursuant to 28 U.S.C. § 2255 (the “2255 Motion”) [Doc. 450], with a supporting memorandum [Doc. 451] and supplement [Doc. 463].[1] The United States of America (the “government”) filed a response in opposition [Doc. 499]. This matter is now ripe. For the reasons that follow, the Court finds an evidentiary hearing on the 2255 Motion is not necessary, and the 2255 Motion shall be DENIED.

         I. BACKGROUND

         Pursuant to a written Plea Agreement, Petitioner pleaded guilty to a lesser included offense of conspiring to distribute cocaine base (“crack”), in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(C) [Docs. 173, 347]. As stated in the Presentence Investigation Report (“PSR”), Petitioner sold a total of 117 grams of crack cocaine to a confidential informant in three controlled buys [Doc. 347 at Page ID # 1047 at ¶ 9] and was a “significant source of cocaine powder and crack in the Chattanooga” area, [Id. at ¶ 6], A court-authorized wiretap revealed Petitioner used co-defendant Connie Moore to complete drug transactions and collect money owed for drugs [Id. at ¶ 10 (“Phone conversations targeted during the wiretap indicate that Chalk used Connie Moore to complete transactions in the amounts of $20 and $30 and to pick up money owed for drugs. Moore lived at Chalk's residence and relied upon Chalk for a place to live. She also received small amounts of crack for her personal use as payment for her role.”)]. Petitioner stipulated that she was “responsible for distributi[ng] . . . at least 280 grams of cocaine base during the course of the charged conspiracy.” [Doc. 173 at Page ID # 367 & Doc. 347 at Page ID # 1047 at ¶ 11]. As such, her base offense level was 32 [Doc. 347 at Page ID # 1048 at ¶ 16], and with a two-level role enhancement and a three-level reduction for acceptance of responsibility, her total offense level was 31 [Id. at Page ID # 1048-49 at ¶¶ 19, 23-25]. Given her criminal history score of zero, she had a criminal history category of I [Id. at ¶ 31], and the corresponding range for incarceration under the applicable United States Sentencing Guidelines Manual (the “Guidelines” or “U.S.S.G.”) was 108 to 135 months' imprisonment [Id. at Page ID # 1052 at Page ID # ¶ 50].

         Petitioner requested a below-Guidelines sentence of 46 months in light of several factors, including her diminished mental capacity [Doc. 334]. The Addendum to the PSR acknowledged Petitioner's “mild retardation, ” but noted Petitioner had not established her eligibility for a departure under U.S.S.G. § 5H1.3 [Doc. 348 at Page ID # 1056-57].

         As part of the plea agreement, the parties explicitly acknowledged a proposed Guidelines amendment-which later became Amendment 782-to reduce by two levels the base offense level for most drug offenses [Doc. 173 at Page ID # 369, at ¶ 8]. Although the proposed amendment had not yet been adopted by the Sentencing Commission, the government agreed that it would not oppose a two-level downward variance on that basis. In return, Petitioner agreed that if the variance was granted, she would not “later seek a further reduced sentence pursuant to 18 U.S.C. § 3582(c)(2) if and when the two-level reduction is adopted and made retroactive by the Sentencing Commission.” [Id.]. The PSR recognized the parties' agreement to this two-level downward variance [Doc. 347 at Page ID # 1053 at ¶ 52].

         The Court imposed a below-Guidelines sentence of 70 months' imprisonment followed by three years of supervised release [Doc. 375]. Petitioner did not appeal; instead, she timely filed her 2255 Motion.

         II. STANDARD of REVIEW

         A. Threshold Standard

         Under 28 U.S.C. § 2255(a), a federal prisoner may make a motion to vacate, set aside, or correct his or her judgment of conviction and sentence, if he claims that the sentence was imposed in violation of the Constitution or laws of the United States; that the court lacked jurisdiction to impose the sentence; or that the sentence is in excess of the maximum authorized by law, or is otherwise subject to collateral attack. As a threshold standard, to obtain post-conviction relief under § 2255 a motion must allege: (1) an error of constitutional magnitude; (2) a sentence imposed outside the federal statutory limits; or (3) an error of fact or law so fundamental as to render the entire criminal proceeding invalid. Mallett v. United States, 334 F.3d 491, 496-97 (6th Cir. 2003); Moss v. United States, 323 F.3d 445, 454 (6th Cir. 2003).

         A petitioner bears the burden of demonstrating an error of constitutional magnitude which had a substantial and injurious effect or influence on the criminal proceedings. Reed v. Farley, 512 U.S. 339, 353-54 (1994); Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993). In order to obtain collateral relief under § 2255, a petitioner must clear a significantly higher hurdle than would exist on direct appeal. United States v. Frady, 456 U.S. 152, 166 (1982).

         Rule 4(b) of the Rules Governing Section 2255 Proceedings in the United States District Courts requires a district court to summarily dismiss a § 2255 motion if “it plainly appears from [the face of] the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief.” See also Pettigrew v. United States, 480 F.2d 681, 684 (6th Cir. 1973) (“A motion to vacate sentence under § 2255 can be denied for the reason that it states ‘only bald legal conclusions with no supporting factual allegations.'”) (quoting Sanders v. United States, 373 U.S. 1, 19 (1963)). If the motion is not summarily dismissed under Rule 4(b), Rule 8(a) requires the court to determine, after a review of the answer and the records of the case, whether an evidentiary hearing is required. If a petitioner presents a factual dispute, then “the habeas court must hold an evidentiary hearing to determine the truth of the petitioner's claims.” Huff v. United States, 734 F.3d 600, 607 (6th Cir. 2013) (quoting Valentine v. United States, 488 F.3d 325, 333 (6th Cir. 2007)). An evidentiary hearing is not required “if the petitioner's allegations cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact.” Valentine, 488 F.3d at 333 (quoting Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999)).

         B. Standard for Ineffective Assistance of Counsel

         Petitioner raises ineffective assistance of counsel issues. Ineffective assistance of counsel is a recognized constitutional violation that, when adequately shown, warrants relief under § 2255. The two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984), governs claims of ineffective assistance of counsel raised pursuant to 28 U.S.C. § 2255. Huff v. United States, 734 F.3d 600, 606 (6th Cir. 2013). That test provides that, to demonstrate a violation of the Sixth Amendment right to effective assistance of counsel, “a defendant must establish ...


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