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Nicley v. United States

United States District Court, E.D. Tennessee

March 30, 2018

JORDAN N. NICLEY, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER

          THOMAS A. VARLAN CHIEF UNITED STATES DISTRICT JUDGE

         Before the Court is Petitioner's pro se motion to vacate, set aside, or correct her sentence pursuant to 28 U.S.C. § 2255 [Doc. 102][1] and a memorandum [Doc. 103] in support thereof. Petitioner alleges that she received ineffective assistance of counsel both with regard to her guilty plea and at sentencing. The Government filed a response [Doc. 109] in opposition to the § 2255 motion, and Petitioner filed a reply [Doc. 110]. For the reasons discussed below, Petitioner's § 2255 motion [Doc. 102] is DENIED and DISMISSED WITH PREJUDICE.

         I. BACKGROUND

         Petitioner Jordan N. Nicley first appeared for arraignment on an Indictment [Doc. 4] on June 12, 2013. United States Magistrate Judge H. Bruce Guyton appointed Assistant Federal Defender Paula R. Voss and the Federal Defenders Services of Eastern Tennessee (“FDS”) to represent the Petitioner [Doc. 8].[2] A signed plea agreement [Doc. 21] was filed in the record on July 25, 2013. On September 4, 2013, the Court permitted the substitution of retained counsel, Attorney Joshua D. Hedrick, for Ms. Voss and FDS [Doc. 36].

         Also on September 4, 2013, Petitioner entered guilty pleas [Doc. 37] to one count of aiding and abetting armed bank robbery and one count of aiding and abetting the use, carrying, and brandishing of a firearm during and in relation to a crime of violence. The plea agreement contains the following statement of facts:

On May 31, 2013, at approximately 9:30 a.m., Defendants Kinnear and Batts entered the Sun Trust Bank, located at or near 2075 North Broadway, Knoxville, Tennessee, which is within the Eastern District of Tennessee. Defendants Kinnear and Batts wore construction-style hard hats, orange safety vests over orange t-shirts, and sunglasses, and brandished semi-automatic handguns. They pointed their firearms at the bank employees and threatened them, but they left the bank without obtaining any money. They fled the bank parking lot in a stolen green Ford Ranger pickup truck. They drove a short distance away, left the stolen green Ford Ranger pickup truck, and got into a white Honda CRV driven by Defendant Nicley.
Later, found inside Defendant Nicley's white Honda CRV was a diagram of the bank and a bank robbery plan, both of which Defendant Nicley wrote. Defendant Nicley admits that she helped plan the bank robbery, that she knew Defendants Kinnear and Batts planned to brandish firearms during the bank robbery, and that she drove the getaway vehicle.
At the time of the attempted bank robbery on May 31, 2013, the deposits of the Sun Trust Bank, located at or near 2075 North Broadway, Knoxville, Tennessee, were then insured by the Federal Deposit Insurance Corporation.

[Doc. 21 pp. 2-3].

         In the Presentence Investigation Report [Doc. 48], the United States Probation Office calculated Petitioner's guideline sentencing range of 46-57 months. However, the Probation Officer observed that “Count Two requires an 84-month term of imprisonment, which shall be imposed consecutively to any other term of imprisonment, pursuant to 18 U.S.C. § 924(c)(1)(A)(ii), therefore, the effective guideline range is 130 to 141 months” [Doc. 48 p. 10]. On February 20, 2014, the Court sentenced Petitioner to four months of imprisonment on Count One and 84 months of imprisonment on Count Two, to be served consecutively, for a total sentence of 88 months' incarceration. The Court entered a Judgment of conviction on February 26, 2014 [Doc. 71], and Petitioner did not file a direct appeal. On March 12, 2015, Petitioner timely filed the instant motion seeking to vacate her conviction and sentence.

         II. STANDARD OF REVIEW

         To 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 or she “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).

         III. ANALYSIS

         Petitioner presents two claims of ineffective assistance of counsel in her § 2255 motion: (1) that Attorney Voss advised her to cooperate prematurely, which resulted in Petitioner's guilty plea to aiding and abetting the brandishing of a firearm; and (2) that Attorney Hedrick incorrectly advised her as to the length of her potential sentence. In her supporting legal memorandum [Doc. 103], Petitioner raises a third allegation ...


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