United States District Court, E.D. Tennessee
RONNIE GREER UNITED STATES DISTRICT JUDGE
matter is before the Court on the “Motion To Vacate,
Set Aside, Or Correct A Sentence Pursuant to 28 U.S.C. §
2255, ” [Doc. 99],  filed by Shauntrell Manuel
(“Manuel” or “petitioner”). The
United States has responded in opposition, [Doc. 101]. On
January 16, 2018, the petitioner filed an amendment to his
§ 2255 motion. [Doc. 102]. The matter is now ripe for
disposition. The Court has determined that the files and
records in the case conclusively establish that the
petitioner is not entitled to relief under § 2255 and,
therefore, no evidentiary hearing is necessary. For the
reasons which follow, the petitioner's § 2255 motion
lacks merit, and the motion will be DENIED.
Procedural and Factual Background
sealed indictment was filed on June 10, 2014, [Doc. 1],
charging Manuel with distribution of a quantity of a mixture
and substance containing a detectable amount of cocaine base,
a Schedule II controlled substance in violation of 21 U.S.C.
§§ 841(a)(1) and (b)(1)(C) on nine identified
occasions (Counts One - Nine). In Count Ten, the Grand Jury
further charged Manuel with possession with the intent to
distribute of 28 grams of more of cocaine base in violation
of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). Count
Eleven charged Manuel with using and maintaining a place for
the purpose of distributing cocaine base in violation of 21
U.S.C. § 856(a)(1).
September 3, 2014, petitioner filed a pro se motion
to substitute his attorney, [Doc. 23], which was granted on
September 25, 2014, following a hearing on the motion, [Doc.
25]. On November 12, 2014, the United States filed a Plea
Agreement signed by the petitioner, in which Manuel agreed to
plea guilty to Count Ten of the indictment, with all other
Counts to be dismissed. [Doc. 28]. A Change of Plea hearing
was held before the Court on November 18, 2014. A sentencing
hearing was held on December 21, 2015 following the
withdrawal and replacement of petitioner's second
attorney, [Doc. 56]. Manuel was sentenced to 144 months of
imprisonment followed by 6 years of supervised release, [Doc.
81]. The judgment was entered on December 30, 2015, [Doc.
81], and Manuel filed his notice of direct appeal the next
day, [Doc. 83]. Manuel filed a pro se motion to
remove his third attorney as counsel for his appeal, [Doc.
85], which was denied by the Magistrate Judge, [Doc. 88]. The
Sixth Circuit Court of Appeals affirmed the District
Court's judgment on March 20, 2017, [Doc. 97]. Petitioner
timely filed his motion to vacate pursuant to 18 U.S.C.
§ 2255 on June 26, 2017, [Doc. 99].
Standard of Review
Court must vacate and set aside petitioner's sentence if
it finds that “the judgment was rendered without
jurisdiction, or that the sentence imposed was not authorized
by law or otherwise open to collateral attack, or that there
has been such a denial or infringement of the constitutional
rights of the prisoner as to render the judgment vulnerable
to collateral attack, . . .” 28 U.S.C. § 2255.
Under Rule 4 of the Governing Rules, the Court is to consider
initially whether the face of the motion itself, together
with the annexed exhibits and prior proceedings in the case,
reveal the movant is not entitled to relief. If it plainly
appears the movant is not entitled to relief, the court may
summarily dismiss the § 2255 motion under Rule 4.
defendant files a § 2255 motion, he must set forth facts
which entitle him to relief. Green v. Wingo, 454
F.2d 52, 53 (6th Cir. 1972); O'Malley v.
United States, 285 F.2d 733, 735 (6thCir.
1961). “Conclusions, not substantiated by allegations
of fact with some probability of verity, are not sufficient
to warrant a hearing.” O'Malley, 285 F.2d
at 735 (citations omitted). A motion that merely states
general conclusions of law without substantiating allegations
with facts is without legal merit. Loum v.
Underwood, 262 F.2d 866, 867 (6th Cir. 1959);
United States v. Johnson, 940 F.Supp. 167, 171 (W.D.
Tenn. 1996). To warrant relief under 28 U.S.C. § 2255
because of constitutional error, the error must be one of
constitutional magnitude which had a substantial and
injurious effect or influence on the proceedings. Brecht
v. Abrahamson, 507 U.S. 619, 637 (1993) (citation
omitted) (§ 2254 case); Clemmons v. Sowders, 34
F.3d 352, 354 (6thCir. 1994). See also United
States v. Cappas, 29 F.3d 1187, 1193 (7th
Cir. 1994) (applying Brecht to a § 2255
motion). If the sentencing court lacked jurisdiction, then
the conviction is void and must be set aside. Williams v.
United States, 582 F.2d 1039, 1041 (6th
Cir.), cert. denied, 439 U.S. 988 (1978). To warrant
relief for a non-constitutional error, petitioner must show a
fundamental defect in the proceeding that resulted in a
complete miscarriage of justice or an egregious error
inconsistent with the rudimentary demands of fair procedure.
Reed v. Farley, 512 U.S. 339, 354 (1994); Grant
v. United States, 72 F.3d 503, 506 (6th
Cir.), cert. denied, 517 U.S. 1200 (1996). 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
other than those of ineffective assistance of counsel are
procedurally defaulted if not raised on direct appeal.
Bousley v. United States, 523 U.S. 614, 621 (1998);
Peveler v. United States, 269 F.3d 693, 698
(6th Cir. 2001). “In the case where the defendant has
failed to assert his claims on direct appeal and thus has
procedurally defaulted, in order to raise them in a §
2255 motion he also must show either that (1) he had good
cause for his failure to raise such arguments and he would
suffer prejudice if unable to proceed, or (2) he is actually
innocent.” Regalado v. United States, 334 F.3d
520, 528 (6th Cir. 2003). See also Bousley, 523 U.S.
at 622-23. This hurdle a petitioner faces to excuse
procedural default is “intentionally high[, ]…
for respect for the finality of judgments demands that
collateral attack generally not be allowed to do service for
an appeal.” Elzy v. United States, 205 F.3d
882, 884 (6th Cir. 2000). Further, federal inmates are not
entitled to relitigate claims that were raised and considered
on direct appeal absent an intervening change in the law, or
other such extraordinary circumstance. Wright v. United
States, 182 F.3d 458, 467 (6th Cir. 1999); Jones v.
United States, 178 F.3d 790, 796 (6th Cir. 1999).
Analysis and Discussion
to his plea agreement, the petitioner has explicitly waived
the right to file a § 2255 motion, except for claims of
ineffective assistance of counsel or prosecutorial misconduct
not known to him by the time of the entry of judgment. [Doc.
28, ¶ 10(b)]. The shortcomings of counsel about which
the petitioner complains would have been known by him before
the entry of judgment. A defendant may waive any right, even
a constitutional right, if he does so knowingly and
voluntarily, and that a waiver provision in a plea agreement
is enforceable. See United States v. Fleming, 239
F.3d 761, 263-64 (6th Cir. 2001); United States v.
Ashe, 47 F.3d 770, 775-76 (6th Cir. 1995). “[A]
defendant's informed and voluntary waiver of the right to
collaterally attack a conviction and sentence is
enforceable.” In re Acosta, 480 F.3d 421, 422
(6th Cir. 2007); accord Davila v. United States, 258
F.3d 448, 450-52 (6th Cir. 2001); Watson v. United
States, 165 F.3d 486, 489 (6th Cir. 1999). Here, because
petitioner knowingly and voluntarily waived his right to file
a § 2255 motion with few exceptions, and these claims do
not fall within one of those exceptions, these claims have
been waived. Nonetheless, the Court will address the merits.
raises two issues in his § 2255 motion. First, he claims
that an intervening change in the law under Mathis v.
United States, 136 S.Ct. 2243 (2016) has taken place
that should retroactively change his designation as a career
offender. Second, petitioner argues that he received
ineffective assistance of counsel during his conviction and
sentencing process when his attorney did not object to
certain evidence obtained pursuant to the search of
petitioner's home. The Court will address each of these
grounds in turn.
Ground One: Mathis v. United States
argues that one of the predicate offenses that resulted in
his designation as a career criminal was improperly applied
in light of Mathis v. United States, 136 S.Ct. 2243
(2016). The conduct petitioner references is his 2006
conviction for sale or delivery of a controlled substance, in
violation of Tennessee Code Annotated § 39-17-417(a).
Petitioner argues that this statute qualifies as
“divisible” because “there is no way to
determine whether Manuel's conviction for the offense of
the sale of less than .05 grams of cocaine or the delivery of
that amount.” [Doc. 99]. The government, in its
response, [Doc. 101], argues that, even post-Mathis,
Tennessee Code Annotated § 39-17-417 remains a
controlled-substance offense under the career offender
guideline, and properly qualifies as a predicate offense. The
government further claims that petitioner's challenge to
his career offender classification is procedurally defaulted
by his failure to raise the issue on direct appeal. However,
petitioner bases his claim in part on Mathis, which
was decided following the petitioner's notice of direct
appeal on December 31, 2015. [Doc. 81]. Therefore the Court
will address the petitioner's claim under
Mathis v. United States, the Supreme Court held: (1)
a prior conviction cannot qualify as a predicate offense
under the enumerated-offense clause if an element of the
crime of conviction is made broader than an element of the
generic offense by way of an enumerated list of alternative
factual means for satisfying a single indivisible element;
and (2) Iowa's burglary statute-which defined
“structure” as “any building, structure,
[or] land, water, or air vehicle”-was incapable of
supporting ACCA enhancement because the provision was both
indivisible and overbroad. Mathis, 136 S.Ct. 2246,
2251-52, 2256-57 (2016). In reaching the first conclusion,
the Supreme Court expressly overruled United States v.
Ozier, 796 F.3d 597 (6th Cir. 2015). See Id. at
2251 n.1 (noting the existence of a circuit split about
whether the modified categorical approach could be used to
distinguish between differing factual means of satisfying a
single statutory element and reversing Sixth Circuit's
decision on that issue in Ozier).
determine whether a particular offense qualifies as a violent
felony under § 924(e), courts must first identify the
precise crime of conviction. Descamps v. United
States, 133 S.Ct. 2276, 2285 (2013). They do so by
employing a “categorical approach, ” under which
courts look “only to the statutory
definitions-elements-of a defendant's prior offense, and
not to the particular facts underlying [each individual]
conviction.” Id. at 2283 (internal
quotations omitted). If violation of the statute invariably
involves the use, attempted use, or threatened use of violent
force or falls within the generic definitions of burglary,
arson, or extortion, then the conviction categorically
qualifies as a violent felony and the courts' task is
complete. It is only when the statute criminalizes conduct in
excess of that covered by the use-of-physical-force and
enumerated-offense clauses, that courts must determine
whether the statute is divisible or indivisible. A divisible
statute is one that comprises multiple, alternative versions
of the crime. Id. at 2281. When faced with a
divisible statute, courts resort to the “modified
categorical approach, ” consulting “a limited
class of documents, such as indictments and jury
instructions, to determine which alternative [set of
elements] formed the basis of the defendant's prior
conviction.” Id. An indivisible statute is one
that contains a single crime, set of elements.
Mathis, 136 S.Ct. at 2249. Because the categorical
approach is concerned with elements and not the “facts
underlying [the] conviction, ” Descamps, 133
S.Ct. at 2285, it is important that courts distinguish
between alterative elements-divisible provisions to which the
modified categorical approach can be applied-and alternative
means for satisfying a single element-indivisible provisions
to which it cannot. Mathis, 136 S.Ct. at 2253-54.
Convictions under an overly broad, indivisible provision are
incapable of serving as predicate offenses under the ACCA.
outset the Court must note that the decision in
Mathis is not retroactive, and therefore ...