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Manuel v. United States

United States District Court, E.D. Tennessee

April 24, 2018




         This 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], [1] 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.

         I. Procedural and Factual Background

         A 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).

         On 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].

         II. Standard of Review

         This 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.

         When a 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 (1982).

         Claims 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).

         III. Analysis and Discussion

         Pursuant 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.

         Petitioner 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.

         A. Ground One: Mathis v. United States

         Petitioner 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.

         In 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).

         To 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. Id.

         At the outset the Court must note that the decision in Mathis is not retroactive, and therefore ...

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