United States District Court, E.D. Tennessee
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. 122],  filed by Frank Gaitor
(“Gaitor” or “petitioner”). The
United States has responded in opposition, [Doc. 126]. On
June 16, 2017, the petitioner filed a motion to appoint
counsel to determine whether he had “a claim due to the
Mathis ruling.” [Doc. 131]. This motion was
granted in part and denied in part by this Court: the Court
declined to appoint counsel as no evidentiary hearing had
been scheduled in the case, and “liberally construe[d]
this motion as a supplement to Petitioner's § 2255
motion that seeks relief under Mathis for the
reasons set forth therein.” [Doc. 132]. The government
responded in opposition, claiming petitioner is not entitled
to relief. [Doc. 133]. Therefore, this memorandum opinion
will address petitioner's arguments from his original
filing, and examine his claim under Mathis v. United
States, 136 S.Ct. 2243 (2016).
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
Procedural and Factual Background
sealed indictment was filed on April 12, 2011, [Doc. 1],
charging Gaitor and his co-defendant, Myoka Michelle Ingram
(“Ingram”) with conspiracy to distribute and
possess with the intent to distribute 28 grams or more of
cocaine base in violation of 21 U.S.C. §§ 846,
841(a)(1) and (b)(1)(B) (Count One), and aiding and abetting
each other in the distribution of cocaine base in violation
of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) (Count
Two). Gaitor was also charged with the distribution of a
quantity of a mixture and substance containing a detectable
amount of cocaine base in violation of 21 U.S.C. §§
841(a)(1) and (b)(1)(C) on seven identified occasions (Counts
Three - Nine).
August 18, 2011, counsel for petitioner filed a motion to
withdraw as counsel, as a conflict of interest had arisen
that would prevent him from representing petitioner. [Doc.
26]. This motion was granted, [Doc. 29], and another attorney
was appointed to represent petitioner. However, petitioner
filed a pro se motion to appoint new counsel on
October 5, 2011, [Doc. 45], and a hearing was held to
consider the motion on October 7, 2011. This Court granted
petitioner's motion and appointed a new attorney. [Doc.
47]. On October 12, 2011, the Grand Jury returned a
Nine-Count superseding indictment as to Gaitor and Ingram.
[Doc. 48]. The superseding indictment was nearly identical to
the original indictment, but included a longer time frame in
the conspiracy charge in Count One: the date listed as the
beginning date for the conspiracy was expanded from December
28, 2010, [Doc. 1], to September 2010. [Doc. 48]. Petitioner
was never arraigned on the superseding indictment.
November 27, 2011, counsel for the petitioner filed both a
motion to withdraw as attorney at the direction of the
petitioner, [Doc. 53], and a signed plea agreement. [Doc.
56]. This Court held a hearing on November 29, 2011, the day
before the petitioner's trial. At the hearing, the
petitioner orally withdrew his request to remove his
attorney, and expressed an intention to plead guilty rather
than proceed to trial. [Doc. 107]. After a lengthy plea
colloquy, the defendant pled guilty to Count One of the
indictment, with the other Counts dismissed by the
proceedings were held on May 31, 2012. Petitioner was
sentenced to 188 months imprisonment followed by a 12-year
term of supervised release. [Doc. 86]. Petitioner timely
appealed. [Doc. 88]. On direct appeal, petitioner raised the
1) The district court failed to recognize its ability to
depart downward on the basis that Gaitor's criminal
history category over-represented his prior crimes; 2) the
government filed a notice to enhance sentence pursuant to 21
U.S.C. § 851, in violation of the parties' plea
agreement; 3) the career offended designation resulted in a
disparate sentence; 4) the court used a prior conviction that
no longer qualifies as a controlled substance offense for
career offender purposes; 5) his sentence, under the career
offender provision, was the result of impermissible
double-counting; and 6) his sentence is substantively
[Doc. 114]. The Sixth Circuit rejected these arguments, and
found that petitioner's guilty plea, including a valid
appellate waiver, was knowing and voluntary. [Id.
“Given the district court's colloquy, the validity
of Gaitor's plea cannot be challenged in good
faith.”]. Petitioner filed a writ of
certiorari, which was denied by the U.S. Supreme
Court on October 8, 2014. [Doc. 117].Petitioner filed his
§ 2255 motion on October 2, 2015. [Doc.
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 (6th Cir. 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 (6th
Cir. 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. 1978), 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. 1996), 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).
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.
56, ¶ 15(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 the following grounds for relief in his
§ 2255 motion:
Ground One: Whether this Court must vacate the
petitioner's plea to Count One of the ‘original
indictment' in light of the fact that the Court issued a
superseding indictment prior to the guilty plea which the
petitioner was never arraigned on in violation of due
Ground Two: The defense counsel was ineffective for failing
to file an appeal of the issues as requested upon the
petitioner's claim that the plea was to be placed under
advisement pending the receipt of the PSR and thereby could
not be accepted at the change of plea hearing[.]
Ground Three: Counsel was ineffective during plea
negotiations and unprepared for the potential trial and plea
Ground Four: Attorney was ineffective by not asking the Court
to address the Motion to Withdraw filed.
Ground Five: Attorney failed to appeal the disparity in
sentencing between Defendant and Co-Defendant.
Ground Six: Whether the government breached the plea
agreement when the government sought an § 851
enhancement after stipulating that the government would not
seek the enhancement?
petitioner supplemented his motion to “add the
Mathis ruling to [his] pending 2255 that was
filed.” [Doc. 131]. Each of these grounds will be
addressed in turn below:
One: Due Process Violation
argues that “the Court and the government erred in
allowing him to plead guilty to Count One of the original
indictment after obtaining a ‘superseding'
indictment[, ] thereby nullifying/voiding the original
indictment.” [Doc. 122]. He further argues that
“the failure to arraign the petitioner on the
superseding indictment violates his Fifth and Sixth Amendment
rights to due process and notice of charges.”
[Id.]. The government, however, argues that
petitioner was aware of the existence of the superseding
indictment before he pled guilty, and agreed that he wished
to plead guilty to the original indictment. [Doc. 126]. The
government further states that both indictments include the
same substantive charges, with the only difference being an
expanded date range during which the conspiracy took place,
and argues that petitioner cannot demonstrate that he
suffered prejudice. [Id.].
It is clear that this matter was discussed at
petitioner's change of plea hearing:
Mr. Smith: One thing, and I apologize, and I don't know
if this is even an issue or not, there was a superseding
indictment returned on October 12, which did not
substantively change any charges. Mr. Gaitor has never been
rearraigned on that superseding indictment. I don't even
know if it's necessary since it didn't substantively
change the charges; but to the extent it did make a change
and extend the period of the conspiracy in Count 1 by a
couple of months. I just want to bring that to the
Court's attention in case that's anything we need to
The Court: Well, this plea agreement says he's pleading
guilty to the indictment, not the superseding indictment.
Mr. Smith: I realize that right now, so it really makes no
different as far as the penalties or the evidence presented
that supports the plea.
The Court: …[T]he stipulation of facts in this plea
agreement stipulates a conspiracy between December 28, 2010
and March 9, 2011. It seems to me that was the period in the
Mr. Smith: That was in the original because I just took the
plea agreement that had been sent to Mr. Moore and then Mr.
Bowman; so we agree with that, your honor, we're good to
The Court: I'm satisfied that he can plead to Count 1 of
the original indictment[.] … There's been a lot of
discussion among the judges in the District recently about
the effect of superseding indictment on a previously pending
indictment. I think, I think the answer to that is that both
of them are viable documents. … I mean, the
superseding indictment doesn't render the original
Mr. Smith: Yes, your honor. Well, I think as long as we put
ion the record that we've considered it and it's -
was a conscious decision as opposed to an oversight that he
is pleading guilty to Count 1 of the original indictment.
The Court: All right. And during the break if you and Mr.
Lloyd would confer about that further, I don't think
there's an issue there[.] …
[Doc. 107 at 6-8]. This discussion took place at the outset
of petitioner's change of plea hearing; it is clear that
the petitioner had full knowledge of the presence and effect
(or lack thereof) of the superseding indictment, yet agreed
to plead guilty to Count One of the original indictment. In
fact, later during the petitioner's plea colloquy, the
petitioner confirmed that he ...