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Underwood v. United States

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

June 11, 2018




         Charles Reggie Underwood (“Petitioner”) has filed an amended motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Doc. 131.

         I. BACKGROUND

         On August 12, 2014, an indictment was filed which charged: Petitioner, Nikki Underwood (Petitioner's wife), and James Carver with conspiring to distribute and to possess with the intent to distribute oxycodone (Count 1); Petitioner and his wife with distributing oxycodone on five separate dates (Counts 2-6); Carver with possessing oxycodone with the intent to distribute (Count 7); Petitioner and his wife with possessing a firearm in furtherance of the drug trafficking conspiracy (Count 8); Petitioner and his wife with maintaining their business premises for the purpose of distributing oxycodone (Count 9); and Petitioner and his wife with using their residence for the purpose of distributing oxycodone (Count 10).[1]

         An attorney from the Criminal Justice Act panel initially was appointed, but Petitioner later retained attorney David Crockett.[2] On November 3, 2014, Petitioner signed a plea agreement in which he pleaded guilty to Count 1.[3]

         In the plea agreement, Petitioner acknowledged: that he sold a total of 58 oxycodone pills to a confidential informant on five separate dates; that he and his wife sold oxycodone from their business and residence properties; that one of his suppliers was James Carver; that he agreed that a Glock handgun found on the headboard of the bed he shared with his wife during a search of his house should result in a two-level enhancement under United States Sentencing Commission Guidelines Manual (“USSG”) § 2D1.1(b)(1); that he agreed that he should be held responsible for more than 5000 but less than 10, 000 30 mg. oxycodone pills; that he waived his right to file a direct appeal of his conviction or sentence except for a sentence above the guideline range; and that he waived his right to collaterally attack his conviction or sentence except for claims of ineffective assistance of counsel or prosecutorial misconduct.

         For its part, the United States agreed: to dismiss all remaining counts filed against Petitioner, including the § 924(c) count; that it would not oppose a two-level reduction for acceptance of responsibility; and, if Petitioner's offense level should be 16 or greater, that it would move for an additional one-level reduction.

         Due to the number of pills for which Petitioner agreed he should be held accountable, his base offense level was 30. Two points were added for possession of a weapon, and two points were added for maintaining a premises from which to distribute oxycodone. A total of three points were deducted for acceptance of responsibility. The adjusted offense level was 31.[4] Petitioner's criminal history score was 13, establishing a criminal history category of VI.[5]

         The offense level and criminal history generated an advisory guideline range of 188 to 235 months.[6] The government moved for a one-level reduction pursuant to USSG § 5K1.1 which would have reduced Petitioner's guideline range to 168 to 210 months.[7]However, this Court determined that an additional one-level substantial assistance reduction was appropriate, for a guideline range of 151 to 188 months. The Court thereafter sentenced petitioner to 154 months of imprisonment.[8]


         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(b). 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 (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).

         An evidentiary hearing is required if the petitioner presents factual allegations unless those allegations cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of facts. Martin v. United States, 889 F.3d 827 (6th Cir. 2018) (citing MacLloyd v. United States, 684 Fed.Appx. 555 (6th Cir. 2017)).

         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). To warrant relief for a non-constitutional error, a 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). 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).

         When a § 2255 petitioner claims he was denied his Sixth Amendment right to effective assistance of counsel, an attorney is presumed to have provided effective assistance and the petitioner bears the burden of showing that the attorney did not. Mason v. Mitchell, 320 F.3d 604, 616-17 (6th Cir. 2003). The petitioner must prove that specific acts or omissions by his attorney were deficient and that the attorney failed to provide “reasonably effective assistance, ” Strickland v. Washington, 466 U.S. 668, 687 (1987), which is measured by “prevailing professional norms, ” Rompilla v. Beard, 545 U.S. 374, 380 (2005). “[T]he constitutional right at issue here is ultimately the right to a fair trial, not to perfect representation.” Smith v. Mitchell, 348 F.3d 177, 201 (6th Cir. 2003 (citing Strickland). If a petitioner crosses this evidentiary hurdle, he must then show “a reasonable probability that, but for [the attorney's acts or omissions], the result of the proceedings would have been different.” Strickland, 466 U.S. at 694. In other words, he must show that he was actually prejudiced by the attorney's deficient representation:

To succeed on an ineffective assistance claim, a defendant must show that counsel's deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). [A court's ] review of counsel's performance is “highly deferential.” Id. at 689, 104 S.Ct. 2052. [The court must] “judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct.” Id. at 690, 104 S.Ct. 2052. The defendant “must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment.” Id. To establish “prejudice, ” a “defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052. “The likelihood of a different result must be substantial, not just conceivable.” Harrington v. Richter, 562 U.S. [86], 131 S.Ct. 770, 792, 178 L.Ed.2d 624 (2011). And, “[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice ... that course should be followed.” Strickland, 466 U.S. at 697, 104 S.Ct. 2052.

Docherty v. United States, 536 Fed.Appx. 547, 551 (6th Cir. 2013).



         Petitioner claims that his attorney was constitutionally ineffective in a myriad of ways. Several of these claims overlap and are duplicative to some extent. Petitioner's claims will be addressed in the same order as set out in his motion.

         A. Involuntary plea

         Petitioner says that his guilty plea was not knowing and voluntary because his counsel failed to make an investigation prior to entry of the plea to determine that the factual basis was correct. This claim concerns the quantity of pills for which Petitioner agreed he should be held responsible in the plea agreement (more than 5000 but less than 10, 000), and the USSG § 2D1.1(b)(1) firearm enhancement.

         With respect to pill quantity, Petitioner points out that immediately before this court pronounced sentence, he stated that he “didn't sell no 400 [pills], ”[9] which apparently was a reference to his written statement given to the arresting law enforcement officers that he bought 400 to 600 pills a week for two years for ultimate distribution.[10]Not only did his statement during the sentencing hearing directly contradict what he admitted to the arresting officers, it contradicts his recitations in his plea agreement. Moreover, during his earlier change of plea hearing, Petitioner swore to this Court: that that he had told his attorney everything he knew about his case;[11] that he believed that his attorney was aware of all the facts;[12] that his lawyer had explained the plea agreement to him;[13] that he was satisfied with his attorney's representation;[14] and that he was pleading guilty because he in fact was guilty.[15]

         Also, it is recalled that at the commencement of the initial sentencing hearing on May 28, 2015, Petitioner had told his attorney that after talking with his mother he wanted to withdraw his guilty plea. The Court re-scheduled the sentencing hearing to allow Petitioner and his attorney to discuss the matter further.[16] Three weeks later, at the adjourned sentencing hearing held on June 18, 2015, Petitioner abandoned his request to withdraw his plea.

         Regarding the firearm enhancement, much the same can be said. Petitioner admitted in his plea agreement that officers found a loaded Glock pistol in the headboard of the bed he shared with his wife. To be sure, at his change of plea hearing Petitioner's attorney advised this Court that his client was claiming that the gun belonged exclusively to his co-defendant wife, and that he wanted a continuance to investigate that assertion.[17]At that point, the Assistant United States Attorney said that U.S.S.G. § 2D1.1(b)(1) was a “bargained for enhancement” in lieu of the 18 U.S.C. § 924(c) charge in count 8.[18] This Court thereupon suggested to counsel that it would be prudent for him to explain the risks attendant to going to trial with the § 924(c) charge. Counsel then stated that he had just done so, and Petitioner had decided to leave matters as they were.[19] Petitioner did not express his disagreement with counsel's statement.

         Petitioner argues that his attorney failed to investigate Petitioner's claim that he and his wife would be given probation if he agreed to cooperate. However, there was nothing to investigate. At his change of plea hearing, Petitioner told the Court that although no one had put any pressure on him to plead guilty, he had been promised “some leniency” by a law enforcement agent if he “helped out” with the case.[20] This Court promptly asked Petitioner if he understood that nothing said by a law enforcement agent was binding on the Court and that his sentence would be determined by this Court, to which Petitioner answered that he did.[21]

         Petitioner says that every time he told his attorney that he disagreed with the quantity of pills attributed to him, or to the firearm enhancement, his attorney said he could raise these issues on appeal. Besides being a bald conclusory statement, it makes absolutely no sense in two particulars. First, Petitioner acknowledged to this Court that he was waiving his right to a direct appeal. Second, why tell this Court “A” in anticipation of telling the Court of Appeals “Not A?” Even to a non-lawyer, it would make no sense and there is no logic to it. This unsubstantiated allegation has no indicia of verity, O'Malley, supra. Most importantly, Petitioner swore to this Court that he was guilty of the offenses described in detail in the plea agreement.

         To state it plainly, Petitioner now is saying that he committed perjury at his change of plea hearing. There is no other way his motion can be construed. Every claim he now raises he knew about at his change of plea hearing. He swore to this Court that he was satisfied with his attorney's representation. How could that testimony have been true in light of his current claims? Petitioner cannot so cavalierly assert that he committed perjury during his change of plea hearing and now seek to benefit from it. He is bound by the sworn declarations he made to this Court. United States v. Todaro, 982 F.2d 1025, 1030 (6th Cir. 1993); United States v. Rennick, 219 Fed.Appx. 486, 490 (6th Cir. 2007).[22]Petitioner's claim is contradicted by the record and no evidentiary hearing is required.

         B. Incorrect advice regarding ...

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