United States District Court, E.D. Tennessee
MEMORANDUM OPINION AND ORDER
A. VARLAN, CHIEF UNITED STATES DISTRICT JUDGE
Petitioner, Lara Bolton (“Bolton”), entered a
guilty plea before the undersigned to one count of drug
trafficking (crack cocaine) [Doc. 162]. This plea was
entered pursuant to a plea agreement [Doc. 155]. The Court
sentenced Bolton to 126 months' imprisonment [Docs. 545,
546]. Bolton did not file an appeal.
the Court now is Petitioner's pro se motion to
vacate, set aside, or correct her sentence pursuant to 28
U.S.C. § 2255 [Docs. 735, 785]. The Government has filed
a response in opposition [Doc. 847].
Petitioner's § 2255 Motion
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
“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).
Petitioner presents several claims in her § 2255 motion:
that her counsel was constitutionally ineffective for not
filing a direct appeal; for not objecting to the sufficiency
of the indictment; for not sharing discovery with her; for
not objecting to a § 851 enhancement; for not explaining
the plea agreement; for not investigating whether her prior
felonies were misdemeanors; and for errors at sentencing.
Ineffective Assistance of Counsel
petitioner alleging ineffective assistance of counsel must
satisfy the two-part test set forth in Strickland v.
Washington, 466 U.S. 668, 687 (1987). See also Huff
v. United States, 734 F.3d 600, 606 (6th Cir. 2013).
First, the petitioner must establish, by identifying specific
acts or omissions, that counsel's performance was
deficient and that counsel did not provide “reasonably
effective assistance, ” id., as measured by
“prevailing professional norms, ” Rompilla v.
Beard, 545 U.S. 374, 380 (2005). Counsel is presumed to
have provided effective assistance, and petitioner bears the
burden of showing otherwise. Mason v. Mitchell, 320
F.3d 604, 616-17 (6th Cir. 2003); see also
Strickland, 466 U.S. at 689 (a reviewing court
“must indulge a strong presumption that counsel's
conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome
the presumption that . . . the challenged action might be
considered sound . . . strategy”) (internal citation
the petitioner must demonstrate “a reasonable
probability that, but for [counsel's acts or omissions],
the result of the proceedings would have been
different.” Strickland, 466 U.S. at 694.
“An error by counsel, even if professionally
unreasonable, does not warrant setting aside the judgment of
a criminal proceeding if the error had no effect on the
judgment.” Id. at 691; see also Smith v.
Robbins, 528 U.S. 259, 285-86 (2000). If a petitioner
fails to prove that she sustained prejudice, the Court need
not decide whether counsel's performance was deficient.
See United States v. Hynes, 467 F.3d 951, 970 (6th
Cir. 2006) (holding that alleged “flaws” in trial
counsel's representation did not warrant new trial where
the claims, even if true, did not demonstrate that the jury
would have reached a different conclusion).
Court finds that the Petitioner has the burden to establish
that she is entitled to relief. See Bevil v. United
States, No. 2:06-cr-52, 2010 WL 3239276, at *3 (E.D.
Tenn. Aug. 16, 2010) (recognizing the “burden of
proving ineffective assistance of counsel is on the
petitioner”); Douglas v. United States, No.
2:05-cr-07, 2009 WL 2043882, at *3 (E.D. Tenn. July 2, 2009)
(stating that “[w]hen a defendant files a § 2255
motion, he must set forth facts which entitle him to
The determination of whether counsel was ineffective in
failing to file a direct appeal requires a hearing
claims that she told her attorney that she wanted to file an
appeal “immediately after sentencing, ” but that
no appeal was filed, although the appeal filing deadline did
not expire for ten days thereafter. Bolton alleges that her
attorney told her that she “could not file an
appeal.” The Government argues that Petitioner's
assertion is too vague and unsubstantiated, and that she has
not alleged that she “expressly requested an
appeal.” The Government also says that Bolton waived
her right to file an appeal as part of her plea agreement.
controlling in the Sixth Circuit is clear:
Despite the waiver [of appeal rights in a plea agreement] if
counsel had ignored the defendant's express instruction
to file an appeal, such action “amounts to a per se
violation of the Sixth Amendment, and thus regardless of the
merits of [defendant's] substantive claims” he
would be entitled to relief under § 2255, if the
district court determined on remand that there was an
“actual request for an appeal.”
Campbell v. United States, 686 F.3d 353, 359 (6th
Cir. 2012); see also Pola v. UnitedStates,
778 F.3d 525, ...