United States District Court, E.D. Tennessee, Chattanooga
S. MATTICE, JR. UNITED STATES DISTRICT JUDGE
to a written plea agreement, Petitioner Frank White
(“Petitioner”) pleaded guilty to, and was
sentenced as a career offender to 128 months'
imprisonment for, a lesser-included offense of conspiracy to
distribute twenty-eight grams or more of cocaine base
(“crack”) in violation of 21 U.S.C. §§
846, 841(a)(1), and 841(b)(1)(B). He has filed a pro se
motion to vacate, set aside, or correct his sentence pursuant
to 28 U.S.C. § 2255 (the “2255 Motion”)
[Doc. 778], alleging his appointed counsel was
constitutionally ineffective. For the reasons that follow, the
Court finds an evidentiary hearing is not necessary, and the
2255 Motion shall be DENIED.
STANDARD of REVIEW
28 U.S.C. § 2255(a), a federal prisoner may make a
motion to vacate, set aside, or correct his judgment of
conviction and sentence, if he claims that the sentence was
imposed in violation of the Constitution or laws of the
United States; that the court lacked jurisdiction to impose
the sentence; or that the sentence is in excess of the
maximum authorized by law, or is otherwise subject to
collateral attack. As a threshold standard, to obtain
post-conviction relief under § 2255 a motion must
allege: (1) an error of constitutional magnitude; (2) a
sentence imposed outside the federal statutory limits; or (3)
an error of fact or law so fundamental as to render the
entire criminal proceeding invalid. Mallett v. United
States, 334 F.3d 491, 496-97 (6th Cir. 2003); Moss
v. United States, 323 F.3d 445, 454 (6th Cir. 2003).
petitioner bears the burden of demonstrating an error of
constitutional magnitude that had a substantial and injurious
effect or influence on the criminal proceedings. Reed v.
Farley, 512 U.S. 339, 353-54 (1994); Brecht v.
Abrahamson, 507 U.S. 619, 637-38 (1993). 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,
4(b) of the Rules Governing Section 2255 Proceedings in the
United States District Courts requires a district court to
summarily dismiss a § 2255 motion if “it plainly
appears from the face of the motion, any attached exhibits,
and the record of the prior proceedings that the moving party
is not entitled to relief[.]” See also Pettigrew v.
United States, 480 F.2d 681, 684 (6th Cir. 1973)
(“A motion to vacate sentence under § 2255 can be
denied for the reason that it states ‘only bald legal
conclusions with no supporting factual
allegations.'”) (quoting Sanders v. United
States, 373 U.S. 1, 19 (1963)). If the motion is not
summarily dismissed under Rule 4(b), Rule 8(a) requires the
court to determine, after a review of the answer and the
records of the case, whether an evidentiary hearing is
required. Defendant' burden of establishing that he is
entitled to an evidentiary hearing is relatively light.
Martin v. United States, 889 F.3d 827, 831-32 (6th
Cir. 2018). If a petitioner presents a factual dispute, then
“the habeas court must hold an evidentiary hearing to
determine the truth of the petitioner's claims.”
Huff v. United States, 734 F.3d 600, 607 (6th Cir.
2013) (quoting Valentine v. United States, 488 F.3d
325, 333 (6th Cir. 2007)). An evidentiary hearing is not
required if “the petitioner's allegations cannot be
accepted as true because they are contradicted by the record,
inherently incredible, or conclusions rather than statements
of fact.” Martin, 889 F.3d at 832 (quoting
MacLloyd v. United States, 684 Fed.Appx. 555, 559
(6th Cir. 2017) (internal quotation marks omitted). Where the
defendant presents an affidavit containing a factual
narrative that is neither inherently incredible nor
contradicted by the record and the government offers nothing
more than contrary representations in response, the defendant
is entitled to an evidentiary hearing. Martin, 889
F.3d at 832 (quoting Huff, 734 F.3d at 607).
Standard for Ineffective Assistance of Counsel
raises several ineffective assistance of counsel issues.
Ineffective assistance of counsel is a recognized
constitutional violation that, when adequately shown,
warrants relief under § 2255. The two-prong test set
forth in Strickland v. Washington, 466 U.S. 668, 687
(1984), governs claims of ineffective assistance of counsel
raised pursuant to 28 U.S.C. § 2255. Huff v. United
States, 734 F.3d 600, 606 (6th Cir. 2013) (citation
omitted). That test provides that, to demonstrate a violation
of the Sixth Amendment right to effective assistance of
counsel, “a defendant must establish that his
attorney's performance was deficient and that the
deficient performance prejudiced the defense.”
Id. (citing Strickland, 466 U.S. at 687).
first prong requires a petitioner to show his attorney's
performance was deficient by demonstrating that counsel's
“representation fell below an objective standard of
reasonableness.” Strickland, 466 U.S. at 688.
Stated another way, the petitioner must show “that
counsel made errors so serious that counsel was not
functioning as the ‘counsel' guaranteed the
defendant by the Sixth Amendment.” Id. at 687.
The Supreme Court has “declined to articulate specific
guidelines for appropriate attorney conduct and instead [has]
emphasized that the proper measure of attorney performance
remains simply reasonableness under prevailing professional
norms.” Huff, 734 F.3d at 606 (alterations in
original) (quoting Wiggins v. Smith, 539 U.S. 510,
521 (2003)). A reviewing court must be “highly
deferential” to counsel's performance, because
A fair assessment of attorney performance requires that every
effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel's
challenged conduct, and to evaluate the conduct from
counsel's perspective at the time. Because of the
difficulties inherent in making the evaluation, a 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,
under the circumstances, the challenged action “might
be considered sound trial strategy.”
Strickland, 466 U.S. at 689 (quoting Michel v.
Louisiana, 350 U.S. 91, 101 (1955)).
a petitioner is successful in overcoming that presumption, he
must still satisfy the second prong of the
Strickland test, i.e., prejudice. Thus, a
petitioner must show not only that his counsel's
representation was objectively unreasonable, but also that he
was prejudiced by counsel's deficiency because there
exists “a reasonable probability that, but for
counsel's unprofessional errors, the result of the
proceeding would have been different.” McPhearson
v. United States, 675 F.3d 553, 563 (6th Cir. 2012)
(quoting Strickland, 466 U.S. at 694).
the Strickland Court emphasized that both prongs
must be established for the petitioner to meet his burden, it
held there is no reason for a court deciding an ineffective
assistance claim to approach the inquiry in the same order or
even to address both components of the inquiry.
Strickland, 466 U.S. at 697. “If it is easier
to dispose of an ineffectiveness claim on the ground of lack
of sufficient prejudice, which we expect will often be so,
that course should be followed.” Id.