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Branham v. United States

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

June 25, 2018




         This case is before the Court upon a pro se motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 (“2255 Motion”) filed by LeMario Branham (“Petitioner” or “Branham”) [Doc. 32].[1] Petitioner claims his appellate and trial counsel rendered ineffective assistance. Respondent United States of America (the “government”) filed a response in opposition to the 2255 Motion, contending all of Petitioner's claims of ineffective assistance of counsel are meritless [Doc. 43]. For the following reasons, Petitioner's 2255 Motion will be DENIED.


         As summarized by the by the Court of Appeals for the Sixth Circuit (“Sixth Circuit”) on direct appeal:

Police found a gun in a woman's garbage can after recording Branham's jailhouse phone call to the woman asking her to dispose of it. Branham admitted to owning the gun. The district court calculated Branham's base offense level as 24, which was increased by four levels because the firearm's serial number was obliterated. Branham received a three-level reduction for accepting responsibility. Based on a total offense level of 25 and a criminal history category of IV, Branham's recommended Guidelines range was 84 to 105 months in prison. Branham moved for a downward variance on the basis of his immaturity at the time of the previous felonies-a result of his difficult and terrible upbringing. The district court denied the variance request and imposed a sentence of 100 months, to be followed by three years of supervised release.

[Doc. 30 at Page ID # 92-93].

         On appeal, Petitioner argued that his sentence was substantively unreasonable because the Court placed no weight on the scientific data he submitted to explain how and when maturity develops, which explained his past immaturity. The court of appeals found this Court properly considered Petitioner's arguments and evidence and suitably took them into account when imposing a sentence within the Guidelines range. Petitioner's conviction and sentence were affirmed on July 23, 2014. Petitioner did not file a petition for a writ of certiorari.

         Petitioner filed his 2255 Motion alleging his attorney was constitutionally ineffective (1) by not filing a motion to suppress the firearm and associated DNA evidence on the firearm; (2) by not exercising Petitioner's right to confront the lab analyst who conducted the DNA testing in this case; and (3) by not objecting to Petitioner's § 2K2.1(a)(2) base offense level either at sentencing or on direct appeal.


         A. Threshold Standard

         Under 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).

         A 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, 166 (1982).

         Rule 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's burden of establishing that he is entitled to an evidentiary hearing is relatively light. Martin v. United States, No. 16-3864, ___ F.3d ___, 2018 WL 2186782, at *3 (6th Cir. May 14, 2018) (quoting Turner v. United States, 183 F.3d 474, 477 (6th Cir. 1999) (internal quotation marks omitted). 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, 2018 WL 2186782, at *3 (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, 2018 WL 2186782, at *3 (quoting Huff, 734 F.3d at 607).

         B. Standard for Ineffective ...

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