United States District Court, E.D. Tennessee, Chattanooga
L. COLLIER UNITED STATES DISTRICT JUDGE
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.
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
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].
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
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.
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)).
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).
Standard for Ineffective ...