United States District Court, E.D. Tennessee, Greeneville
RONNIE GREER, UNITED STATES DISTRICT JUDGE
matter is before the Court on the motion of Jamar Vernest
Neil Grissett (“Petitioner”), a federal inmate,
to vacate, set aside, or correct sentence pursuant to 28
U.S.C. § 2255, [Doc. 97].The United States has responded in
opposition, [Doc. 102], and Petitioner has replied, [Doc.
103]. Also pending is Petitioner's motion for summary
judgment, [Doc. 104]. The United States has not responded to
the motion for summary judgment. Because the records and
files of the case conclusively establish that Petitioner is
not entitled to relief under §2255, no evidentiary
hearing is necessary. The motion for summary judgment will be
DENIED and, for the reasons which follow, the Court finds
Petitioner's § 2255 motion meritless and it will
likewise be DENIED and DISMISSED with prejudice.
Procedural and Factual Background
was charged in a criminal complaint filed on October 6, 2015,
with distribution of 28 grams or more of cocaine base
(“crack”) in violation of 21 U.S.C. §§
841(a)(1) and 841(b)(1)(B), [Doc. 3]. Petitioner made an
initial appearance before the magistrate judge, executed an
affidavit of indigency, and Mark S. Hanor was appointed to
represent Petitioner pursuant to the Criminal Justice Act,
[Docs. 4, 5, 6]. Petitioner was ordered detained, [Doc. 9].
On October 15, 2015, a federal grand jury returned an
indictment charging Petitioner and Ashley Martisha Grissett
in Count One with conspiracy to distribute and possess with
intent to distribute 280 grams or more of cocaine base
(“crack”) in violation of 21 U.S.C. §§
846, 841(a)(1) and 841(b)(1)(A), and in Count Two with
distribution of crack in violation of 21 U.S.C. §§
841(a)(1) and 841(b)(1)(C), [Doc. 14]. Petitioner was charged
individually in Counts Three-Six with distribution of crack
on various dates, [Id.]. Ashley Grissett was
arrested in the Northern District of Georgia on April 27,
2016, [Doc. 16], brought to this district and, after initial
appearance, arraignment, and the appointment of counsel,
ordered detained, [Docs. 17, 20].
order on scheduling and discovery was entered by the
magistrate judge on May 12, 2016, [Doc. 21], ordering the
government to comply with its discovery obligations under
Rule 16 of the Federal Rules of Criminal Procedure. Trial was
set for June 29, 2016, [Doc. 17]. The trial was later
continued upon motion of Ashley Grissett to September 14,
2016, [Docs. 31, 35]. On August 5, 2016, a negotiated plea
agreement between Petitioner and the United States was filed,
[Doc. 36], in which the Petitioner agreed to plead guilty to
Count One and the United States agreed to dismiss all other
counts, see also [Doc. 38, Am. Plea Agreement].
Petitioner pled guilty to Count One on August 17, 2016, a
presentence investigation report (“PSR”) was
ordered, and sentencing was scheduled for November 21, 2016,
was disclosed on October 14, 2016, [Doc. 54].
Petitioner's base offense level was determined to be 34
pursuant to USSG § 2D1.1(c)(3) based upon a stipulated
quantity for which he was to be held accountable of at least
2.8 kilograms, but less than 8.4 kilograms, of cocaine base,
[Doc. 54 ¶ 40, 47]. Two levels were added to the offense
level for maintaining a premises for the purpose of
manufacturing or distributing a controlled substance pursuant
to USSG § 2D1.1(b)(12), [Id. ¶ 41, 48].
After a reduction of three levels in the offense level for
acceptance of responsibility pursuant to USSG §§
3E1.1(a) & (b), the total offense level was 33,
[Id. ¶¶ 54, 55, 56]. Petitioner's
criminal history category was III, resulting in an advisory
guidelines range of 168 months to 210 months imprisonment and
a statutory range of a 10-year mandatory minimum to life
imprisonment, [Id. at ¶¶ 96, 97].
was sentenced on December 14, 2016, to 168 months of
imprisonment, the bottom of the guideline range, [Doc. 70],
and judgment was entered on December 16, 2016, [Doc. 71]. No.
direct appeal was filed. The pending motion was then timely
filed on August 3, 2017.
Standard of Review
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.
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.
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). 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), cert. denied, 439 U.S. 988
(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), cert. denied, 517 U.S. 1200 (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).
Analysis and Discussion
raises a single claim of ineffective assistance of counsel in
his § 2255 motion. He offers the following as
“Supporting Facts”: “Trial counsel was
ineffective in failing to fully inform and advise Movant to
‘available options' pre-indictment, beginning at
the juncture in the pre-indictment phase were [sic] the right
to counsel guaranteed by the Sixth Amendment of the United
States Constitution begun to attach. Counsel was also
ineffective in failing to explain the advantages and
disadvantages in exercising or not exercising the
‘available options' pre-indictment, and the effects
each option would have or not have on the movant's
eventual sentence or sentencing exposures.” [Doc. 97 at
4]. Petitioner does not identify the “available
options” in his motion but he clarifies somewhat in his
memorandum in support of the motion. He appears to fault
counsel's performance in two specifics, i.e., 1) not
informing him he could waive prosecution by indictment, and
2) not informing him of the possibility of pleading guilty to
the criminal complaint. [Doc. 98 at 2]. He more succinctly
states the nature of his claim in his reply to the
government's response: “In sum, if the Movant had
been advised of his available option to waive prosecution by
indictment, per Fed. R. Crim. P. 7(b), and had exercised that
option in a timely and diligent fashion (as the Movant
asserts he would have), then the Government would have been
limited to the lone offense and its penalty provision, and in
this case 21 U.S.C. 841(a)(1) and 841(b)(1)(B)(5-40
sentencing range).” [Doc. 103 at 8].
limits his claim to what he calls the “pre-indictment
context, ” meaning the 8-day period between
counsel's appointment on October 6, 2015, and the date of
his indictment on October 15, 2015. [Id. at 1, 5].
So, this case boils down to a simple question: Was counsel
ineffective and, if so, was Petitioner prejudiced in any way?
Petitioner, in his motion for summary judgment, argues that
the government has not disputed his allegation that counsel
had a “reasonable duty to inform him of all his
‘available options' in the pre-indictment
phase.” [Doc. 104 at 2]. But that is a rather
unremarkable assertion. The real question was whether counsel
was ineffective for not advising Petitioner to waive
indictment and plead guilty to the criminal complaint within
8 days of his CJA appointment and without the benefit of any
discovery (as noted above, the order requiring the government
to provide discovery was not entered until May 12, 2016,
seven months after the grand jury's return of the
indictment). Petitioner's whole argument on
ineffectiveness of counsel is premised on the assertion that,
had he waived indictment and pleaded guilty to the criminal
complaint, the United States could not have brought
“greater charges” and he “could have
avioded [sic] a greater sentencing range.” His
argument, however, is flawed.
criminal prosecution may be initiated with a complaint sworn
before a magistrate judge which contains “a written
statement of the essential facts constituting the offense
charged.” Fed. R. Crim. P. 3. Rule 5.1 then requires a
preliminary hearing “within a reasonable time, but no
later than 14 days after the initial appearance if the
defendant is in custody and no later than 21 days if not in
custody, ” unless the defendant waives the hearing, is
indicted, or the government files an information. Fed. R.
Crim. P. 5.1(a) & (c). A felony offense “must be
prosecuted by an indictment.” Fed. R. Crim. P. 7(a)(1).
A felony offense, however, “may be prosecuted
by information, if the defendant-in open court and after
being advised of the nature of the charge and of the
defendant's rights-waives prosecution by
indictment.” Fed. R. Crim. P. 7(b) (emphasis added).
Petitioner claims that, by waiving indictment, he could have
required the government to file an information, rather than
seek an ...