United States District Court, M.D. Tennessee, Nashville Division
A. TRAUGER, UNITED STATES DISTRICT JUDGE
before the court is pro se movant Joshua
Granderson's motion under 28 U.S.C. § 2255 (Doc. No.
1) to vacate, set aside, or correct a sentence previously
imposed by this court. See United States v.
Granderson, No. 3:13-cr-00036, Doc. No. 245 (M.D. Tenn.
June 30, 2015) [hereinafter cited as “Crim. Doc. No.
”]. The government filed a response. (Doc. No.
12.) For the following reasons, the movant's motion will
be denied and this action will be dismissed.
previous criminal case in this court, an indictment charged
the defendant with possession of a firearm as a felon and
possession with intent to distribute drugs. United States
v. Granderson, No. 3:12-cr-00045, Doc. No. 9 (M.D. Tenn.
Mar. 1, 2012). The court granted the defendant's motion
to suppress the relevant evidence in that case. (No.
3:12-cr-00045, Doc. No. 23.) On June 28, 2012, the court
granted the government's motion to dismiss the indictment
(No. 3:12-cr-00045, Doc. No. 40), bringing that action to a
February 6, 2013, in the criminal case underlying this
pending motion, an indictment charged the defendant with four
counts of distributing crack and powder cocaine. (Crim. Doc.
No. 17.) On direct appeal, the Sixth Circuit summarized the
facts underlying these charges as follows:
[Metropolitan Nashville Police Department] Detective Daniel
Bowling had developed a woman known as “Jenny
May” as a confidential informant following an
unrelated traffic stop. Jenny May had an ongoing relationship
with Granderson, and Granderson had communicated with her
while in custody during his first prosecution. Detective
Bowling was unaware of the relationship between Jenny May and
Granderson, and it had no impact on his investigation.
In her role as an informant, Jenny May gave police a list of
four or five individuals, including Granderson, from whom she
said she could purchase drugs. Detective Bowling then
investigated the background and criminal history of the
individuals on the list. During his investigation, Bowling
learned that Granderson had prior felony convictions and,
based on social media photos, believed Granderson may have
been involved in gang activities.
With Jenny May's help, Bowling was able to buy drugs from
Granderson on four occasions. Granderson sold Jenny May and
Bowling crack cocaine on December 5 and December 11, 2012,
and sold cocaine and crack cocaine to Bowling on December 18,
2012 and January 3, 2013. A federal grand jury indicted
Granderson on four counts of possession and distribution of
crack and powder cocaine.
United States v. Granderson, 651 Fed.Appx. 373, 375
(6th Cir. 2016) (internal citations omitted).
James Mackler entered an appearance on behalf of the movant
on March 4, 2013. (Crim. Doc. No. 26.) On March 15, 2013, the
movant filed a motion to discover the identity of the
confidential informant. (Crim. Doc. No. 34.) Five days later,
the government filed an Information to Establish Prior
Conviction Pursuant to 21 U.S.C. § 851 (“851
Enhancement”). (Crim. Doc. No. 39.) The court granted
Mr. Mackler's motion to withdraw on April 19, 2013 (Crim.
Doc. No. 45), and Kenneth Quillen and William Slone were
appointed as substitute counsel (Crim. Doc. Nos. 46 and 56).
court began a jury trial on May 21, 2013. (Crim. Doc. No.
89-92.) The following morning, before the jury returned, the
movant presented a letter to the court complaining that he
did not have confidence in his attorney's handling of the
case, specifically referencing chain of custody issues.
(Crim. Doc. No. 65.) The movant orally expressed these
concerns to the court as well. (Crim. Doc. No. 93 at 2-5.)
The court declared a mistrial, the Federal Public Defender
appointed Michael Terry to represent the movant, and the case
was reset for trial. (Id. at 11, 14; Crim. Doc. Nos.
66 and 69.)
January 29, 2014, the movant filed a Motion to Dismiss the
indictment, arguing that he was the subject of vindictive
prosecution, due to the successful exercise of his
constitutional rights in his first criminal case. (Crim. Doc.
No. 129.) He also filed a Motion to Strike the 851
Enhancement as, among other things, a vindictive expression
of prosecutorial discretion. (Crim. Doc. No. 115 at 1 &
n.3.) In a letter dated February 11, 2014, the movant
requested yet another new counsel. (Crim. Doc. No. 143.) The
court granted the movant's request (Crim. Doc. No. 145),
and attorney John Oliva entered an appearance on behalf of
the movant on March 5, 2014 (Crim. Doc. No. 147).
movant, through Mr. Oliva, adopted the Motion to Dismiss and
the Motion to Strike filed by previous counsel. (Crim. Doc.
Nos. 152, 161.) In support of the vindictive-prosecution
argument, the movant then filed two replies and numerous
state court documents. (Crim. Doc. Nos. 160, 167, 174.) The
court heard oral argument on the Motion to Dismiss and then
set an evidentiary hearing, at which the government would be
required to provide an on-the-record explanation regarding
the decision to prosecute the movant. (Crim. Doc. No. 176 at
41-47; Crim. Doc. No. 177.) At the conclusion of the
evidentiary hearing on October 17, 2014, the court denied the
movant's motions. (Crim. Doc. No. 197; Crim. Doc. No. 205
at 150-55.) In a pro se letter postmarked October
24, 2014, the movant asserted that the court abused its
discretion in denying the Motion to Dismiss. (Crim. Doc. No.
court held another jury trial (Crim. Doc. Nos. 228-32), and
the jury convicted the movant on all four counts on November
14, 2014 (Crim. Doc. No. 214). The movant filed a timely
Renewed Motion for Judgment of Acquittal. (Crim. Doc. No.
219.) In a pro se letter dated December 16, 2014,
the movant again requested new counsel. (Crim. Doc. No. 222.)
On January 27, 2015, the court denied the Renewed Motion for
Judgment of Acquittal (Crim. Doc. No. 233) and relieved Oliva
as counsel for the movant (Crim. Doc. No. 234). On January
30, 2015, James Simmons entered an appearance on his behalf.
(Crim. Doc. No. 235.)
February 5, 2015, the court received the movant's pro
se motion to reconsider the denial of his Motion to
Dismiss. (Crim. Doc. No. 238.) The court denied the motion
and advised the movant that he must work through his new
counsel to file motions. (Crim. Doc. No. 239.) On June 29,
2015, the court sentenced the movant to a total term of 72
months' imprisonment, to be followed by 6 years of
supervised release. (Crim. Doc. No. 245 at 2-3.) The Sixth
Circuit affirmed the court's judgment. (Crim. Doc. No.
268); Granderson, 651 Fed.Appx. at 375. The movant
later filed this timely pro se motion under 28
U.S.C. § 2255 (Doc. No. 1), and the government filed a
response, accompanied by an affidavit from trial counsel John
Oliva (Doc. Nos. 12 and 12-1).
movant asserts that Oliva was ineffective in four ways: (1)
refusing to file a motion to reconsider the court's
denial of the Motion to Dismiss; (2) failing to introduce a
recording during the testimony of Jenifer Addington; (3)
failing to prepare the movant to testify before trial; and
(4) failing to object to the chain of custody of drug
evidence. (Doc. No. 1 at 4-10.)
prevail on a claim for ineffective assistance of counsel, the
movant bears the burden of showing, first, “that his
counsel provided deficient performance, ” and second,
that “the deficient performance prejudiced [his]
defense.” Sylvester v. United States, 868 F.3d
503, 509-10 (6th Cir. 2017) (citing Strickland v.
Washington, 466 U.S. 668, 687 (1984)). Trial
counsel's performance is deficient where it falls
“below an objective standard of reasonableness.”
Strickland, 466 U.S. at 687-88. “[A] court
must indulge a strong presumption that counsel's conduct
falls within the wide range of reasonable professional
assistance; that is, the [movant] must overcome the