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Livesay v. United States

United States District Court, E.D. Tennessee

May 14, 2019

JOYCE LIVESAY, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

         Before the Court is pro se petitioner Joyce Livesay's motion to vacate, set aside, or correct her sentence pursuant to 28 U.S.C. § 2255. [Doc. 69].[1] Livesay conspired with her son, Trinity Livesay, to travel to Atlanta, Georgia, obtain multi-ounce quantities of methamphetamine, and return to northeast Tennessee to resell the methamphetamine for profit. On March 9, 2014 during a traffic stop in Hawkins County, Livesay instructed a co-conspirator to discard containers from the car. These containers had false compartments containing 7.2 grams of actual methamphetamine. Following her arrest, Livesay placed a call to her son and co-conspirator instructing him to remove methamphetamine from her residence. A search warrant was executed on the residence and law enforcement seized $3, 285 in cash drug proceeds; but the drugs that had previously been in the residence had been removed at Livesay's instruction. On May 21, 2015, Livesay pleaded guilty to conspiracy to distribute and possession with intent to distribute at least 5 grams of methamphetamine [Doc. 34].

         This Court sentenced Livesay to a mandatory minimum sentence of 60 months imprisonment followed by 4 years of supervised release [Doc. 66]. Livesay did not appeal her conviction or sentence. Livesay did file a Motion under 28 U.S.C. § 2255 to vacate and set aside her conviction and sentence [Doc. 69]. Livesay asserts that her attorney was constitutionally ineffective on several grounds, that her guilty plea was involuntary, and that her sentence was improperly calculated and illegal. The government filed a response [Doc. 84].

         I. THE § 2255 MOTION

         To obtain relief pursuant to 28 U.S.C. § 2255, a petitioner must demonstrate “(1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law that was so fundamental as to render the entire proceeding invalid.” Short v. United States, 471 F.3d 686, 691 (6th Cir. 2006) (quoting Mallett v. United States, 334 F.3d 491, 496-97 (6th Cir. 2003)). She “must clear a significantly higher hurdle than would exist on direct appeal” and establish a “fundamental defect in the proceedings which necessarily results in a complete miscarriage of justice or an egregious error violative of due process.” Fair v. United States, 157 F.3d 427, 430 (6th Cir. 1998).

         Livesay presents five bases for ineffective assistance of counsel in her § 2255 motion: (1) that counsel presented no defense; (2) that counsel explained very little; (3) that counsel did no investigation; (4) that counsel engaged in no discovery; and (5) that counsel did not review the Presentence Report. Further, Livesay asserts that, due to ineffective assistance of counsel, her guilty plea was involuntary; and, further, that her sentence was unlawfully above guidelines without explanation and the sentencing guidelines were not properly calculated.

         It is the opinion of this Court that none of these claims warrant relief.

         A. Ineffective Assistance of Counsel

         A petitioner alleging ineffective assistance of counsel must satisfy the two-part test set forth in Strickland v. Washington, 466 U.S. 668, 687 (1987). Huff v. United States, 734 F.3d 600, 606 (6th Cir. 2013) (applying the Strickland test to an ineffective assistance of counsel claim). First, the petitioner must establish, by identifying specific acts or omissions, that counsel's performance was deficient and that counsel did not provide “reasonably effective assistance, ” Strickland, 466 U.S. at 687, as measured by “prevailing professional norms.” Rompilla v. Beard, 545 U.S. 374, 380 (2005). Counsel is presumed to have provided effective assistance, and a petitioner bears the burden of showing otherwise. Mason v. Mitchell, 320 F.3d 604, 616-17 (6th Cir. 2003); see also Strickland, 466 U.S. at 689 (a reviewing 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 . . . the challenged action might be considered sound . . . strategy” (internal citation omitted)).

         Second, a petitioner must demonstrate “a reasonable probability that, but for [counsel's acts or omissions], the result of the proceedings would have been different.” Strickland, 466 U.S. at 694. “An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.” Id. at 691; see also Smith v. Robbins, 528 U.S. 259, 285-86 (2000). If a petitioner fails to prove that he sustained prejudice, the court need not decide whether counsel's performance was deficient. See United States v. Hynes, 467 F.3d 951, 970 (6th Cir. 2006) (holding that alleged “flaws” in trial counsel's representation did not warrant new trial where the claims, even if true, did not demonstrate that the jury would have reached a different conclusion).

         Further, the petitioner has the burden to establish that she is entitled to relief. See Bevil v. United States, No. 2:06-CR-52, 2010 WL 3239276, at *3 (E.D. Tenn. Aug. 16, 2010) (recognizing that “burden of proving ineffective assistance of counsel is on the petitioner”); see also Douglas v. United States, No. 2:05-cr-07, 2009 WL 2043882 at *3 (E.D. Tenn. July 2, 2009) (stating that “[w]hen a defendant files a § 2255 motion, he must set forth facts which entitle him to relief”).

         1. Failing to Present a Defense

         Livesay claims that Donna Bolton, her attorney throughout the proceedings, was ineffective for failing to present a defense. However, Livesay does not assert any defense that counsel could have raised. Further, Livesay affirmed that her counsel advised her as to any defense she had to the charges against her. [Doc. 80, Plea Tr. at 5]. Likewise, Livesay affirmed that she understood what she was pleading guilty to and that she was in fact guilty. [Id. at 11-12]. If there is a defense that counsel should have asserted and that failure to do so prejudiced Livesay, it is Livesay's burden to establish what that defense would have been. Livesay has neither established that counsel rendered ineffective assistance or that any prejudice ensued. Regardless, because Livesay received the statutory mandatory minimum sentence of five years as a result of pleading guilty to a lesser included offense, Livesay was not prejudiced by the alleged conduct.

         2. Explaining Very Little

         Livesay accuses counsel of “explain[ing] very little, ” but Livesay does not identify what aspect of her case was deficienctly explained. [Doc. 69 at 4]. Similarly, Livesay does not assert that she would have pursued a different course had she understood some aspect of the case more completely. Therefore, there is no substance for this Court to review, and accordingly this claim is without merit. See United States v. Robson, 307 ...


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