United States District Court, E.D. Tennessee
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]. 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].
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].
THE § 2255 MOTION
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).
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.
the opinion of this Court that none of these claims warrant
Ineffective Assistance of Counsel
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
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).
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”).
Failing to Present a Defense
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.
Explaining Very Little
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 ...