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Porter v. United States

United States District Court, E.D. Tennessee, Knoxville

June 17, 2019

DAMON PIERRE PORTER, Petitioner,
v.
UNITED STATES OF AMERICA Respondent.

          MEMORANDUM OPINION

          THOMAS W. PHILLIPS, SENIOR UNITED STATES DISTRICT JUDGE.

         Petitioner Damon Pierre Porter (“Petitioner”) filed a pro se motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 [Doc. 1] and a motion to amend his § 2255 petition [Doc. 8].[1] The United States of America (“Respondent”) has responded in opposition to his motion [Doc. 9]. Petitioner has not replied and the time for doing so has passed. See E.D. Tenn. L.R. 7.1(a), 7.2.

         I. Background

         On November 21, 2016, Petitioner pled guilty to the lesser included offense in the Indictment [No. 3:16-CR-22, Doc. 1], possession with intent to distribute five grams or more of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B). Based on the drug quantity, the United States Probation Office calculated his base offense level as 22 under the United States Sentencing Guidelines [No. 3:16-CR-22, Doc. 24 at ¶ 14]. Due to his prior convictions for second degree murder and aggravated robbery [Id. at ¶¶ 30, 31], Petitioner was classified as a career offender, thus increasing his Guideline offense level to 34 [Id. at ¶ 20]. After reducing the offense level for acceptance of responsibility, Petitioner's total offense level was 31 with a criminal history category VI [Id. at ¶¶ 23, 42]. This produced an advisory Guideline range of 188 to 235 months imprisonment [Id. at ¶ 63]. Petitioner did not object to the calculation of his Guideline range or the application of the career offender enhancement.

         On August 30, 2017, Petitioner was sentenced to a term of imprisonment of 188 months, to be followed by a four-year term of supervised release [No. 3:16-CR-22, Doc. 41]. Petitioner did not appeal his conviction or sentence, but filed a § 2255 motion on September 4, 2018 [Doc. 1].

         II. Standard of Review

         To obtain relief under 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 ... 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), cert. denied, 540 U.S. 1133 (2004)). A petitioner “must clear a significantly higher hurdle than would exist on direct appeal” and show 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).

         Rule 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)). If the 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. 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.” Valentine, 488 F.3d at 333 (quoting Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999)).

         III. Analysis

         Petitioner raises several claims of ineffective assistance of his trial counsel, Andy S. Roskind. Ineffective assistance of counsel is a recognized constitutional violation that, when adequately shown, warrants relief under § 2255. The two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984), governs claims of ineffective assistance of counsel raised pursuant to 28 U.S.C. § 2255. Huff, 734 F.3d at 606. The Strickland test provides that, to demonstrate a violation of the Sixth Amendment right to effective assistance of counsel, “a defendant must establish that [his] attorney's performance was deficient and that the deficient performance prejudiced the defense.” Id. (citing Strickland, 466 U.S. at 687).

         The first prong requires a petitioner to show his attorney's performance was deficient by demonstrating that counsel's “representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688. Stated another way, the petitioner must show “that counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.” Id. at 687. The Supreme Court has “declined to articulate specific guidelines for appropriate attorney conduct and instead [has] emphasized that the proper measure of attorney performance remains simply reasonableness under prevailing professional norms.” Huff, 734 F.3d at 606 (alterations in original) (quoting Wiggins v. Smith, 539 U.S. 510, 521 (2003)). A reviewing court must be “highly deferential” to counsel's performance because:

[a] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a 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, under the circumstances, the challenged action “might be considered sound trial strategy.”

Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).

         Even if a petitioner is successful in overcoming that presumption, he must still satisfy the second prong of the Strickland test, i.e., prejudice. Thus, a petitioner must show not only that his counsel's representation was objectively unreasonable, but also that he was prejudiced by counsel's deficiency because there exists “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would ...


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