United States District Court, E.D. Tennessee
A. VARLAN UNITED STATES DISTRICT JUDGE.
Antoiwan Gibson had filed a motion to vacate, set aside, or
correct sentence under 28 U.S.C. § 2255 [Doc. 1], twice
amended to its current form [Doc. 20], and several other
related filings. The government has twice responded in
opposition [Docs. 9, 21], and Gibson replied [Doc. 26]. Based
on the record and argument before the Court, it is
unnecessary to hold an evidentiary hearing,  and the second
amended motion will be denied.
pleaded guilty to conspiring to distribute at least one
hundred grams of heroin, in violation of 21 U.S.C.
§§ 846, 841(a)(1), and 841(b)(1)(B) [Doc. 56, No.
3:15-cr-66]. He was subject to a sentence of no less than
five and up to forty years' imprisonment [Id.].
Based on the drug quantity for which the Presentence
Investigation Report (“PSR”) initially held
Gibson accountable and his criminal history, Gibson's
term of imprisonment under the advisory United States
Sentencing Guidelines was the statutorily required minimum
sentence of 60 months [Id. at ¶ 68].
government objected to the drug quantity for which petitioner
was held responsible, and also the lack of a death-results
enhancement under § 2D1.1(a)(2) and of a leadership-role
enhancement under § 3B1.1 [Doc. 86, No. 3:15-cr-66].
Based on additional evidence provided by the government, the
Probation Office agreed with these objections and revised the
PSR accordingly; as a result, Gibson faced a sentence of 324
to 405 months' imprisonment [Doc. 89, No. 3:15-cr-66].
parties agreed to a Rule 11(c)(1)(C) amendment to the plea
agreement, under which they stipulated to a sentence of 180
months' imprisonment [Doc. 93, No. 3:15-cr-66]. This
Court ultimately accepted the Rule 11(c)(1)(C) agreement and
sentenced petitioner to the agreed-upon term of 180
months' imprisonment on October 3, 2016 [Doc. 101, No.
3:15-cr-66]. Petitioner did not appeal, so his judgment
became final on October 17, 2016. See Sanchez Castellano
v. United States, 358 F.3d 424, 428 (6th Cir. 2004). He
now seeks relief in this motion under § 2255, in which
he asserts claims of ineffective assistance of counsel and
that he is actually innocent of the statutory death-results
enhancement under 21 U.S.C. § 841 [Doc.
Court must vacate, set aside, or correct 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. To obtain relief under § 2255, the
error must be one of “constitutional magnitude which
had a substantial and injurious effect or influence on the
proceedings.” Watson v. United States, 165
F.3d 486, 488 (6th Cir. 1999) (citing Brecht v.
Abrahamson, 507 U.S. 619, 637 (1993)). Claims of
ineffective assistance of counsel and actual innocence-which
Gibson brings here-are cognizable on § 2255 motions.
Massaro v. United States, 538 U.S. 500, 508-09
(2003); Bousley v. United States, 523 U.S. 614, 622
first two, related claims-that he is actually innocent of any
death-results enhancement under U.S.S.G. § 2D1.1(a)(2)
or 21 U.S.C. § 841, and that counsel was
constitutionally ineffective for allowing him to enter into a
Rule 11(c)(1)(C) agreement that purportedly entailed such an
enhancement-are both based on the premise that his sentence
was the product of either death-results enhancement. It was
not. Gibson was sentenced to an agreed-upon term of 180
months' imprisonment in accordance with a Rule
11(c)(1)(C) plea agreement, which the Court accepted. That
stipulated sentence was far lower than Gibson's
sentencing exposure of 324 to 405 months if the death-results
enhancement under § 2D1.1(a)(2) were applied, and as
Gibson's signed plea agreement itself states, was the
result of “extensive negotiations regarding the
application of certain provisions of the Sentencing
Guidelines to this defendant's case, and most
particularly regarding the application of the death-resulting
enhancement under Sentencing Guidelines Section
2D1.1(a)(2)” [Doc. 93, No. 3:15-cr-66]. Because Gibson
was not sentenced under the death-results enhancement, it is
irrelevant whether he is actually innocent of that
enhancement. And even if Gibson were
“innocent” of death-results enhancement, he did
not, as he argues, enter into a plea agreement that
“entailed” that enhancement, so his counsel could
not have been deficient for allowing him to enter into such
an agreement. Gibson's claims therefore fail.
also accuses his counsel of prematurely transmitting the
amended plea agreement, which Gibson had already signed, to
the United States for filing with the Court. According to
Gibson, his counsel transmitted the plea agreement on
September 22, 2016, before Gibson (admittedly) gave his
consent to do just that on September 30 of the same year.
Even if this were true, Gibson has not alleged that, without
his counsel's purported ahead-of-time transmitting, he
would have gone to trial, see Hill v. Lockhart, 474
U.S. 52 (1985), or that the asserted discrepancy otherwise
prejudiced him, see Strickland v. Washington, 466
U.S. 668 (1984). This claim therefore fails.
these reasons, relief based on § 2255 is not warranted,
so Gibson's amended motion will be
DENIED [Doc. 20]. Gibson's other pending
motions will therefore be DENIED as moot
[Docs. 27, 31, 34]. This action will be
DISMISSED, and the Court will
CERTIFY that any appeal from this action
would not be taken in faith and would be totally frivolous.
Therefore, this Court will DENY petitioner
leave to proceed in forma pauperis on appeal.
See Fed. R. App. P. 24. Moreover, Gibson has not
made a substantial showing of the denial of a constitutional
right because jurists of reason would not dispute the above
conclusions, Slack v. McDaniel, 529 U.S. 473, 484
(2000), so a certificate of appealability SHALL NOT
ISSUE. 28 U.S.C. § 2253; Fed. R. App. P. 22(b).
A separate judgment will enter.
 An evidentiary hearing is required on
a § 2255 motion unless the motion, files, and record
conclusively show that the prisoner is not entitled to
relief. See 28 U.S.C. § 2255(b). It is the
prisoner's ultimate burden, however, to sustain her
claims by a preponderance of the evidence. See Pough v.
United States, 442 F.3d 959, 964 (6th Cir. 2006).
Accordingly, where “the record conclusively shows that
the petitioner is entitled to no relief, ” a hearing is
not required. Arredondo v. United States, 178 F.3d
778, 782 (6th Cir. 1999) (citation omitted).
 Because it has been determined that
“Petitioner's amended § 2255 petition will
supplant his original petition” [Doc. 24], only
arguments made in Gibson's second amended ...