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Groh v. United States

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

July 1, 2019




         Timothy Ray Groh (“Petitioner”) pled guilty to an information charging him with the conversion of money from the United States [Doc. 1, Case No. 2:15-CR-69].[1] Thereafter, he was convicted and sentenced to 27 months' imprisonment [Doc. 15, Case No. 2:15-CR-69]. Petitioner has now filed a pro se motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 and a supporting brief [Docs. 1 and 3]. The United States has responded in opposition to Petitioner's motion to vacate [Doc. 5], and Petitioner has filed no reply.

         The Court finds the materials thus submitted, together with the record in the underlying criminal case, conclusively show that Petitioner is not entitled to relief on his § 2255 claims. Accordingly, the Court will decide Petitioner's motion to vacate without an evidentiary hearing. See United States v. Todaro, 982 F.2d 1025, 1028 (6th Cir. 1993). For the reasons discussed below, the Court finds that Petitioner's § 2255 motion lacks merit and, thus, will DENY and DISMISS his § 2255 motion with prejudice.


         On February 10, 2015, a federal grand jury filed a 10-count indictment charging Petitioner and others with criminal offenses [Doc. 3, Case No. 2:15-CR-12]. As to Petitioner, the indictment alleged a conspiracy to commit wire fraud and a conspiracy to launder money in connection with a fraudulent tax refund scheme. As noted, Petitioner then plead guilty to an information, charging him with conversion of money from the United States in violation of 18 U.S.C. § 641 [Docs. 5 (criminal minutes) and 17 (amended judgment), Case No. 2:15-CR-69]. Upon the Court's direction, the U.S. Probation Office prepared a presentence investigation report (“PSR”) to assist the Court in sentencing Petitioner [Doc. 8 (sealed), Case No. 2:15-CR-69].

         The probation officer determined that Petitioner's base level offense under § 2B1.1 was 6. With an 8-level increase under § 2B1.1(b)(1)(E) for the stipulated loss amount (more than $70, 000 but less than $120, 000), Petitioner's adjusted offense level was 14. Two points were deducted for acceptance of responsibility, yielding a total offense level of 12. Based on a criminal history score of eleven, Petitioner's criminal history category was V. Given Petitioner's category V criminal history and his total offense level of 12, his advisory guidelines range was calculated to be 27 to 33 months' imprisonment. Petitioner objected to the PSR, specifically to the offense dates set forth in the factual summary and to the subsequent criminal history category calculations that were based on those offense dates [Doc. 9, Case No. 2:15-CR-69].[2]

         The probation officer responded to Petitioner's objection, pointing out that the offense dates listed in the PSR had evidentiary support [Doc. 13 (sealed), Case No. 2:15-CR-60]. And as the United States correctly argues in its response to the § 2255 motion, Petitioner stipulated in his plea agreement that: (1) the fraudulent tax refund offense occurred between January 1, 2008 through March 1, 2012, (2) during that period he stole Social Security numbers that co-defendants then used to prepare and submit false federal income tax returns, ultimately resulting in illegitimate income tax refunds being deposited into an account to which he had access, and (3) he knowingly withdrew the stolen funds in cash [Docs. 2, 5, Case No. 2:15-CR-69]. The Court imposed a 27-month sentence, the lowest sentence in Petitioner's advisory guidelines range [Doc. 17, Case No. 2:15-CR-69]. Petitioner did not appeal, in keeping with his limited waiver of appeal rights in the plea agreement [Doc. 2 ¶ 13(a), Case No. 2:15-CR-69]. There followed this instant § 2255 motion.


         The factual scenario surrounding Petitioner's offenses is derived from his stipulations in his plea agreement [Doc. 2 ¶4(a)-(f), Case No. 2:15-CR-69].

         From January 1, 2008, through March 1, 2012, Petitioner participated in a fraudulent tax refund scheme. The co-defendants who devised the scheme recruited Petitioner and asked him to provide Social Security numbers, addresses, and assorted personal identifying information of other individuals to enable the co-defendants to prepare and submit false federal income tax returns to the United States Treasury (“U.S. Treasury”) and its agency, the Internal Revenue Service (“IRS”).

         Terri Lynn Worley, who also was charged in the indictment with conspiracies to commit wire fraud and to launder money, knowingly prepared and electronically submitted false income tax refunds to the IRS, thereby generating illegitimate federal income tax refunds by the U.S. Treasury. (The conspiracies netted 1.2 million dollars in defrauded funds.) Those refunds were electronically transferred to a bank account, titled in Worley's name, to which Petitioner had access. When funds were received into that bank account, Petitioner withdrew the funds and spent them for himself and Worley. More particularly, in early October of 2010, Petitioner had access to and he used Worley's bank account to withdraw some $30, 000 to $40, 000 of funds belonging to the U.S. Treasury from that account.

         Based on the evidence summarized above, Petitioner pled guilty and was convicted of conversion of money from the United States, as set forth in his plea agreement.


         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)). To warrant relief under 28 U.S.C. § 2255 because of constitutional error, the error must be one of constitutional magnitude which had a substantial and injurious effect or influence on the proceedings. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (citation omitted) (§ 2254 case); Jefferson v. United States, 730 F.3d 537, 549 (6th Cir. 2013) (applying Brecht test to § 2255 motion).

         To justify relief for a non-constitutional error, a petitioner must show a fundamental defect in the proceeding that resulted in a complete miscarriage of justice or an egregious error that violated due process. Reed v. Farley, 512 U.S. 339, 354 (1994); Riggs v. United States, 209 F.3d 828, 831 (6th Cir. 2000). A petitioner “must clear a significantly higher hurdle than would exist on direct appeal” to secure collateral relief. United States v. Frady, 456 U.S. 152, 166 (1982); Regalado v. United States, 334 F.3d 520, 528 (6th Cir. 2003) (citing Frady, 456 U.S. at 166).

         When a defendant files a § 2255 motion, he must set forth facts which entitle him to relief. Green v. Wingo, 454 F.2d 52, 53 (6th Cir. 1972); O'Malley v. United States, 285 F.2d 733, 735 (6th Cir. 1961). “Conclusions, not substantiated by allegations of fact with some probability of verity, are not sufficient to warrant a hearing.” O'Malley, 285 F.2d at 735 (citations omitted). A motion that merely states general conclusions of law without substantiating allegations with facts is without legal merit. Loum v. Underwood, 262 F.2d 866, 867 (6th Cir. 1959); United States v. Johnson, 940 F.Supp. 167, 171 (W.D. Tenn. 1996).

         Claims other than those of ineffective assistance of counsel are procedurally defaulted if not raised on direct appeal. Bousley v. United States, 523 U.S. 614, 621 (1998); Peveler v. United States, 269 F.3d 693, 698 (6th Cir. 2001). The hurdle a petitioner faces to overcome a procedural default is “intentionally high[, ]…for respect for the finality of judgments demands that collateral attack generally not be allowed to do service for an appeal.” Elzy v. United States, 205 F.3d 882, 884 (6th Cir. 2000).


         Petitioner's § 2255 motion and brief assert several claims of ineffective assistance and sentencing lapses. Some claims assert both ineffective assistance and sentencing failures. For example, Petitioner's claim raised under the authority of Johnson v. United States, 135 S.Ct. 2551 (2015), is offered as both an instance of ineffective assistance and a sentencing misstep. Lastly, Petitioner advances a plea to reduce his sentence.

         In its response, the United States argues that claims based on counsel's purported shortcomings are meritless; that missteps in the application of the sentencing guidelines are not cognizable on collateral review, have been procedurally defaulted, or are groundless; that the Johnson-based claim is unfounded; and that Petitioner's request for a sentence reduction cannot be entertained in § 2255 proceedings [Doc. 5].

         A. The Claims

         1. Ineffective Assistance of Counsel

         Petitioner's multiple claims of ineffective assistance are governed by specific standards enunciated by the Supreme Court, specifically by the two-part test set forth in Strickland v. Washington, 466 U.S. 668, 687 (1987). First, a petitioner must establish, by identifying specific acts or omissions, that counsel's performance was deficient and that counsel did not provide “reasonably effective assistance, ” id., as measured by “prevailing professional norms.” Rompilla v. Beard, 545 U.S. 374, 380 (2005). A court must presume that counsel's assistance was effective, and a petitioner bears the burden of showing otherwise. Mason v. Mitchell, 320 F.3d 604, 616-17 (6th Cir. 2003); Wong v. Money, 142 F.3d 313, 319 (6th Cir. 1998) (instructing reviewing courts to “remember that ‘counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment'”) (quoting Strickland, 466 U.S. at 690); see also Strickland, 466 U.S. at 689 (directing that courts “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)). “[T]he constitutional right at issue here is ultimately the right to a fair trial, not to perfect representation.” Smith v. Mitchell, 348 F.3d. 177, 201 (6th. Cir 2003) (citing Strickland).

         Second, a petitioner must show prejudice resulting from the deficient performance by demonstrating “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. “A reasonable probability is a probability sufficient to undermine confidence in the outcome, ” id., and “requires a substantial, not just conceivable, likelihood of a different result.” Cullen v. Pinholster, 563 U.S. 170, 189 (2011) (citation and internal quotation marks omitted).

         A modified prejudice component applies upon a conviction pursuant to a guilty plea. In the context of guilty plea, prejudice is demonstrated by a petitioner who “show[s] that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). “This is an objective, not a subjective, test: ‘to obtain relief on this type of claim, a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances.'” Underwood v. United States, No. 18-5793, 2018 WL 7140598, at *2 (6th Cir. Nov. 19, 2018) (quoting Padilla v. Kentucky, 559 U.S. 356, 372 (2010)). A court must be mindful that “[a]n 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.” Strickland, 466 ...

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