United States District Court, E.D. Tennessee, Greeneville
JORDAN UNITED STATES DISTRICT JUDGE.
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]. 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.
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.
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].
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.
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
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].
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”).
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.
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.
STANDARD OF REVIEW
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).
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).
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).
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).
§ 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.
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].
Ineffective Assistance of Counsel
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).
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).
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 ...