United States District Court, E.D. Tennessee
MICHAEL B. HOLLAND, Petitioner,
UNITED STATES OF AMERICA, Respondent.
JORDAN UNITED STATES DISTRICT JUDGE.
Michael B. Holland's pending pro se motion to vacate, set
aside, or correct his sentence under 28 U.S.C. § 2255 is
before the Court for disposition [Doc. 1]. The United States
responded in opposition [Doc. 2]. Petitioner did not reply,
and the time to reply has now passed. E.D. Tenn. L.R. 7.1,
7.2. Also pending before the Court are Petitioner's
motion for appointment of counsel and two motions to
supplement his § 2255 motion [Docs. 3-5].
Court has reviewed the parties' submissions and now finds
that the record in this case establishes conclusively that
Petitioner is not entitled to relief under § 2255; thus,
no evidentiary hearing is necessary. See Rule 8(a),
Rules Governing § 2255 Cases. For the following reasons,
Petitioner's § 2255 motion [Doc. 1] will be DENIED
and DISMISSED WITH PREJUDICE, his motion to appoint counsel
[Doc. 3] will be DENIED, and his motions to supplement [Docs.
4-5] will be GRANTED.
MOTION TO VACATE
offers two general grounds for § 2255 relief.
Petitioner's first claim is based on Johnson v.
United States, 135 S.Ct. 2551 (2015), in which the
Supreme Court held that the residual clause of the Armed
Career Criminal Act (“ACCA”) was
unconstitutionally vague [Doc. 1 at 3]. Petitioner's
second claim is that his counsel gave him ineffective
assistance by failing to explain to him mitigating factors,
specifically the import of his mental health issues
[Id. at 4]. A proper explanation of this mitigating
factor, according to Petitioner, would have afforded him a
downward departure in his sentence [Id.].
opposes the motion, arguing that it is untimely, that
Petitioner's Johnson claim is barred by the
§ 2255 waiver in his plea agreement, and that the
Johnson claim furnishes no basis for relief [Doc.
2]. Petitioner's claim of ineffective assistance, so
argues Respondent, likewise is untimely and also is without
Procedural and Factual Background
was charged in an indictment with two counts of Hobbs Act
robbery, in violation of 18 U.S.C. § 1951 [Doc. 1, No.
2:10-CR-111]. The government filed an information to
establish Petitioner's prior felony convictions for
robbery, attempted aggravated robbery (2 convictions), and
armed robbery [Doc. 16, No. 2:10-CR-111]. Nearly two years
after the Hobbs Act robberies, Petitioner agreed to plead
guilty, pursuant to a Rule 11(c)(1)(C) negotiated plea
agreement, to Hobbs Act robbery as charged in counts one and
two in the indictment [Doc. 38, No. 2:10-CR-111].
factual basis for his plea, Petitioner stipulated to the
before midnight on September 26, 2010, Johnson City,
Tennessee police officers responded to a reported armed
robbery [Id. at ¶ 3]. The officers spoke with
the cashier at a Roadrunner Market on Unaka Avenue, who told
them that a tall, skinny black male, wearing blue jeans and a
green jacket, entered the store, and came behind the counter,
while holding one hand over his mouth and a white-handled
steak knife in the other hand. The robber had the cashier
give him the money from two cash register drawers, then the
robber got into a gray Toyota Camry being driven by a white
female. The incident was captured on video surveillance
two and a half hours later, at 2:35 a.m. on September 27,
2010, police officers responded to a 911 call reporting an
armed robbery at a Roadrunner Market on Cherokee Road in
Johnson City. During the call, the cashier stated that a
slightly-bearded, black male, wearing blue jeans and a green
hoodie, put a knife to the cashier's neck, and took all
the cash, including a roll of dimes and a roll of quarters,
from two cash register drawers. The cashier said that the
robber was driving an older model, gray Toyota Camry or
noted the similarities between the two robberies. Shortly
thereafter, officers stopped a 1989 gray Toyota Camry, which
matched the description of the car used in the robberies.
Petitioner was driving the car, and he was wearing blue jeans
and a green hoodie. A roll of quarters, a roll of dimes, and
a steak knife were lying on the front seat of the car. The
second cashier was taken to the site of the police stop, and
the cashier immediately identified Petitioner as the robber.
Petitioner had $154 in cash in his pocket. Petitioner
admitted that he committed both robberies as charged.
that the robberies affected interstate commerce, a corporate
seller in Oklahoma submitted an invoice showing that it had
provided items to be sold in both Roadrunner locations. The
United States agreed to move to withdraw the information to
establish Petitioner's prior convictions, so as to remove
that potential sentence-enhancement vehicle as a barrier to
the 240-month sentence bargained for in the plea agreement.
March 15, 2012, two weeks and a few days after the plea
agreement was filed with the Court, Petitioner pled guilty to
both Hobbs Act robberies [Doc. 42, Chg. of Plea Hr'g
Minute Entry, No. 2:10-CR-111]. Thereafter, the United States
Probation Office issued a Presentence Investigation Report
(“PSR”) to assist the Court in sentencing
Petitioner [PSR, No. 2:10-CR-111].
probation officer who prepared the PSR determined that
Petitioner's base offense level for the Hobbs Act robbery
in count 1 was 20 [Id. at ¶ 19]. A three-level
enhancement under USSG § 2B2.1(b)(2)(E) for brandishing
or possession of a dangerous weapon resulted in an adjusted
offense level of 23 [Id. at ¶¶ 20, 24].
The base level offense for the Hobbs Act robbery in count 2
was 20 [Id. at ¶ 25]. Adding four points for
using a dangerous weapon in committing the crime boosted the
adjusted offense level to 24 [Id. at ¶¶
26, 30]. An upward, two-unit multiple count adjustment to the
greater of the two above offenses (24 in count 2) yielded a
combined adjusted offense level of 26 [Id. at
career offender designation upped his combined adjusted
offense level to 37, USSG § 4B1.1,  but a 3-point
reduction for acceptance of responsibility reduced his total
offense level to 34 [Id. at ¶¶ 35-38].
Petitioner's career offender status produced a criminal
history category of VI, see § 4B1.1(b), and his
resulting advisory guidelines range was 262 to 327
months' imprisonment [Id. at ¶¶ 53,
79]. The parties filed notices indicating that they had no
objections to the PSR [Docs. 43, 44, No. 2:10-CR-111].
on Petitioner's Rule 11(c)(1)(C) plea agreement, the
Court imposed a concurrent 240-month term of imprisonment on
each count and a two concurrent 3-year terms of supervised
release [Doc. 47 (Judgment), No. 2:10-CR-111]. Petitioner did
not file a direct appeal, consonant with the appeal-waiver
provision in the plea agreement [Doc. 38 at ¶ 8(a), No.
2:10-CR-111]. Instead, Petitioner submitted this pro se
§ 2255 motion to vacate [Doc. 1].
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).
warrant 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); Jones v. United
States, 178 F.3d 790, 796 (6th Cir. 1999) (observing
that a sentencing guidelines error “does not warrant
collateral relief under § 2255 absent a complete
miscarriage of justice”). Also, 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). The
Supreme Court has described the § 2255 remedy as
“comprehensive, ” but, at the same time, has
cautioned that “it does not encompass all claimed
errors in conviction and sentencing.” United States
v. Addonizio, 442 U.S. 178, 185 (1979).