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Holland v. United States

United States District Court, E.D. Tennessee

August 1, 2019




         Petitioner 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].[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].

         The 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.[2]


         Petitioner 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.].

         Respondent 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 merit.

         A. Procedural and Factual Background

         Petitioner 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].

         As a factual basis for his plea, Petitioner stipulated to the following facts:

         Just 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 equipment.

         Some 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 Nissan.

         Officers 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.

         To show 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.

         On 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].

         The 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 ¶¶ 31-34].

         Petitioner's career offender designation upped his combined adjusted offense level to 37, USSG § 4B1.1, [3] 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].

         Based 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].


         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 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).

         C. ...

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