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Barnes v. United States

United States District Court, E.D. Tennessee

August 1, 2019

LESTER ALLEN BARNES, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          THOMAS A. VARLAN UNITED STATES DISTRICT JUDGE.

         Petitioner Lester Allen Barnes has filed a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 [Doc. 1]. At the Court's direction, the government filed a response [Doc. 16], and petitioner filed a late reply [Doc. 17]. Having considered the pleadings and the record, along with the relevant law, the Court finds that it is unnecessary to hold an evidentiary hearing, [1] and petitioner's § 2255 motion will be denied.

         I. Background

         On October 29, 2014, a jury found petitioner guilty of all counts against him in the indictment, including: three counts of distribution of oxycodone, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C); one count of possession of oxycodone with intent to distribute, also in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C); one count of possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i); and one count of possession of a firearm or ammunition by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) [Doc. 45, 3:13-CR-117].[2] Evidence at trial included testimony by law enforcement and a confidential informant, which established that petitioner sold oxycodone pills on several occasions and often had firearms with him during the sales [Doc. 64 pp. 30, 34, 37, 39, 68-69, 79]. The defense also called four witnesses, which included petitioner's friends and family [see Doc. 65 pp. 62-96]. This Court ultimately sentenced petitioner to a within-guidelines term of imprisonment of 106 months, consisting of 46 months on the felon-in-possession and drug offenses and a consecutive 60 months for the § 924(c) offense [Docs. 49 p. 16; 59]. The Sixth Circuit Court of Appeals affirmed petitioner's conviction and sentence, 822 F.3d 914, and petitioner timely filed his § 2255 motion on July 13, 2016.

         II. Legal Standard

         The 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 because of constitutional error, 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)).

         A § 2255 petitioner has the burden of proving that he or she is entitled to relief under § 2255 by a preponderance of the evidence, Pough v. United States, 442 F.3d 959, 964 (6th Cir. 2006), and must clear a significantly higher hurdle than would exist on direct appeal. United States v. Frady, 456 U.S. 152 (1982). Further, a petitioner may not relitigate claims that were raised and considered on direct appeal absent an intervening change in the law, or other such extraordinary circumstance. Wright v. United States, 182 F.3d 458, 467 (6th Cir. 1999); Jones v. United States, 178 F.3d 790, 796 (6th Cir. 1999).

         III. Analysis

         Petitioner first argues that the Presentence Investigation Report (“PSR”) improperly enhanced his base offense level and criminal history score based on his 1998 state drug conviction, adversely affecting his guideline imprisonment range for the drug and felon-in-possession charges [Doc. 2 pp. 3-5, 8-13]. Petitioner also alleges that his trial counsel was ineffective for (1) allegedly forging his signatures on two stipulations used at trial; (2) failing to use the findings of the Administrative Law Judge from his state forfeiture case; (3) mistakenly asking the jury to find him guilty in his closing argument; and (4) failing to use his medical records for impeachment of witnesses at trial or mitigation at sentencing [Id. pp. 17-20]. The Court will address each argument in turn.

         A. Petitioner's Challenge to his Guideline Range

         Because the United States Sentencing Guidelines are advisory, a petitioner's claim that the Court erred in calculating his guideline range does not allege that his sentence is unconstitutional or that the Court lacked jurisdiction to impose his sentence. See Gibbs v. United States, 655 F.3d 473, 479 (6th Cir. 2011); Grant v. United States, 72 F.3d 503, 506 (6th Cir. 1996). Accordingly, such a claim is ordinarily not cognizable on collateral review under § 2255. See Grant, 72 F.3d at 506. Petitioner did raise this same claim on direct appeal, where the Sixth Circuit held this Court did not err in sentencing petitioner according to the PSR's guideline calculation. United States v. Barnes, 822 F.3d 914, 924-26 (6th Cir. 2016). But the Sixth Circuit has also held that claims raised on direct appeal may not be relitigated on collateral review absent “highly exceptional circumstances, ” such as an intervening change in the law. DuPont v. United States, 76 F.3d 108, 110 (6th Cir. 1996). Petitioner has not alleged any exceptional circumstances that would warrant revisiting this issue. For both reasons, petitioner's challenge to his sentencing guidelines calculation is not cognizable, and petitioner is not entitled to relief on this basis.

         B. Petitioner's Ineffective Assistance Claims

         Claims of ineffective assistance of counsel, on the other hand, are cognizable under § 2255. Massaro v. United States, 538 U.S. 500, 508-09 (2003). The Sixth Amendment guarantees criminal defendants the right to “reasonably effective assistance” of counsel. Strickland v. Washington, 466 U.S. 668, 687 (1984). A petitioner alleging ineffective assistance of counsel must first establish that his counsel's performance was deficient, that is, falling “below an objective standard of reasonableness . . . under prevailing professional norms.” Id. at 688. Counsel is presumed to have provided effective assistance, and petitioner bears the burden of showing otherwise. Mason v. Mitchell, 320 F.3d 604, 616- 17 (6th Cir. 2003); see also Strickland, 466 U.S. at 689 (a reviewing court “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 trial strategy”) (internal citation omitted).

         A petitioner must also show that his attorney's deficient performance prejudiced his defense, in the sense that “but for [counsel's error, ] the result of the proceedings would have been different.” 466 U.S. at 694. “An 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.” ...


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