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Ellis v. United States

United States District Court, M.D. Tennessee, Nashville Division

August 9, 2019




         Petitioner filed a Motion to Vacate, Set Aside, or Correct Sentence in accordance with 28 U.S.C. § 2255. For the reasons stated herein, Petitioner's Motion, as amended, will be DENIED, and this action will be DISMISSED.


         On April 14, 2014, Metropolitan Nashville Police Department officers responded to a call regarding a suspicious male around the caller's apartment complex who might be selling drugs. (Doc. No. 21 at 2.) Upon arrival, officers noticed Petitioner Nicholas Demontez Ellis carrying a plastic bag and walking toward his vehicle, which was parked near the apartment complex. (Id.) As the officers neared Petitioner, Petitioner dropped the bag on the ground by his vehicle. (Id. at 3.) As Petitioner was about to enter his vehicle, an officer said, “Hey, let me talk to you for a second.” (Id.) Petitioner stopped and after some discussion, gave verbal permission for the officers to frisk him. (Id.) As officers were searching Petitioner, they noticed marijuana in the bag Petitioner had dropped. (Id.) The officers then arrested Petitioner for the marijuana, and while searching his person and vehicle after the arrest, found a loaded gun, a small amount of cocaine, and 16 additional ounces of marijuana.[1] (Id.)

         On December 17, 2014, a federal grand jury indicted Petitioner in No. 3:14-cr-00196, with unlawful possession of a firearm by a convicted felon (Count One); possession of marijuana with intent to distribute (Count Two); and possession of a firearm in furtherance of a drug-trafficking offense (Count Three). (Doc. No. 1, No. 3:14-cr-00196.)

         On May 18, 2015, Petitioner's attorney, Erik Herbert (“Herbert”), filed a motion to suppress all evidence seized from the person and vehicle of Petitioner, arguing (among other things) that the officers did not have reasonable suspicion that Petitioner had committed or was about to commit a crime and therefore lacked probable cause to seize Petitioner. (Doc. No. 16, No. 3:14-cr-00196.) However, with the motion to suppress pending, the parties negotiated a plea agreement. (Doc. No. 21 at 6.) At the time, Petitioner was facing a guideline range of 262-327 months, even after guideline credit for pleading guilty. (Id.) But pursuant to the plea agreement, which Herbert had urged Petitioner to accept, Petitioner agreed to serve 168 months and to drop the motion to suppress. (Id. at 8.) After accepting Petitioner's guilty plea, the court sentenced Petitioner to the agreed-upon sentence, (id.), which was 94 months below the bottom of the above-noted advisory guideline sentence range.

         Petitioner timely commenced this action by filing his original Motion under § 2255 on February 3, 2017. (Doc. No. 1 at 1.) Thereafter, he filed the Amended Motion. Petitioner argues that Herbert was ineffective for mishandling the motion to suppress by failing to recognize the applicability of United State v. Johnson., 620 F.3d 685 (6th Cir. 2010). (Doc. No. 21 at 8-10.) Petitioner also argues that Herbert was ineffective for advising Petitioner that the argument for a downward variance, absent a plea agreement, would be weak and that the court would likely sentence Petitioner within the guideline sentencing range if the court found Petitioner guilty. (Id. at 10.) Petitioner seeks an evidentiary hearing to determine whether Herbert's assistance was ineffective. (Id.)


         To prevail on a § 2255 motion, a petitioner must demonstrate that the court imposed the sentence in violation of the Constitution, the court was without jurisdiction to impose such a sentence, the sentence was more than the maximum sentence authorized by law, or the sentence is otherwise subject to collateral attack. See 28 U.S.C. § 2255 (2018). Section 2255 requires “a hearing on such allegations unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” Fontaine v. U.S., 411 U.S. 213, 215 (1973) (internal quotation marks omitted); Ray v. U.S., 721 F.3d 758, 760-61 (6th Cir. 2013); see also Dagdag v. United States, No. 3:16-cv-364-TAV, 2019 WL 2330274, at *1 n.1 (E.D. Tenn. May 31, 2019) (internal quotation marks omitted) (citing Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999)) (“[W]here the record conclusively shows that the petitioner is entitled to no relief, a hearing is not required.”). A petitioner is not entitled to an evidentiary hearing if he has not alleged any facts that, if true, would entitle the petitioner to federal habeas relief. See McSwain v. Davis, 287 Fed.Appx. 450, 458 (6th Cir. 2008). Even when material facts are in dispute, an evidentiary hearing is unnecessary if the petitioner is conclusively entitled to no relief. See Amr v. United States, 280 Fed.Appx. 480, 485 (6th Cir. 2008).


         A defendant has a Sixth Amendment right to “reasonably effective assistance” of counsel. Strickland v. Washington, 466 U.S. 668, 687 (1984). “It has long been settled that a guilty plea is open to attack on the ground that counsel did not provide the defendant with reasonably competent advice.” Hunter v. United States, 160 F.3d 1109, 1115 (6th Cir. 1998) (internal quotation marks omitted). In Strickland, the Supreme Court put forth a test to evaluate claims of ineffective assistance of counsel:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a break down in the adversary process that rendered the result unreliable.

Strickland, 466 U.S. at 687. Petitioner bears the burden of proving by a preponderance of the evidence that counsel was deficient. See Short v. United States, 471 F.3d 686, 691 (6th Cir. 2006) (citing Pough v. United States, 442 F.3d 959, 964 (6th Cir. 2006)).

         Under the first prong of the Strickland test, a petitioner must establish that his attorney's representation fell below an objective standard of reasonableness. 466 U.S. at 688. “[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . . . ” Id. at 689. Strategic choices made by counsel after thorough investigation are virtually unchallengeable. Id. at 690. The second prong of the Strickland test requires a petitioner to demonstrate with “a reasonable probability that, but for counsel's errors, he would ...

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