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Mulkey v. United States

United States District Court, E.D. Tennessee, Greeneville

August 26, 2019

TERRY MULKEY, Petitioner,



         Before the Court is Petitioner's pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. [Doc. 1].[1] The United States has responded in opposition and Petitioner has filed a reply. [Docs. 6, 9]. For the reasons that follow, the petition will be denied in part and granted in part.

         I. BACKGROUND

         A federal grand jury charged Petitioner with conspiring to distribute and possess with the intent to distribute 50 grams or more of methamphetamine. [No. 2:15-CR-024, doc. 13]. In October 2015, Petitioner pled guilty pursuant to a written Rule 11(c)(1)(C) plea agreement to the lesser included offense of conspiring to distribute and possess with the intent to distribute five grams or more of methamphetamine. Id., doc. 64. In his plea agreement, Petitioner stipulated that he should be held responsible for at least 500 grams, but less than 1.5 kilograms, of actual methamphetamine. Id. The parties agreed that Petitioner would receive a sentence of 96 months' imprisonment, to run consecutive to a Georgia state sentence that he was currently serving. Id.

         By judgment entered January 28, 2016, this Court imposed a 96-month term of imprisonment, to be served consecutively to the referenced Georgia sentence-fully consistent with the Rule 11(c)(1)(C) plea agreement signed by Petitioner. Id., doc. 129. Petitioner then filed the instant pro se petition on February 3, 2017.


         The relief authorized by 28 U.S.C. § 2255 “does not encompass all claimed errors in conviction and sentencing.” United States v. Addonizio, 442 U.S. 178, 185 (1979). Rather, 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)). He “must clear a significantly higher hurdle than would exist on direct appeal” and establish a “fundamental defect in the proceedings which necessarily results in a complete miscarriage of justice or an egregious error violative of due process.” Fair v. United States, 157 F.3d 427, 430 (6th Cir. 1998) (citation and internal quotation omitted).

         III. ANALYSIS

         Petitioner articulates three grounds for collateral relief, each based on alleged ineffective assistance of counsel. To show that the “fundamental defect” in his proceeding was ineffective assistance of counsel, a petitioner must satisfy the two-part test set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984). First, the 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). Counsel's assistance is presumed to have been effective, and the 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 . . . strategy” (internal citation omitted)).

         Second, the petitioner must demonstrate “a reasonable probability that, but for [counsel's acts or omissions], the result of the proceeding would have been different.” Strickland, 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.” Id. at 691; accord Smith v. Robbins, 528 U.S. 259, 285-86 (2000). If a petitioner fails to prove that he sustained prejudice, the Court need not decide whether counsel's performance was deficient. See United States v. Hynes, 467 F.3d 951, 970 (6th Cir. 2006) (holding that alleged “flaws” in trial counsel's representation did not warrant a new trial where the claims, even if true, did not demonstrate that the jury would have reached a different conclusion).

         A. Claims One and Two

         In his first theory of ineffective assistance, Petitioner argues that counsel failed to contest the amount of methamphetamine for which Petitioner was held accountable. According to Petitioner, this was the result of counsel failing to obtain discovery or file pretrial motions, leading counsel to promise Petitioner that he would receive a prison sentence of no more than 33 months. By his second theory of ineffective assistance, Petitioner claims that counsel failed to ensure receipt of “time served” credit for the period between Petitioner's “arrest” and sentencing. [Docs. 1, 2]. Each of these claims is wholly belied by Petitioner's plea agreement and the colloquy at his October 1, 2015 change of plea hearing.

         To begin with the very obvious, Petitioner signed his plea agreement, affirming that it “constitute[d] the full and complete agreement and understanding between the parties concerning the defendant's guilty plea to the above-referenced charge(s), and [that] there are no other agreements, promises, undertakings, or understandings between the defendant and the United States.” [No. 2:15-CR-024, doc. 64, p.7]. By that agreement, Petitioner confirmed that he would be held accountable for at least 500 grams but less that 1.5 kilograms of actual methamphetamine. Id. p.3. Further, Petitioner expressly agreed therein “that a sentence of 96 months to run consecutive to the Georgia methamphetamine sentence that defendant is currently serving (Case Action #: 14-CR-01543-M, Superior Court of Whitfield Count, Georgia), is the appropriate disposition of this case.” Id.

         During the change of plea colloquy on October 1, 2015, the Court verified that Petitioner was not under intoxication or mental illness, and that he understood the purpose of the hearing. The Court confirmed that Petitioner had ample time to discuss his case and the charges against him with counsel. Under oath, Petitioner also affirmed that counsel advised him of the nature and meaning of the charges and every element of those offenses, and that counsel advised him as to any defense that he might have to the charges. Petitioner ...

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