United States District Court, E.D. Tennessee, Greeneville
Jordan United States District Judge.
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]. 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.
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.
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.
STANDARD OF REVIEW
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
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)).
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
Claims One and Two
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.
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
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