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Austin v. United States

United States District Court, W.D. Tennessee, Eastern Division

October 10, 2019

JACK RAY AUSTIN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER GRANTING MOTION TO WITHDRAW MOTION TO AMEND, DIRECTING CLERK TO TERMINATE MOTION, DENYING MOTION FOR WRIT OF MANDAMUS, DENYING § 2255 PETITION, DENYING A CERTIFICATE OF APPEALABILITY AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS

          J. DANIEL BREEN UNITED STATES DISTRICT JUDGE.

         On April 9, 2018, Petitioner, Jack Ray Austin, filed a pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (the “Petition”). (Docket Entry (“D.E.”) 1.) For the following reasons, the Petition is DENIED.[1]

         BACKGROUND

         On June 7, 2002, Austin entered a plea of guilty in the United States District Court for the Western District of Tennessee to one count of armed bank robbery, in violation of 18 U.S.C. § 2113(a) and (d), and one count of using a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c). (United States v. Austin, No. 1:02-cr-10007-JDB-1 (“No. 02- cr-10007”), D.E. 51, 52 (W.D. Tenn.).) The Court conducted a hearing in January 2003 and sentenced the Defendant to sixty-six months' imprisonment on Count 1 and eighty-four months of incarceration on Count 2, for a total term of imprisonment of 150 months.[2] (Id., D.E. 79.) Five years of supervised release on each conviction was also imposed. (Id.)

         Twelve years later, while on supervised release, Austin entered a bank in Alamo, Tennessee, wearing “a black ski mask and blue latex gloves.” (2015 Presentence Report (the “2015 PSR”) at 4.) He approached a teller, “pointed a firearm at her, handed her a bag, and ordered her to put money in the bag, and she complied.” (Id.) He “then went to a second teller” and did the same. (Id.)

         In November 2015, a federal grand jury sitting in the Western District of Tennessee returned an indictment charging Austin with armed bank robbery, in violation of 18 U.S.C. § 2113(a). (United States v. Austin, 1:15-cr-10094-JDB-1 (“No. 15-cr-10094”), D.E. 1 (W.D. Tenn.).) A petition for offender under supervision (the “Supervision Petition”) was filed in his 2002 criminal case, charging him with violating the conditions of supervised release imposed in that case. (No. 02-cr-10007, D.E. 99.) The document alleged that Austin committed crimes while on supervised release and failed to perform the required community service. (Id., D.E. 99 at PageID 162.) In June 2016, Austin pleaded guilty to bank robbery without a plea agreement and admitted to the violations set forth in the Supervision Petition. (No. 15-cr-10094, D.E. 47 at PageID 138.) During the plea hearing, the Defendant acknowledged, under oath, that he could be required to serve up to ninety-six months in prison for the supervised release violations. (Id., D.E. 47 at PageID 146.)

         Austin was assigned a base offense level of 20 for the robbery offense, pursuant to § 2B3.1(a) of the United States Sentencing Commission Guidelines Manual (the “Guidelines” or “U.S.S.G.”), and also received the following enhancements: 2 points under § 2B3.1(b)(1) for taking “the property of a financial institution, ” and 6 points under § 2B3.1(b)(2)(B) because a firearm was “otherwise used.”[3] (2015 PSR at 6.) He received a 3-point decrease in his offense level for acceptance of responsibility. (Id. at 6-7 (citing U.S.S.G. § 3E1.1(a), (b).) “Based upon a total offense level of 25 and a criminal history category of III, the guideline imprisonment range [was] 70 months to 87 months.” (Id. at 20 (bolding omitted).) The advisory range on the supervised release violations, which was set forth in a worksheet attached to the Supervision Petition (the “Worksheet”), was determined to be forty-six to fifty-seven months' incarceration.[4](No. 02-cr-10007, D.E. 99 at PageID 164.)

         A consolidated sentencing hearing was conducted in October 2016. (See No. 15-cr-10094, D.E. 48.) The Court sentenced Austin to consecutive terms of imprisonment of seventy months for the armed robbery and forty-six months for the supervised release violations. (Id., D.E. 48 at PageID 181-82.)

         In his direct appeal, Austin challenged the imposition of the supervised release sentence consecutively to the armed robbery sentence. United States v. Austin, No. 17-5592, D.E. 29-2 at 2 (6th Cir. Mar. 9, 2018). The Sixth Circuit rejected the argument. Id., D.E. 29-2 at 2-3.

         DISCUSSION

         Petitioner asserts three claims of attorney ineffective assistance. In Claims 1 and 2, he maintains that his trial and appellate counsel should have argued that the “[C]ourt err[ed] in sentencing [him] ¶ 46 months” on the supervised release violation because the “statutory maximum [was] 36 months.” (D.E. 1 at PageID 6.) He contends in Claim 3 that his appellate counsel was ineffective for failing to argue that the Government did not establish the factual predicate for the 6-point enhancement under the Guidelines.[5] (Id. at PageID 10.) Respondent argues that the claims are without merit. (D.E. 15 at PageID 62-64.) The Court agrees.

         A. Legal Standards

         A prisoner seeking to vacate his sentence under § 2255 “must allege either (1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law that was so fundamental as to render the entire proceeding invalid.” Short v. United States, 471 F.3d 686, 691 (6th Cir. 2006) (citation and internal quotation marks omitted). Ineffective assistance of counsel is an “error of constitutional magnitude.” See Pough v. United States, 442 F.3d 959, 964 (6th Cir. 2006).

         A claim that an attorney's ineffective assistance has deprived a criminal defendant of his Sixth Amendment right to counsel is controlled by the standards stated in Strickland v. Washington, 466 U.S. 668 (1984). To succeed on such an assertion, a petitioner must demonstrate two elements: (1) “that counsel's performance was deficient”; and (2) “that the deficient performance prejudiced the defense.” Id. at 687. “The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct ...


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