United States District Court, E.D. Tennessee, Greeneville
Jordan United States District Judge
the Court is Petitioner David Keith Swatzell's pro se
motion to vacate, set aside, or correct his sentence under 28
U.S.C. § 2255 [Doc. 1],  and the United States'
response in opposition [Doc. 6]. The Court finds the
materials thus submitted, together with the record of the
underlying criminal case, conclusively show that Petitioner
is not entitled to relief on the claims asserted in his
motion. Accordingly, the Court will decide this matter
without an evidentiary hearing. See United States v.
Todaro, 982 F.2d 1025, 1028 (6th Cir. 1993). For the
reasons discussed below, the Court will find that
Petitioner's motion to vacate is without merit and, thus,
will DENY and DISMISS his
§ 2255 motion WITH PREJUDICE.
PROCEDURAL AND FACTUAL BACKGROUND
March 8, 2016, a federal grand jury issued an indictment
charging Petitioner and two co-defendants with conspiracy to
distribute and to possess with intent to distribute fifty
grams or more of methamphetamine, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(A), and 846 (Count 1) [Doc. 1,
Case No. 2:16-CR-33]. Petitioner alone was charged with
possession with the intent to distribute five grams or more
of methamphetamine, an offense under 21 U.S.C. §§
841(a)(1) and (b)(1)(B) (Count 4) [Id.]. Just under
two months later, Petitioner entered into a plea agreement
with the government [Doc. 28, Case. No. 2:16-CR-33].
Court draws the facts from those to which Petitioner
stipulated, as contained in the factual basis in the plea
agreement [Id. at ¶ 4]. In the factual basis,
Petitioner admitted that he was involved in a conspiracy to
distribute methamphetamine in the Greeneville, Tennessee area
of the Eastern District of Tennessee for financial gain and
that he regularly supplied his two co-defendants and others
with methamphetamine [Id. at ¶ 4(a)].
specifically, Petitioner acknowledged that on February 22,
2017, he supplied approximately 36 grams of methamphetamine
to his two co-defendants for purposes of resale and that they
were caught later that day with some of the methamphetamine
he had supplied to them and also with a loaded shotgun
[Id. at ¶ 4(b)]. The shotgun, so Petitioner
stipulated, had been used as collateral for a previous drug
deal between Petitioner and one co-defendant, and Petitioner
had returned the shotgun to that co-defendant during the drug
transaction earlier that day [Id.].
early morning hours of March 1, 2017, a Greene County Deputy
Sheriff saw Petitioner and a woman leave a local café
in Greeneville [Id. at ¶4(c)]. The Deputy
Sheriff knew that the woman had an active arrest warrant
against her so he ran the license plate on the vehicle that
the couple entered and saw that the plate had been switched
[Id.]. The Deputy Sheriff pulled behind the vehicle,
activated the blue lights on his cruiser, and pursued the
vehicle until Petitioner blew out the engine on the vehicle
[Id.]. The vehicle was searched and approximately 30
grams of methamphetamine, several ounces of marijuana,
hundreds of small baggies commonly associated with drug
trafficking, several pipes and various other paraphernalia,
digital scales, and 7 cell phones were discovered
an interview, Petitioner admitted to selling methamphetamine
to numerous individuals. He agreed, for purposes of the plea
agreement, that he should be held responsible for at least
150 grams but less than 500 grams of actual methamphetamine
[Id.]. Petitioner agreed to plead guilty to Count 1,
the methamphetamine conspiracy, as charged in the indictment,
with the remaining count to be dismissed at sentencing
[Id. at ¶¶ 1-2]. The plea
agreement provided that, in exchange for his guilty plea,
Petitioner waived his right to file a direct appeal, with one
exception, and his right to file a § 2255 motion or a
collateral attack on his conviction or sentence, excluding
claims of prosecutorial misconduct or ineffective assistance
of counsel [Id. at ¶ 10(a) and (b)].
14, 2016, some six weeks after entry of the plea agreement,
Petitioner pled guilty to the methamphetamine conspiracy
charge in count 1 in the indictment [Doc. 41, Case. No.
2:16-CR-33]. Thereafter, the United States Probation Office
issued a Presentence Investigation Report (“PSR”)
to assist the Court in sentencing Petitioner [Doc. 45, PSR
(sealed), Case No. 2:16-CR-33].
United States Sentencing Guideline (“USSG”)
§ 2D1.1 for § 846 offenses involving at least 50
grams but less than 150 grams of actual methamphetamine, the
probation officer who prepared the PSR determined that
Petitioner's base offense level was 30 [Id. at
¶ 18]. Two levels were added under USSG § 2D
1.1(b)(1) for possession of a dangerous weapon, and the
addition of two levels for reckless endangerment during
flight under USSG § 3C1.1 resulted in an adjusted
offense level of 34 [Id. at ¶¶ 19, 22-23].
A two-level and a one-level reduction for acceptance of
responsibility yielded a total offense level of 31 which,
along with a criminal history category of VI, resulted in an
advisory Guidelines range of 188 months to 235 months
[Id., ¶¶ 25-27, 47, 68]. The PSR noted
that Petitioner's statutory sentence was ten years to
life imprisonment [Id. at ¶ 67].
objected to the dangerous-weapon enhancement as recommended
in the PSR, but the Court overruled his objection based on
his stipulations regarding the firearm, dismissed the
remaining count upon motion of the government, and sentenced
Petitioner to 188 months' imprisonment, the lowest
sentence in his Guidelines range, to be served concurrently
with any sentence in his then-pending Greene County Sessions
Court case, Case No. GS-16CR-642, and to be followed by five
years of supervised release [Docs. 47, 74, and 788, Case No.
keeping with the appeal waiver in the plea agreement,
Petitioner did not file a direct appeal. Instead, he
submitted this timely pro se § 2255 motion to vacate on
April 4, 2017, alleging several claims of ineffective
assistance of counsel and one claim of prosecutorial
misconduct [Doc. 1].
STANDARDS OF REVIEW
Motions to Vacate
obtain relief under 28 U.S.C. § 2255, 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)). To warrant relief under 28 U.S.C. § 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. Brecht
v. Abrahamson, 507 U.S. 619, 637 (1993) (citation
omitted) (§ 2254 case); Jefferson v. United
States, 730 F.3d 537, 549 (6th Cir. 2013) (applying
Brecht test to § 2255 motion). A petitioner
“must clear a significantly higher hurdle than would
exist on direct appeal” to secure collateral relief.
United States v. Frady, 456 U.S. 152, 166 (1982);
Regalado v. United States, 334 F.3d 520, 528 (6th
Cir. 2003) (citing Frady, 456 U.S. at 166).
defendant files a § 2255 motion, he must set forth facts
which entitle him to relief. Green v. Wingo, 454
F.2d 52, 53 (6th Cir. 1972); O'Malley v. United
States, 285 F.2d 733, 735 (6th Cir. 1961).
“Conclusions, not substantiated by allegations of fact
with some probability of verity, are not sufficient to
warrant a hearing.” O'Malley, 285 F.2d at
735 (citations omitted). A motion that merely states general
conclusions of law without substantiating allegations with
facts is without legal merit. Loum v. Underwood, 262
F.2d 866, 867 (6th Cir. 1959); United States v.
Johnson, 940 F.Supp. 167, 171 (W.D. Tenn. 1996).
Ineffective Assistance of Counsel
§ 2255 movant claims he was denied his Sixth Amendment
right to effective assistance of counsel, a court must
presume that counsel provided effective assistance, and the
movant bears the burden of showing otherwise. Mason v.
Mitchell, 320 F.3d 604, 616-17 (6th Cir. 2003). To meet
that burden, a movant must prove that specific acts or
omissions by his attorney were deficient and that the
attorney failed to provide “reasonably effective
assistance, ” Strickland v. Washington, 466
U.S. 668, 687 (1987), which is measured by “prevailing
professional norms, ” Rompilla v. Beard, 545
U.S. 374, 380 (2005). “[T]he constitutional right at
issue here is ultimately the right to a fair trial, not to
perfect representation.” Smith v. Mitchell,
348 F.3d. 177, 201 (6th. Cir. 2003) (citing
a petitioner must demonstrate “a reasonable probability
that, but for [counsel's acts or omissions], the result
of the proceedings would have been different.”
Strickland, 466 U.S. at 694. “A reasonable
probability is a probability sufficient to undermine
confidence in the outcome, ” id., and
“requires a substantial, not just conceivable,
likelihood of a different result.” Cullen v.
Pinholster, 563 U.S. 170, 189 (2011) (citation and
internal quotation marks omitted). In the guilty plea
context, to establish prejudice a petitioner “must show
that there is a reasonable probability that, but for
counsel's errors, he would not have pleaded guilty and
would have insisted on going to trial.” Hill v.
Lockhart, 474 U.S. 52, 59 (1985). Yet, “[a]n 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.”
Strickland, 466 U.S. at 691; see also Smith v.
Robbins, 528 U.S. 259, 285-86 (2000). Furthermore, if
“it is easier to dispose of an ineffectiveness claim on
the ground of lack of sufficient prejudice . . . that course
should be followed.” Strickland, 466 U.S. at
Strickland's high bar is never an easy task and
the strong societal interest in finality has ‘special
force with respect to convictions based on guilty
pleas.'” Lee v. United States, 137 S.Ct.
1958, 1967 (2017) (quoting United States v.
Timmreck, 441 U.S. 780, 784 (1979) (internal citation