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Swatzell v. United States

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

October 21, 2019



          Leon Jordan United States District Judge

         Before 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], [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.


         On 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].

         The 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)].

         More 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.].

         In the 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 [Id.].

         During 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)].

         On June 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].

         Using 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].

         Petitioner 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. 2:16-CR-33].

         In 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].


         A. Motions to Vacate

         To 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).

         When a 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).

         B. Ineffective Assistance of Counsel

         When a § 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 Strickland).

         Second, 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 697.

         “Surmounting 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 omitted).

         III. ...

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