United States District Court, W.D. Tennessee, Eastern Division
ORDER DENYING § 2255 PETITION, DENYING
CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO APPEAL IN
DANIEL BREEN UNITED STATES DISTRICT JUDGE
Marty Holland,  has filed a pro se motion to vacate, set
aside, or correct his sentence (the “Petition”),
pursuant to 28 U.S.C. § 2255. (Docket Entry
(“D.E.”) 1.) For the reasons that follow, the
Petition is DENIED.
March 2015, a federal grand jury returned a three-count
indictment against the Defendant and his girlfriend, Tracy
Harris. (United States v. Holland, No.
1:15-cr-10020-JDB-1 (W.D. Tenn.) (“No.
15-cr-10020”), D.E. 2.) Holland was specifically named
in Count 1, which charged that he robbed “the Home
Banking Company, located in Selmer, Tennessee, ” in
violation of 18 U.S.C. § 2113(a). (Id., D.E. 2
at PageID 3.) With the aid of appointed counsel, he pleaded
guilty to Count 1 without an agreement with the Government.
(Id., D.E. 28, 50.) At his change of plea and
sentencing hearings, he was represented by Assistant Federal
Public Defender Christina M. Wimbley. (Id., D.E. 28,
presentence report (the “PSR”) calculated the
Defendant's advisory range of incarceration under the
United States Sentencing Commission Guidelines Manual (the
“Guidelines” or “U.S.S.G.”) to be
sixty-three to seventy-eight months' incarceration. (PSR
¶ 80.) The Government filed a sentencing memorandum
indicating that it intended to seek an above-Guidelines
sentence of at least 144 months. (No. 15-cr-10020, D.E. 36.)
sentencing hearing conducted on September 1, 2015, the
Government reported that it was recommending that
Holland's federal sentence run concurrently to any state
sentences he might receive on two additional robberies and
that it would consider leniency in Harris's sentence.
(Id., D.E. 51.) Defense counsel indicated that her
client was “willing to accept the 144 month upward
departure” and waive his right to appeal in exchange
for the Government's concessions. (Id., D.E. 51
at PageID 128-29.) The Court engaged in a colloquy with the
Defendant regarding the proposed sentence and waiver, in
which he stated that he agreed with the 144-month sentence
and that he was freely and voluntarily waiving his right to
appeal. (Id., D.E. 51.) He also indicated that he
had “approached” the Government with the offer to
waive his appeal rights, stating “[i]t was my
idea.” (Id., D.E. 51 at PageID 132.) The Court
imposed a sentence of 144 months' incarceration due to
the dangerousness of the robbery; the fact that the Defendant
had committed several robberies in a short period of time;
the fact that Holland had prior robbery, burglary, and
kidnapping convictions; and the impact on the victims.
(Id., D.E. 51.) The Court further ordered the
Defendant to serve three years of supervised release and pay
restitution and medical expenses. (Id., D.E. 51.)
The Court ruled that the sentence was to run concurrently to
sentences that might be imposed in state cases in Tennessee
and Mississippi and found that Holland had freely and
voluntarily waived his right to appeal his sentence.
(Id., D.E. 51.) Neither party objected to the
sentence (id., D.E. 51) and no direct appeal was
inmate filed his Petition on August 29, 2016, asserting the
Claim 1: The conviction resulted from evidence gathered in an
unconstitutional search of Petitioner's home.
Claim 2: The “[c]onviction [was] obtained by use of
evidence obtained pursuant to an unlawful arrest.”
(D.E. 1 at PageID 4.)
Claim 3: Counsel rendered ineffective assistance by failing
to argue that the arrest and search were unlawful (Claim 3A)
and by promising Petitioner that he would not receive an
upward departure (Claim 3B).
the United States of America, filed a response to the
Petition (D.E. 8), along with an affidavit of counsel (D.E.
8-1). The Government argues that Claims 1 and 2 are not
properly before the Court and that Claims 3A and 3B are
without merit. Although Petitioner did not file a reply, he
submitted a letter to the Court on April 12, 2019, insisting
that his claims are meritorious. (D.E. 15.) The letter was
accompanied by documents purportedly supporting his claims.
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) (internal quotation marks omitted).
A § 2255 petitioner bears the burden of establishing
entitlement to relief. Pough v. United States, 442
F.3d 959, 964 (6th Cir. 2006).
§ 2255 motion is not a substitute for a direct appeal.
Ray v. United States, 721 F.3d 758, 761 (6th Cir.
2013). Generally, “[d]efendants must assert their
claims in the ordinary course of trial and direct
appeal.” Grant v. United States, 72 F.3d 503,
506 (6th Cir. 1996). Constitutional claims that could have
been raised on direct appeal, but were not, will be barred by
procedural default unless the defendant demonstrates cause
and prejudice sufficient to excuse his failure to raise those
issues previously. See, e.g., El-Nobani v.
United States, 287 F.3d 417, 420 (6th Cir. 2002).
Alternatively, a defendant may obtain review of a
procedurally defaulted claim by demonstrating he is
“actually innocent.” Bousley v. United
States, 523 U.S. 614, 622 (1998).
assistance of counsel is an “error of constitutional
magnitude” redressable in a § 2255 proceeding.
Pough, 442 F.3d at 964. 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 articulated in Strickland v.
Washington, 466 U.S. 668 (1984). See Robins v.
Fortner, 698 F.3d 317, 329 (6th Cir. 2012). To succeed
on such a claim, a petitioner must demonstrate two elements:
(1) “that counsel's performance was
deficient” and (2) “that the deficient
performance prejudiced the defense.”
Strickland, 466 U.S. at 687. “The benchmark
for judging any claim of ineffectiveness must be whether
counsel's conduct so undermined the proper functioning of
the adversarial process that the trial cannot be relied on as
having produced a just result.” Id. at 686.
order to establish deficient performance, a petitioner
“must show that counsel's representation fell below
an objective standard of reasonableness.” Id.
at 687-88. A court considering a claim of ineffective
assistance must apply “a strong presumption” that
the attorney's representation was “within the wide
range of reasonable professional assistance; that is, the
defendant must overcome the presumption that, under the
circumstances, the challenged action might be considered
sound trial strategy.” Id. at 689 (internal
quotation marks omitted). An attorney's “strategic
choices” are “virtually unchallengeable” if
based on a “thorough investigation of law and facts
relevant to plausible options[.]” Id. at
690-91. “[S]trategic choices made after less than
complete investigation are reasonable precisely to the extent
that reasonable professional judgments support the
limitations on investigation.” Id.
prove prejudice, a petitioner must establish “a
reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different.” Id. at 694. “A
reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id.
“It is not enough ‘to show that the errors had
some conceivable effect on the outcome of the
proceeding.'” Harrington v. Richter, 562
U.S. 86, 104 (2011) (quoting Strickland, 466 U.S. at
693). Instead, “[c]ounsel's errors must ...