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Holland v. United States

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

January 8, 2020

MARTY HOLLAND, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER DENYING § 2255 PETITION, DENYING CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS

          J. DANIEL BREEN UNITED STATES DISTRICT JUDGE

         Petitioner, Marty Holland, [1] 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.)[2] For the reasons that follow, the Petition is DENIED.

         BACKGROUND

         In 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, 37.)

         The 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.)

         At the 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 taken.

         DISCUSSION

         The inmate filed his Petition on August 29, 2016, asserting the following claims:

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).

         Respondent, 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. (D.E. 15-1.)

         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) (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).

         A § 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).

         Ineffective 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.

         In 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.

         To 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 ...


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