ROBERT E. WIER, Magistrate Judge.
Movant, Joseph Weir, is a federal inmate. DE #151 (Motion), at 1. On February 22, 2016,
On March 8, 2012, a grand jury indicted Weir for distinct kidnapping and bank robbery events, to wit: on charges of violating, on May 31, 2011, 18 U.S.C. §§ 1201(a)(1) and 924(c)(1) (Counts 1 & 2), and on December 5, 2011, §§ 2113(a) and (d), and 924(c)(1) (Counts 3 & 4). DE #1 (Indictment). After competency and suppression proceedings, Judge Reeves severed the sets of charges and assigned two jury trials. DE #66. Weir went through both trials, and the juries convicted on all counts. DE ##87, 113 (Jury Verdicts). Judge Reeves sentenced Weir, in a unified proceeding, on April 19, 2013. DE #122 (Sentencing Minute Entry). Movant received a total prison sentence of 711 months followed by a total 5-year term of supervised release. DE #124 (Judgment). Weir appealed; the Sixth Circuit affirmed. United States v. Weir, 587 F. App'x 300 (6th Cir. 2014). The Supreme Court denied a petition for a writ of certiorari. DE #147 (Order); Weir v. United States, 135 S.Ct. 1455 (2015). On February 22, 2016, Weir timely submitted a § 2255 motion to vacate. DE #151. The Government responded. DE #163. Weir did not reply. The motion stands ripe for review. The Court wholly rejects each of Movant's varied claims and recommends dismissal. No basis exists for a Certificate of Appealability.
Under 28 U.S.C. § 2255, a federal prisoner may obtain post-conviction relief if the subject sentence violates the Constitution or federal law, the federal court lacked jurisdiction to impose such sentence, or the sentence exceeds the maximum authorized by law. 28 U.S.C. § 2255(a); Mallett v. United States, 334 F.3d 491, 496-97 (6th Cir. 2003) ("In order to prevail upon a § 2255 motion, the movant must allege as a basis for relief: `(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.'" (quoting Weinberger v. United States, 268 F.3d 346, 351 (6th Cir. 2001))). A defendant alleging a constitutional basis must establish "an error of constitutional magnitude" and show that the error had a "substantial and injurious effect or influence on the proceedings" in order to obtain § 2255 relief. Watson v. United States, 165 F.3d 486, 488 (6th Cir. 1999) (citing Brecht v. Abrahamson, 113 S.Ct. 1710, 1721-22 (1993)). When alleging a non-constitutional error, a defendant must prove that the error constituted a "`fundamental defect which inherently results in a complete miscarriage of justice,' or, an error so egregious that it amounts to a violation of due process." United States v. Ferguson, 918 F.2d 627, 630 (6th Cir. 1990) (quoting Hill v. United States, 82 S.Ct. 468, 471 (1968)); see also Watson, 165 F.3d at 488. In making a § 2255 motion, a movant generally bears the burden of proving factual assertions by a preponderance of the evidence. McQueen v. United States, 58 F. App'x 73, 76 (6th Cir. 2003) (per curiam) ("Defendants seeking to set aside their sentences pursuant to 28 U.S.C. § 2255 have the burden of sustaining their contentions by a preponderance of the evidence.").
In his § 2255 motion, Weir (nominally) requests relief based on four allegations of ineffective assistance of counsel (IAC), though the claims have numerous subparts, often overlap, and raise other matters outside the IAC scope (e.g., ground three's inclusion of a claim of cumulative error). All theories—whatever the basis—plainly fail under 28 U.S.C. § 2255.
When asserting an ineffective assistance claim, a movant must prove both deficient performance and prejudice. Strickland v. Washington, 104 S.Ct. 2052, 2064 (1984); Campbell v. Bradshaw, 674 F.3d 578, 586 (6th Cir. 2012); Pough v. United States, 442 F.3d 959, 964 (6th Cir. 2006) (noting that a movant must prove ineffective assistance by a preponderance of the evidence). In order to prove deficient performance, a movant must show that "counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 104 S. Ct. at 2064. A movant meets this burden by showing "that counsel's representation fell below an objective standard of reasonableness" as measured under "prevailing professional norms" and evaluated "considering all the circumstances." Id. at 2064-65. Judicial scrutiny of counsel's performance, however, is "highly deferential," featuring a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance[.]" Id. at 2065.
Deficient performance is considered constitutionally prejudicial only when "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. at 2064. In order to prove prejudice, a movant "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 2068. When evaluating prejudice, courts generally must take into consideration the "totality of the evidence before the judge or jury." Id. at 2069. In the sentencing context, ineffective assistance "can result in Strickland prejudice because any amount of additional jail time has Sixth Amendment significance." Lafler v. Cooper, 132 S.Ct. 1376, 1386 (2012) (internal quotation marks, alteration, and citation omitted).
First, Weir argues:
DE #151, at 4 (all as in original). Weir provided further detail, of sorts, in the accompanying memorandum. DE #151-1, at 2-4. His first and second affidavits also concern these matters. DE ##151-2, 151-3. Weir's supplementation again addresses this issue. DE #161. The United States responded in opposition. DE #163, at 6-7.
This substantive claim (now repackaged as an IAC claim) has previously been rejected multiple times and still has no merit. The Court perceives Weir to make three categories of IAC claims here: (1) Counsel, Hon. Steven N. Howe, failed to investigate and argue Weir's drug abuse and mental health history; (2) Mr. Howe failed to investigate or argue Weir's habit of invoking Miranda rights; and (3) Mr. Howe failed to argue that Weir's post-Miranda statements were involuntary.
"A § 2255 motion may not be used to relitigate an issue that was raised on appeal absent highly exceptional circumstances." DuPont v. United States, 76 F.3d 108, 110 (6th Cir. 1996). Such a highly exceptional circumstance is an intervening change in the law. Id. Weir points to no such circumstance here. A habeas court need not consider claims that were "raised and duly rejected in [Petitioner]'s direct appeal." Myers v. United States, 198 F.3d 615, 619 (6th Cir. 1999). Weir may not use § 2255 "to relitigate" issues already decided. Wright v. United States, 182 F.3d 458, 467 (6th Cir. 1999).
The District Court and the Sixth Circuit both previously squarely rejected Weir's arguments concerning the Miranda issue. Because the underlying substantive allegations have no merit, Mr. Howe obviously was not ineffective in any way. "Counsel [is] not . . . unconstitutionally ineffective for failing to raise . . . meritless arguments." Mapes v. Coyle, 171 F.3d 408, 427 (6th Cir. 1999). Regardless, substantively, Weir's assertions are wrong empirically. Mr. Howe did present information concerning Weir's drug abuse and mental health history to the Court, and he did exhaustively challenge and argue the Miranda issues.
Mr. Alerding, Defendant's first counsel, raised Weir's "many disorders," including bipolar disorder, ADHD, depression, and other "mental disorders" with the Court early in the case. DE #13 (Motion to determine competency). Counsel raised Defendant's mental-health-related hospitalizations and the extensive medical records. Id. Dr. Boutwell's extensive report was fully before the Court. DE #26. Following the competency evaluation, Mr. Alerding moved to withdraw, and the Court appointed Mr. Howe. Following a contested competency hearing, with Mr. Howe as counsel, and posthearing record supplementation, the Court found Weir to be competent. DE #41 (Order); see also DE #58 (Competency Hrg. Transcript). Mr. Howe noted that "the issue of [Weir's] competency was raised, an evaluation was completed and a hearing was conducted." DE #163-1 (Affidavit). Weir's "mental health history was presented at that time and the Court found that he was competent to stand trial." Id.
Mr. Howe later filed a motion to suppress. DE #47 (Motion to Suppress). He stated:
Id. at 2. The motion quoted extensively from the interview videotape. Id. at 2-5. Mr. Howe drew the Court's attention to Mr. Weir's admission of "smoking weed" and taking prescription pills, as well as Weir vomiting and wiping his face free of heavy sweat. Id. at 5-6. Mr. Howe proceeded to argue that Weir's Miranda waiver was not knowing and voluntary and that Weir's confession was not voluntary. Id. at 7-9. Mr. Howe specifically argued the issue of Weir's sobriety during the interrogation. Id. at 8. Further, as to mental health, Howe expressly cross-referenced the competency evaluation and Dr. Boutwell's report and testimony. DE ##47, at 9; 71, at 83. Judge Reeves specifically stated his intent to review the competency materials (which did encompass a complete history) in assessing the suppression motion. There is little more Howe could be expected to do to frame all of the waiver-assessment issues before the Court.
The District Court held an evidentiary hearing, DE ##62 (Minute Entry Order); 71 (Transcript), and denied the motion to suppress. DE #67 (Memo. Opinion & Order). The Court rejected each of Weir's arguments, including the sobriety-related ones. Id. at 7-8 (concluding that Weir "was `sufficiently in touch with reality' and that his Miranda waiver was knowing and intelligent"); id. at 9 (concluding the waiver was voluntary because Weir "has not established that he was severely impaired, nor that Detective West suspected such a condition").
The Sixth Circuit wholly affirmed, rejecting every one of Weir's arguments. Weir, 587 F. App'x at 303-05. The Court of Appeals concluded that "Weir implicitly waived his [Miranda] rights." Id. at 304. The appeals court also explicitly considered and rejected Weir's sobriety argument: "Weir was sufficiently sober to knowingly and intelligently waive his Miranda rights." Id. The Sixth Circuit "disagree[d]" with Weir's argument that his prior ingestion of heroin rendered his confession involuntary. Id. Finally, the court agreed that "West did not know of Weir's alleged intoxication[.]" Id. at 305.
Mr. Howe, in the habeas affidavit, confirmed that he "filed a Motion to Suppress the statement given by Mr. Weir[.]" DE #163-1. Weir testified at the first trial, and he "presented his evidence concerning his sobriety at the time of the confession[.]" Id. Counsel confirmed he again "contested" "the issue concerning [Weir's] sobriety and statements" at both trials. Id. At the second trial, Mr. Howe presented other evidence concerning these issues—including a video of the confession (in which the jury observed Weir's demeanor and communicative ability). Id.
On this clear and complete record, there is obviously no ineffectiveness. First, Weir cannot relitigate the underlying claim. Myers, 198 F.3d at 619; Wright, 182 F.3d at 467; DuPont, 76 F.3d at 110. Further, because the arguments are meritless (as the Sixth Circuit has already determined), and because Mr. Howe thoroughly raised them during the course of the investigation, Weir shows neither deficient performance nor prejudice. Mapes, 171 F.3d at 427.
Weir does not cite to the record concerning his allegation of prejudice concerning the "God I high" comment. The Court notes that a redacted DVD of the interview was in evidence. See DE #130 (Trial Tr.), at 13. Thus, the jury had the video and audio recording to judge for itself whether the contested statement was audible or inaudible. Judge Reeves specifically instructed the jury that the DVD—the recording—"is the evidence in the case" and that the transcript was only "a guide." Id. at 14-15. He told the jury that it must "rely upon what you see and hear and not what you read." Id. at 14. Regardless, any such prosecutorial comment obviously was immaterial to the voluntariness inquiry, given the District Court's and Sixth Circuit's rulings.
Weir further cites a litany of scattershot grievances with Mr. Howe, but none has merit. The Court has reviewed every transcript. Mr. Howe competently—indeed, zealously—argued in favor of suppression, both on sobriety-related and other grounds. For example, Weir lists a series of places he presumably received treatment and medicines he took. DE #151-2, at 2. The District Court was fully aware of Defendant's mental health history, via the competency report and counsel's briefing and argument. Even if this list had been before the District Court, the outcome of the case obviously would not have changed. As another example, Weir faults Howe for not investigating "jail records to verify facts" and FBI 302 reports. Id. at 3. Nothing that Weir proffers that these documents would have contained would likely change or in any way affect the results of the proceeding. There, thus, was (at least) no prejudice and therefore no ineffectiveness.
Weir also argues that Howe "failed . . . to request an expert in behaivoral science or in any field that could exam the petitioners overall state[.]" DE #161, at 4 (as in original). On this argument, Weir utterly fails to address Strickland's prejudice prong. He does not show, at a minimum, that the result of his trial likely would have been different if counsel had called an expert. Weir does not proffer the desired expert testimony, submit an expert report, or demonstrate that the jury would not still have convicted or that the result of the proceeding otherwise would have been different in light of the other overwhelming proof of guilt. See, e.g., Jackson v. McQuiggin, 553 F. App'x 575, 583-84 (6th Cir. 2014);
Finally, Weir faults Howe for not requesting a second psychological exam. DE #161, at 5. This is utterly meritless. The Court had the full results of the first exam before it, and Weir does not explain what a second exam would have revealed to change the outcome of the trial. The Court likewise clearly perceives no Strickland error regarding any statements, about which Weir provides no details, concerning his uncle. Id.
Weir's next argument is the following:
DE #151, at 5-6 (all as in original). Weir provided further detail in the accompanying memorandum. DE #151-1, at 3-5. The United States responded in opposition. DE #163, at 8-9.
The gist of this argument, as far as the Court can tell, concerns the Court's treatment of Jurors 340 and 342.
Mr. Howe immediately moved for a mistrial. Id. The Court indicated that there was no indication that "this information would affect either juror['s] ability to be fair and impartial." Id. Nevertheless, Judge Reeves voir dired both jurors. Juror 342 indicated the prior relationship with LeAnn could possibly affect her ability to be impartial. Id. at 49-50. Juror 340 said that the relationship with LeAnn would not in any way affect her ability to be fair and impartial to both sides. Id. at 53-54. Mr. Howe then renewed the motion for a mistrial. Id. at 56. The Court denied the motion for a mistrial but, out of an abundance of caution, excused Juror 342. Id. at 57. Judge Reeves specifically instructed both jurors not to discuss the conversations with any other member of the jury. Id. at 52, 55. The District Judge instructed the full panel "not to draw any inference" from the dismissal of one juror. Id. at 60. Later, Mr. Howe again renewed the motion for a mistrial based on the juror incident. DE #130, at 27. The Court again denied it. Id. at 31.
On appeal, the Sixth Circuit rejected Weir's argument on Juror 340 (there was no matter in controversy as to Juror 342 due to the District Court's excusal of her): "Weir fails to point to any clear and convincing evidence of Juror # 340's bias." Weir, 587 F. App'x at 305. Further, "the relationship at issue in this case (where the juror's sister's husband's brother had been married to the victim's daughter) is not sufficiently close to warrant" a finding of implied bias. Id. at 306 (assuming doctrine persists).
Weir asserts that it is "probable"—but "imposs[i]ble to know"—if either juror "taint[ed] the properly admitted evidence[.]" DE #151, at 5-6. The Court interprets this to argue that the jurors may have tainted, through potential comments, the entire panel. See DE #151-1, at 5 ("It is imposs[i]ble to determine what the juror[s] deliberated on; if bias of familiar jurors[] spilled over contaminating verdict?"). This argument is quintessential speculation. Weir supports it with utterly no proof, and he even concedes (twice) that it is impossible to know whether it occurred. The claim obviously fails; Judge Reeves specifically instructed both jurors not to discuss the conversations with any other member of the jury. Id. at 52, 55. The District Judge later instructed the full panel "not to draw any inference" from the dismissal of Juror 342. Id. at 60. Courts assume that jurors follow instructions, and Weir has in no way called that precept into doubt. Shannon v. United States, 114 S.Ct. 2419, 2427 (1994). Both jurors brought the matters to the Court's attention on day one of the trial, after the testimony of victim Ernst—the first trial witness. Jury deliberations had not yet started—indeed, the trial had just begun. Weir has not proven a basis for habeas relief on this ground.
Additionally, the District Court specifically defined the proper evidence field in the case for the jury via instruction. DE #85 (Jury Instructions), at Instruction 4. Judge Reeves gave the precise instruction Weir seeks (Sixth Circuit Pattern Instruction 7.17, concerning transcriptions of tape recordings, see DE #151-1, at 4). DE #85, at Instruction 16. Judge Reeves gave the same admonitions concerning transcription when the transcripts were distributed at trial:
DE #130, at 14-15 (paragraph break omitted). The District Judge continued:
Id. at 15-16 (paragraph break omitted); see also Weir, 587 F. App'x at 308 (rejecting an argument as to a different jury instruction).
Again, the Court faces a clear and complete record in which Mr. Howe obviously was not ineffective. Because the Sixth Circuit rejected the juror argument on direct appeal, Weir is barred from relitigating the underlying claim on habeas. Myers, 198 F.3d at 619; Wright, 182 F.3d at 467; DuPont, 76 F.3d at 110. Because the juror and instructions arguments are meritless, and because Mr. Howe thoroughly raised and Judge Reeves properly addressed them during the case, Weir shows neither deficient performance nor prejudice. Mapes, 171 F.3d at 427.
Third, Weir says:
DE #151, at 7 (all as in original). Weir provided further detail in the accompanying memorandum. DE #151-1, at 5-6. The United States responded in opposition. DE #163, at 9-10.
This appears to be a multifaceted attack on the substantiality of case proof
First—"counsel failed to exam witness or relevant facts, and in totality failed to present a defense." The record belies this argument. The Court has reviewed every transcript from both trials and the pretrial proceedings. Mr. Howe cross examined every witness presented, thoroughly questioned them on the facts, and vigorously presented a defense at each trial. Mr. Howe called defensive witnesses, and Weir even testified in his own defense at the first trial. Howe zealously defended Weir throughout. This claim, for which Weir provides little detail, is clearly meritless.
Second—Weir's asserted gaps in the case proof. He specifically challenges (1) the alleged circumstantial nature of some proof; (2) Ernst's photo array identification; (3) the lack of fingerprints, DNA, or forensic evidence; (4) the lack of a recovered firearm; and
(5) Applegate's criminal and drug abuse histories, as they go to motive and credibility. No challenge has merit.
The Sixth Circuit has already rejected a sufficiency-of-the-evidence argument and affirmed both the kidnapping and bank robbery (along with the adjoining gun) convictions. Weir, 587 F. App'x at 306-08. The Court has independently reviewed every stitch of the record. Despite the degree to which any evidence may have been circumstantial—and much of it was not circumstantial in any way—the proof was sufficient to convict on all counts. The Sixth Circuit and District Court have already explicitly determined this, and Weir's carping over particular items will not change that.
On the issue of the photo identification, the topic arose at trial, DE #128, at 22-23, and Ernst identified Weir as her kidnapper in open court and explained her exact basis for the identification. Id. at 23. Weir does not show that a prior misidentification would have changed the outcome of the trial (and he, notably, presents no proof on the allegation anyway). Concerning the alleged lack of certain evidence—fingerprints, DNA, other forensic, and a recovered firearm—the Sixth Circuit has directly upheld the evidence as sufficient, and the absence of any particular piece or type of evidence identified obviously does not doom any conviction, given the substantial other evidence of Weir's guilt. See, e.g., United States v. Noland, Nos. 5:09-176-DCR, 5:14-7352-DCR, 2015 WL 3819958, at *5 (E.D. Ky. June 18, 2015) ("Likewise, [Defendant] has not shown that a defense based on the lack of fingerprint evidence would have sufficiently mitigated the substantial evidence against him to establish a reasonable probability of a different result."), adopting United States v. Noland, Nos. 5:09-CR-176-DCR-HAI, 5:14-CV-7352-DCR-HAI, 2015 WL 3819927, at *9 (E.D. Ky. Apr. 23, 2015) ("No reason, based in either law or fact, is offered as to why a lack of fingerprints would have somehow mitigated the substantial evidence against Defendant so as to establish a reasonable probability of a different result."). The Sixth Circuit explicitly upheld the gun convictions based on the evidence presented. Weir, 587 F. App'x at 307.
As to the proof sufficiency, the District Court summarized, at the first trial:
DE #130, at 32-33. Judge Reeves later added, as to the gun charge: "The evidence in the case that would support the 924 going to the jury, for example, could include not only the testimony of the victim in the case, Ms. Ernst, but also the admission made by Mr. Weir." Id. at 79.
At the second trial, the District Court explained:
DE #132, at 102-08 (denying a comprehensive Rule 29 motion) (certain paragraph breaks omitted). The Sixth Circuit endorsed evidence sufficiency as to all convictions. There is no basis for habeas relief founded on an alleged lack of certain evidence.
Finally, concerning Applegate's criminal and drug abuse histories, the jury fully had that information. Two Applegates testified at the second trial, but Weir specifically refers to "her motive and credibility," DE #151, at 7 (emphasis added), so the Court will confine its analysis to Cindy, not Donald. Cindy Applegate testified that she had two prior convictions, for "possession of cocaine" and "possession of a forged instrument." DE #131, at 98. She testified that she previously attended AA and NA meetings. Id. at 99. She said she is a "recovering addict" from a heroin addiction. Id. at 99-100. She testified that she and Weir went to a drug dealer named Hump's house to buy heroin and later got high on it. Id. at 114-15. Thus, the jury was fully aware of Applegate's criminal record and drug abuse history, including her criminal involvement with Weir. Petitioner certainly makes no showing that if counsel had mentioned an alleged recent Tazewell arrest (concerning which he presents utterly no proof), the result of the proceeding would have been different.
Third—Rule 33. That Rule permits a court to vacate a judgment and grant a new trial "if the interest of justice so requires." Fed. R. Crim. P. 33(a). Certain time limits apply. Id. 33(b). Weir identifies utterly no justification for a new trial. He cites no new qualifying evidence. See, e.g., United States v. Sypher, 684 F.3d 622, 626 (6th Cir. 2012). He establishes no other error justifying a new trial. See, e.g., United States v. Munoz, 605 F.3d 359, 373 (6th Cir. 2010) (stating a court should grant Rule 33 relief where "the jury's verdict was against the manifest weight of the evidence" or where "substantial legal error has occurred," such as an "error of sufficient magnitude to require reversal on appeal" (internal alteration omitted)); United States v. Hughes, 505 F.3d 578, 593 (6th Cir. 2007) (stating a court should grant Rule 33 relief "only in the extraordinary circumstance where the evidence preponderates heavily against the verdict" (internal quotation marks removed)). For the reasons discussed in this opinion, and the ones previously given by the District Court and Sixth Circuit, there is no such error here. Mr. Howe was therefore not ineffective for not filing a Rule 33 motion. Mapes, 171 F.3d at 427.
Fourth—cumulative error. Weir claims that "[c]um[]ulative error denied [him] a fair trial" and that "cum[]ulative error resulted in unfair trial and conviction." Because Weir has established no individual error, he has not "support[ed] a finding of cumulative error and which would rise to the level of fundamental unfairness." United States v. Trujillo, 376 F.3d 593, 614 (6th Cir. 2004). Regardless, "not even constitutional errors that would not individually support habeas relief can be cumulated to support habeas relief." Moore v. Parker, 425 F.3d 250, 256 (6th Cir. 2005). In short, Weir's cumulative error (along with the dependent Strickland and new trial theories) "argument fails because there is no cumulation of errors." United States v. Bankston, 820 F.3d 215, 234 (6th Cir. 2016).
Finally, Weir argues:
DE #151, at 8-9 (all as in original). Weir provided further detail in the accompanying memorandum. DE #151-1, at 6. Weir's third affidavit addresses these matters. DE #151-4. The United States responded in opposition. DE #163, at 10-11.
Review of the record refutes Weir's claim: (1) Mr. Howe set out substantially all these characteristics in the sentencing memorandum; (2) Mr. Howe argued for consideration of these characteristics at sentencing; and (3) the PSR contained a comprehensive assessment of these issues. These aspects of Weir's life were fully before the Court for sentencing consideration.
First—the sentencing memorandum. Mr. Howe called the Court's attention to Weir's "personal circumstances[.]" DE #121 (Sentencing Memorandum), at 4. Counsel wrote about Weir's "mentally and physically abusive childhood," "learning disabilities," and "psychological issues that have been addressed throughout this case[.]" Id. at 5. Mr. Howe advocated:
Id. at 5-6. Mr. Howe confirmed in the affidavit that he "prepared a Sentencing Memorandum" that made the Court aware of Weir's "background, his circumstances, his drug abuse history, as well as his mental health history." DE #163-1.
Second—the sentencing proceeding. At sentencing, Mr. Howe advocated for a low-end sentence for Weir. Mr. Howe specifically pointed out:
DE #143 (Sentencing Tr.), at 27-28 (paragraph breaks omitted). Mr. Howe orally incorporated his written arguments in the sentencing memorandum. Id. at 23. He called the Court's attention to Weir's "addictions and/or the mental health issues[.]" Id. at 24.
The Sixth Circuit noted that, at sentencing, "Weir asked the court to consider his mental health and substance abuse issues[.]" Weir, 587 F. App'x at 309. The District Court, based at least in part on Mr. Howe's advocacy, "considered all of the pertinent § 3553(a) facts, taking into account Weir's mental health and substance abuse issues[.]" Id. The Court of Appeals noted a third time that Judge Reeves considered "Weir's mental health issues and problems with drug abuse" as part of the sentence. Id. at 310.
Third—the PSR. This report thoroughly documents Weir's characteristics. DE #127, at 24-31. The PSR extensively catalogues Weir's medical and health history. Id. at 27-29. It describes, in detail, Weir's substance abuse history. Id. at 29-30. After discussing his educational achievements, id. at 30, the PSR details Weir's employment record, including periods of employment at a body shop, a Foot Locker store, Kirby Vacuum, and various other jobs. Id. at 30-31. The PSR discusses every one of the aspects (including the precise jobs) about which Weir complains in the habeas filing. Judge Reeves fully had the PSR in front of him and fully considered the content at sentencing.
The record, both at the trial and appellate levels, easily and completely discounts Weir's theory that Mr. Howe failed to raise certain characteristics at sentencing. Weir, thus, in the Strickland analysis, shows neither deficient performance nor prejudice. He is entitled to no relief.
Weir requests an evidentiary hearing. DE #151, at 13. The Court must hold one unless "the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b). No hearing is necessary "where the petitioner's allegations cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact." Huff v. United States, 734 F.3d 600, 607 (6th Cir. 2013) (quoting Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999)) (internal quotation marks removed). Weir's claims do not warrant a hearing; the § 2255 motion filings and case record conclusively show, for the reasons stated above, that Weir's claims fail. There are no contested factual issues that justify a hearing. The record, particularly one centering on hearings and a recorded statement, needs no further development and forecloses relief.
A Certificate of Appealability may issue where a movant has made a "substantial showing of the denial of a constitutional right." See 28 U.S.C. § 2253(c)(2). This standard requires a movant to demonstrate that "reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 120 S.Ct. 1595, 1604 (2000); see also Miller-El v. Cockrell, 123 S.Ct. 1029, 1039-40 (2003) (discussing development of standard). The reviewing court must indicate which specific issues satisfy the "substantial showing" requirement. See 28 U.S.C. § 2253(c)(3); Bradley v. Birkett, 156 F. App'x 771, 774 (6th Cir. 2005) (noting requirement of "individualized assessment of . . . claims") (citing Porterfield v. Bell, 258 F.3d 484, 487 (6th Cir. 2001)). For dismissal on procedural grounds, as to when a Certificate of Appealability should issue, the movant must show that "jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack, 120 S. Ct. at 1604. Movant has not made a "substantial showing" as to any claimed denial of rights; his Strickland and other claims all conclusively fail. Reasonable jurists would not find the Court's determination on the merits debatable. Accordingly, the Court recommends that the District Court entirely deny a Certificate of Appealability.
For the reasons discussed above, the Court
The Court directs the parties to 28 U.S.C. § 636(b)(1) for appeal rights and mechanics concerning this Recommended Disposition, issued under subsection (B) of the statute. See also Rule 8(b), Rules Governing Section 2255 Proceedings for the United States District Courts. Within fourteen days after being served with a copy of this decision, any party may serve and file specific written objections to any or all findings or recommendations for determination, de novo, by the District Court. Failure to make a timely objection consistent with the statute and rule may, and usually does, result in waiver of further appeal to or review by the District Court and Court of Appeals. See Thomas v. Arn, 106 S.Ct. 466, 475 (1985); United States v. Walters, 638 F.2d 947, 950 (6th Cir. 1981).
Weir does not state any particular reason he seeks counsel at this stage. The claims, as discussed above, are not unusually complex and are unfounded in law and fact. Pursuant to the Court's recommendation that Weir's § 2255 motion be denied altogether, the Court also declines to appoint counsel. The case, which is facially developed and analytically clear, does not merit such an appointment. Weir adequately presented his arguments pro se.
