LEON JORDAN, District Judge.
Before the Court is Petitioner's pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 [Doc. 108].
In August of 2014, Petitioner was obtaining methamphetamine in multiple-once quantities from a supplier in Georgia and giving that methamphetamine to co-defendants to distribute for him in the Morristown area of the Eastern District of Tennessee [Doc. 58 ¶ 5(b)]. On September 2, 2014, Petitioner was in possession of three ounces of methamphetamine and gave one of those ounces to a co-defendant to distribute in Morristown, Tennessee [Id. ¶ 5(c)]. That evening law enforcement pulled Petitioner and an unindicted co-conspirator over for a traffic stop and a search of the vehicle resulted in the seizure of approximately 45 grams of actual methamphetamine [Id. ¶ 5(d)]. After Petitioner's arrest, he made several recorded drug-related phone calls from the jail to arrange for co-defendants to travel to Georgia to meet with his supplier and bring back enough money to pay his bond [Id. ¶ 5(d)]. The co-defendants traveled to Georgia, met the source, and obtained methamphetamine to sell to raise money for Petitioner's bond [Id. ¶ 5(g)]. Law enforcement officers pulled those co-defendants over for a traffic stop on their way back to Tennessee and seized 51.60 grams of methamphetamine (37.31 actual grams) [Id.].
A federal grand jury charged Petitioner with conspiring to distribute more than 50 grams of methamphetamine, in violation of 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(A) [Doc. 3].
Petitioner "knowingly and voluntarily waive[d] the right to file any motions or pleadings pursuant to 28 U.S.C. § 2255," except for claims of ineffective assistance of counsel or prosecutorial misconduct [Id. ¶ 11(b)]. He also waived his right to direct appeal as follows:
[Id. ¶ 11(a)].
During the plea colloquy on October 22, 2015, the Court verified that Petitioner was not suffering from mental illness or drug addiction, and that he understood the purpose of the hearing [Doc. 116 pp. 3-4]. The Court confirmed that Petitioner had ample time to discuss his case and the charges against him with counsel [Id. at 4]. Petitioner also affirmed that counsel advised him of the nature and meaning of the charges and every element of those offenses, and that counsel advised him as to any defense that he might have to the charges [Id. at 4-5]. When asked if his lawer explained the terms of the plea agreement to him, Petitioner replied: "Yes, Sir" [Id. at 5].
After the Court advised Petitioner of the legal rights that he was giving up by pleading guilty and denying that anyone had threatened him or forced him in any way to plead guilty, the prosecutor summarized the plea agreement and the elements of the offense [Id. at 5-8]. Because the stipulation of facts was lengthy and fully signed and executed, the parties agreed that only a summary of those facts would be read aloud [Id. at 8-11]. Among other things, the prosecutor specifically mentioned the following: when Petitioner was arrested after a traffic stop on September 2, 2014, he was in possession of 45 grams of methamphetamine; that Petitioner directed other co-defendants to travel to Georgia to obtain additional methamphetamine from Petitioner's supplier; and that the co-defendants were thereafter found with multiple baggies of methamphetamine weighing 51.06 grams which contained 37.31 grams of actual methamphetamine, a small amount of marijuana, and an additional amount of methamphetamine hidden in the purse of one of the co-defendants [Id. at 10-11]. Petitioner stipulated that he had conspired to distribute and was accountable "for at least 35 grams but not more than 50 grams of methamphetamine, actual methamphetamine" [Id. at 11]. The Court asked Petitioner if he agreed with the United States' summary of what he did and Petitioner responded: "Yes, Sir" [Id.]. He stated that he was pleading guilty based on those facts and because he was, in fact, guilty [Id.].
The Court reminded Petitioner that the statutorily authorized penalty for his offense was a term of no less than five years up to 40 years' imprisonment, but that, pursuant to his Rule 11(c)(1)(C) plea agreement, he would receive a term of 200 months' imprisonment followed by 8 years of supervised release [Id. at 12]. Petitioner swore that, knowing the penalties for his offense, he still wished to plead guilty [Id. at 12-15]. The Court concluded that Petitioner's plea was knowing and voluntary, accepted the plea, and adjudged him guilty [Id. at 15-16].
In calculating the applicable Guidelines range, the United States Probation Office assigned Petitioner an initial base offense level of twenty-eight based on the quantity of drugs stipulated in the plea agreement [Doc. 81 ¶ 19]. Based on three prior Georgia convictions—robbery, possession of pseudoephedrine and tools to manufacture methamphetamine, and aggravated assault, the United States Probation Office deemed Petitioner to be a career offender under Section 4B1.1 of the United States Sentencing Guidelines with an enhanced base offense level of thirty-four [Id. ¶¶ 25, 32, 36, 37]. Petitioner, through counsel, objected to the use of his Georgia robbery conviction as a career-offender predicate [Id. ¶ 32; Doc. 97]. The United States Probation Office responded that Petitioner remained a career offender without that conviction because of his prior drug and aggravated assault convictions [Id.]. A three-level reduction for acceptance of responsibility resulted in a total offense level of thirty-one [Doc. 81 ¶¶ 26-28]. Combined with a criminal history category of VI, the total offense level yielded a range of 188 to 235 months [Id. ¶¶ 38-41, 64].
At sentencing on January 26, 2016, counsel for Petitioner advised the Court that the 200-month sentence negotiated in the Rule 11(c)(1)(C) plea agreement stemmed from the belief that Petitioner was a career offender "based upon those two predicate convictions that seemed to lack meritorious challenge" [Doc. 115 p. 4]. The Court accepted the plea agreement and sentenced Petitioner to 200 months' imprisonment, to run consecutive to his then-pending parole violation cases in Ben Hill County, Georgia Superior Court, and in Bibb County, Georgia Superior Court [Id. at 6; Doc. 99]. Petitioner did not appeal and, as a result, his conviction became final for purposes of § 2255(f)(1) on February 9, 2016. See Sanchez-Castellano v. United States, 358 F.3d 424, 428 (6th Cir. 2004) (an unappealed judgment of conviction becomes final when the time for filing a direct appeal has elapsed); Fed. R. App. P. 4(b)(1)(A)(i) ("In a criminal case, a defendant's notice of appeal must be filed in the district court within [fourteen] days.").
The Supreme Court decided Johnson v. United States—invalidating the residual clause of the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e)—on June 26, 2015. 135 S.Ct. 2551 (2015). Petitioner filed the instant pro se petition on June 20, 2016 [Doc. 108].
The relief authorized by 28 U.S.C. § 2255 "does not encompass all claimed errors in conviction and sentencing." United States v. Addonizio, 442 U.S. 178, 185 (1979). Rather, 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)). He "must clear a significantly higher hurdle than would exist on direct appeal" and establish a "fundamental defect in the proceedings which necessarily results in a complete miscarriage of justice or an egregious error violative of due process." Fair v. United States, 157 F.3d 427, 430 (6th Cir. 1998).
Petitioner articulates four grounds for collateral relief: three theories of ineffective assistance of counsel; and a request for vacatur of his sentence based on the Johnson decision.
A petitioner alleging ineffective assistance must satisfy the two-part test set forth in Strickland v. Washington, 466 U.S. 668, 687 (1987). First, the petitioner must establish, by identifying specific acts or omissions, that counsel's performance was deficient and that counsel did not provide "reasonably effective assistance," id., as measured by "prevailing professional norms," Rompilla v. Beard, 545 U.S. 374, 380 (2005). Counsel's assistance is presumed to have been effective, and the petitioner bears the burden of showing otherwise. Mason v. Mitchell, 320 F.3d 604, 616-17 (6th Cir. 2003); see also Strickland, 466 U.S. at 689 (a reviewing court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that . . . the challenged action might be considered sound . . . strategy" (internal citation omitted)).
Second, the 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. "An 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." Id. at 691; see also Smith v. Robbins, 528 U.S. 259, 285-86 (2000). If a petitioner fails to prove that he sustained prejudice, the Court need not decide whether counsel's performance was deficient. See United States v. Hynes, 467 F.3d 951, 970 (6th Cir. 2006) (holding that alleged "flaws" in trial counsel's representation did not warrant a new trial where the claims, even if true, did not demonstrate that the jury would have reached a different conclusion).
The petition contains three theories of ineffective assistance. In the first, Petitioner argues that trial counsel's should have challenged Petitioner's conviction for the lesser-included offense of conspiring to distribute at least 5 grams of actual methamphetamine as an impermissible deviation from the charge contained in Petitioner's indictment—conspiracy to distribute 50 or more grams of actual methamphetamine [Doc. 108 pp. 4-6]. In the second, Petitioner suggests that counsel should have challenged the use of his prior Georgia drug conviction as a career offender predicate based on Descamps v. United States, 133 S.Ct. 2276 (2014) [Id. at 4, 7]. In the third, Petitioner argues that counsel should have filed a direct appeal [Id. at 8].
In his first theory of ineffective assistance, Petitioner argues that counsel should have challenged the validity of the conviction for conspiracy to distribute at least five grams of actual methamphetamine when the indictment charged Petitioner with conspiracy to distribute 50 or more grams of methamphetamine without any mention of the term "actual" [Id. at 4-6 (characterizing his conviction as "outside the scope of the grand jury's specific element that was charged")].
The Sixth Circuit recognizes three types of modifications to an indictment that can raise constitutional problems: actual amendment; constructive amendment; and variance. United States v. Budd, 496 F.3d 517, 521 (6th Cir. 2007). Actual amendment occurs when the prosecutor changes the actual text of the indicting instrument. Id. As for the other forms of deviation:
United States v. Mize, 814 F.3d 401, 409 (6th Cir. 2016). None are present in the instant case.
As an initial matter, conviction on lesser-included offense does not constitute an amendment—actual, constructive, or otherwise—to or a variance from an indictment for the greater offense. Nor does basing Petitioner's base offense level under Section 2D1.1 on the quantity of actual methamphetamine possessed constitute a violation of his Fifth Amendment right to a grand jury. Further, the facts to which Petitioner stipulated in his plea agreement provide ample basis for his conviction to the lesser-included offense. Count One of the indictment charged that between September 2013 and October 2014 Petitioner conspired to distribute 50 grams or more of methamphetamine in violation of 21 U.S.C. § 846 and 841(b)(1)(A) [Doc. 3]. Petitioner admitted in the plea agreement that by August 2014, he was supplying at least half-ounce quantities of methamphetamine to a co-defendant approximately twice a week and he customarily obtained several ounces of methamphetamine at a time from his source of supply in Georgia [Doc. 58 ¶ 5(b)]. Petitioner admitted that law enforcement arrested him on September 2, 2014, in possession of approximately 45 grams of actual methamphetamine [Id. ¶ 5(c)].
Because Petitioner has failed to demonstrate that he incurred prejudice because of the decision not to challenge his conviction and sentence as a violation of the Fifth Amendment grand jury guarantee, the Court need not address whether that same omission amounted to a deviation from professional norms. See, e.g., Hoffner v. Bradshaw, 622 F.3d 487, 499 (6th Cir. 2010) (explaining that counsel cannot be held constitutionally ineffective for failing to pursue a meritless claim or raise a meritless objection).
In his second theory of ineffective assistance, Petitioner argues that counsel should have challenged the designation of his prior Georgia conviction for possession of pseudoephedrine with intent to manufacture methamphetamine as a "controlled substance offense" under Section 4B1.1(a)(3) [Doc. 108 pp. 4, 7]. Specifically, Petitioner suggests that "because [his] conviction could have been punished as a misdemeanor `rather than a felony' under federal law, it was not categorically an aggravated felony" for purposes of career offender enhancement [Id. at 7].
For purposes of career offender enhancement, "controlled substance offense" is defined as any offense "punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance . . . or the possession of controlled substance . . . with intent to manufacture, import, export, distribute, or dispense." U.S. Sentencing Manual § 4B1.2(b). Despite Petitioner's suggestion to the contrary, it is irrelevant for purposes of the career offender analysis whether another jurisdiction would have treated the same conduct as a "misdemeanor" or a "felony." The Descamps decision is inapposite.
For purpose of the instant case, Petitioner's prior Georgia conviction for possession of pseudoephedrine with intent to manufacture methamphetamine involved the violation of a criminal provision that prohibited the manufacture of a controlled substance and carried a maximum penalty in excess of one years' incarceration. It is irrelevant how similar conduct would have been categorized under 21 U.S.C. 802(44) and whether the resulting offense of conviction would have been characterized as a misdemeanor or a felony drug crime.
In his third and final theory of ineffective assistance, Petitioner claims that trial counsel erred when he failed to file a direct appeal [Doc. 108 p. 8]. Specifically, Petitioner claims that counsel improperly advised him that there were no meritorious grounds for appeal and that, without that advice, Petitioner would have filed a timely direct appeal [Id.]. The claim lacks merit.
In Roe v. Flores-Ortega, the Supreme Court set forth two situation-specific tests for determining whether failure to file a notice of appeal on behalf of a client rises to the level of constitutionally deficient performance. 528 U.S. 470, 478-81 (2000). In the first scenario—where the defendant specifically instructs counsel to file a notice of appeal—the attorney acts in a professionally unreasonable manner by disregarding that instruction. See id. at 478 ("We have long held that a lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable." (citing Rodriquez v. United States, 395 U.S. 327 (1969)). In the second scenario—where the defendant "neither instructs counsel to file an appeal nor asks that an appeal not be taken"—the question "whether counsel has performed deficiently by not filing a notice of appeal is best answered by first asking a separate, but antecedent, question: whether counsel in fact consulted with the defendant about an appeal." Id. at 479 (defining "consult" as "advising the defendant about the advantages and disadvantages of taking an appeal, and making a reasonable effort to discover the defendant's wishes"). In the latter situation—where the defendant did not previously request that the appeal be filed—consulting him about the futility of a potential appeal obviates counsel's obligation to file a notice unless expressly instructed to file the appeal anyway. See id. ("Counsel performs in a professionally unreasonable manner only by failing to follow the defendant's express instructions with respect to an appeal.").
Petitioner does not claim that he asked trial counsel to file a direct appeal or that trial counsel ignored an express request for the same. As such, the instant case is one in which counsel's only obligation was to advise his client about the merits or futility of a potential appeal. Because it appears that trial counsel did all that the law required under the circumstances, the third theory of ineffective assistance fails as a matter of law. See, e.g., Ludwig v. United States, 162 F.3d 456, 459 (6th Cir. 1998) (explaining that the Sixth Amendment right to counsel is "only implicated when a defendant actually requests an appeal, and his counsel disregards the request").
In addition to the foregoing grounds of ineffective assistance of counsel, Petitioner argues that the Johnson decision removed Georgia robbery and Georgia aggravated assault from Section 4B1.2's definition of "crime of violence" and that, without that conviction, Petitioner lacks sufficient predicate offenses for enhancement [Doc. 108 pp. 4, 6].
It is well established that an informed and voluntary waiver of the right to collaterally attack a conviction and sentence is enforceable. Watson v. United States, 165 F.3d 486, 489 (6th Cir. 1999); United States v. McGlivery, 403 F.3d 361, 363 (6th Cir. 2005). The Sixth Circuit recently held that the same is true even where that waiver prevents a petitioner from challenging his base offense level or career offender enhancement based on the Johnson decision. See In re Garner, No. 16-1655, 2016 WL 6471761, at *1-2 (6th Cir. Nov. 2, 2016) (denying leave to file a successive petition challenging career offender enhancement based on the Johnson decision where defendant voluntarily waived his right to raise collateral challenges).
"The Federal Rules of Criminal Procedure give the parties ample room to tailor plea agreements to different needs—whether they are the right to appeal, the right to benefit from future changes in the law or other concerns that the defendant . . . may have." United States v. Bradley, 400 F.3d 459, 466 (6th Cir. 2005). For purposes of the instant case, Petitioner "knowingly and voluntarily" waived his right to collaterally challenge his sentence with the exception of cases which involve claims of ineffective assistance or prosecutorial misconduct [Doc. 58 ¶ 11(b)]. The fact that "developments in the law [have] expand[ed] [Petitioner's forfeited] right [of collateral review] . . . does not suddenly make [his] plea involuntary or unknowing or otherwise undo its binding nature." United States v. McGlivery, 403 F.3d 361, 363 (6th Cir. 2005). In light of the binding nature of Petitioner's wavier, the instant § 2255 motion will be dismissed. Accord United States v. Avery, No. 3:16-cv-2, 2016 WL 7467967, at *4-6 (S.D. Ohio Dec. 28, 2016) (denying Johnson-based challenge based on pre-Johnson waiver); United States v. Strauss, No. 16-cv-11397, 2016 WL 68733398, at *2-3 (E.D. Mich. Nov. 2, 2016) (same); United States v. Muller, No. 16-cv-20009, 2016 WL 6892268, at *2-3 (E.D. Mich. Nov. 2, 2016) (same).
Even if the waiver contained in the plea agreement did not bar Petitioner's challenge, it would fail as a matter of law. On March 6, 2016, the Supreme Court held that the United States Sentencing Guidelines are "not amendable to vagueness challenges." Beckles v. United States, No. 15-8544, 2017 WL 855781, at *7 (U.S. March 6, 2017). As a result, the Johnson decision does not provide a basis for vacating, setting aside, or correcting Petitioner's sentence.
For the reasons discussed above, Petitioner's § 2255 motion [Doc. 108] will be
