JOSEPH M. HOOD, Senior District Judge.
Movant, Robert Franklin Fox, is a federal inmate. DE #82 (Motion), at 1. On March 30, 2018,
On May 1, 2014, a federal grand jury charged Fox with knowingly and intentionally possessing with intent to distribute Oxycodone, in violation of 21 U.S.C. § 841(a)(1). DE #1 (Indictment). Fox pleaded guilty, without a plea agreement, to the lone Count on January 26, 2015. DE #31 (Rearraignment Minute Entry). The Court sentenced Fox on May 26, 2015. DE #44 (Sentencing Minute Entry). Movant received a total prison sentence of 150 months followed by 6 years of supervised release. DE #46 (Judgment). Fox appealed; the Sixth Circuit remanded based on a perceived lack of clarity in the undersigned's Guidelines math or sentencing explanation. See DE #64. The Court resentenced Movant on August 1, 2016. DE #70 (Minute Entry). In the hearing, the Court further explained the Guidelines treatment and imposed an identical sentence. See DE ##71 (Amended Judgment); 72 (Order). Fox again appealed; this time, the Sixth Circuit affirmed. United States v. Fox, 712 F. App'x 486 (6th Cir. 2017). On March 30, 2018, Fox timely submitted a § 2255 motion to vacate. DE #82. The motion is fully briefed and stands ripe for review. The Court rejects all of Fox's claims. No basis exists for a Certificate of Appealability.
Under 28 U.S.C. § 2255, a federal prisoner may obtain post-conviction relief if his 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, 507 U.S. 619, 637-38 (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, 368 U.S. 424, 428 (1968)); see also Watson, 165 F.3d at 488. A § 2255 movant generally must prove 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 the § 2255 motion, Fox asserts various arguments concerning ineffective assistance of trial counsel (IAC), ineffective assistance of appellate counsel (IAAC), entitlement to an evidentiary hearing, and a recent Fifth Circuit case. The Court evaluates each in turn.
When asserting an ineffective assistance claim, a movant must prove both deficient performance and prejudice. Strickland v. Washington, 466 U.S. 668, 687 (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).
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 687. 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 694. When evaluating prejudice, courts generally must consider the "totality of the evidence before the judge or jury." Id. at 695. "In the context of pleas a defendant must show the outcome of the plea process would have been different with competent advice." Lafler v. Cooper, 566 U.S. 156, 163 (2012).
First—Fox claims that his counsel at resentencing, Hon. Benjamin Allen, ineffectively failed to argue concerning U.S.S.G. Amendment 798. DE ##82, at 4; 82-1, at 5-10. The United States responded. DE #88, at 3-5. Fox replied. DE #95, at 1-5, 9-14. The amendment, as relevant here, eliminated burglary as an enumerated offense in U.S.S.G. § 4B1.2(a). The change, indeed, went unmentioned at the August 2016 resentencing.
This argument ultimately falters, at least,
Second—Fox argues that Mr. Allen ineffectively failed "to object to the amount of drugs used to calculate Petitioner's base offense level." DE ##82, at 4 (unnecessary capitalization removed); 82-1, at 13-15. Movant's specific argument is that "the district court should not[] have counted the `five [unopened] bottles' [of liquid Oxycodone] toward[] the total amount of marijuana for which he was sentenced." DE #82-1, at 13. Fox argues, seeming to parrot footnote 1 of the Presentence Investigation Report (PSR), see DE #49, at 4 n.1, that "none of these bottles were analyzed." DE #82-1, at 13. The United States responded. DE #88, at 5-6. Fox replied. DE #95, at 7-8.
As an initial matter, the career offender designation (not the drug quantity) ultimately defined the applicable offense level, meaning that this argument by Fox (relative to the offense level of 26 the PSR assigned based on marijuana equivalency) is really a nullity. Compare DE #49, at ¶ 14, with id. at ¶ 13. Thus, even if the Court agreed with Movant on this point, the operative offense level still would be 31, leading to no prejudice and thus no § 2255 relief. Nevertheless, due to the ease with which the argument substantively fails, the Court also processes the theory on Fox's terms.
The PSR stated that law enforcement seized 6 bottles labeled as containing "oxycodone liquid"—1 opened, 5 unopened—as part of this investigation. See DE #49, at 4 n.1.
In such a scenario, when "the exact amount of drugs is undetermined, an estimate will suffice, but a preponderance of the evidence must support the estimate." United States v. Jeross, 521 F.3d 562, 570 (6th Cir. 2008) (internal quotation marks and alteration removed). "The district court's estimate may be based upon physical evidence (such as seized drugs)" and will withstand review "if it is supported by competent evidence in the record." Id.
The Court's treatment here easily passes muster. Even if the exact drug amount in the 5 unopened bottles went undetermined, the Court properly estimated the amount in this context. The contents and quantity of the 1 opened bottle (i.e., other seized drugs, which Jeross explicitly approved as an estimate source) sufficed under a preponderance standard. It was competent record evidence— indeed, the only related evidence. The estimation's "methodology" is not, as Fox speciously argues, "totally opaque," DE #82-1, at 13; rather, the methodology could not have been simpler or more direct.
Fox also makes a couple of IAAC claims. "Appellate counsel does not have an obligation to raise every possible claim that a client may have, and counsel's performance is presumed to be effective. Only when ignored issues are clearly stronger than those presented, will the presumption of effective assistance of appellate counsel be overcome. To succeed on a claim that appellate counsel performed ineffectively, a petitioner also must demonstrate a reasonable probability that, but for his counsel's unreasonable failure to raise an issue on appeal, he would have prevailed." Dufresne v. Palmer, 876 F.3d 248, 257 (6th Cir. 2017) (internal citations, quotation marks, and alterations removed). The familiar Strickland standard thus continues to apply. Kelly v. Lazaroff, 846 F.3d 819, 832 (6th Cir. 2017); see also Huff v. United States, 734 F.3d 600, 606 (6th Cir. 2013) ("The familiar two-prong test set forth in Strickland . . . applies to claims of ineffective assistance of appellate counsel raised in a motion under section 2255.").
First—Fox contends that his appellate counsel ineffectively failed "to argue that the District Court erred in denying [a] motion [for a] continuance of [the] [re]sentencing hearing." DE ##82, at 5 (unnecessary capitalization removed); 82-1, at 16-18. The purpose of a continuance, per Fox, would have been for Allen "to bring" Amendment 798 "to the judge's attention." DE #82-1, at 17. The United States responded. DE #88, at 5. Fox replied. DE #95, at 8-9.
A denial of a continuance "amounts to a constitutional violation only if there is an unreasoning and arbitrary insistence upon expeditiousness in the face of a justifiable request for delay. To demonstrate reversible error, the defendant must show that the denial resulted in actual prejudice to his defense." United States v. Warshak, 631 F.3d 266, 298 (6th Cir. 2010) (internal quotation marks removed). The Court did, indeed, deny a motion to continue the resentencing hearing. See DE #68 (Order).
Fox makes, at a minimum, no sufficient showing of actual prejudice. As discussed, and as the Sixth Circuit has already determined, Movant's underlying Amendment 798 argument is meritless. Accordingly, an Amendment-798-predicated continuance-denial argument, had appellate counsel raised it, would have failed.
Second—Fox tosses in a claim that appellate counsel was ineffective concerning the same Amendment 798 issue addressed above. DE #82-1, at 10-12; see also DE #95, at 6-7. The Court rejects this IAAC claim for all the reasons previously stated for rejecting the identical IAC argument. Further, appellate counsel did, in fact, raise the Amendment 798 issue. See Appellant Brief, at 16, 20-21, United States v. Fox, No. 16-6238, ECF No. 24 (arguing that the district court improperly "failed to use the applicable Sentencing Guidelines that were in effect the day of [Fox's] sentencing on August 1, 2016" and that the Amendment "removed Fox's Burglary of a Habitation conviction as a viable § 4B1.1 predicate offense"). The Sixth Circuit disagreed, Fox, 712 F. App'x at 488-90 (acknowledging, but rebuffing, Movant's "reli[ance] on . . . Amendment 798"), but that does not render counsel ineffective.
Next, Fox makes certain suggestions concerning United States v. Herrold, 883 F.3d 517 (5th Cir. 2018) (en banc) (holding that "the burglary provisions encoded in Texas Penal Code §§ 30.02(a)(1) and (3) are indivisible" and that "§ 30.02(a)(3) is nongeneric"). See DE #82-1, at 19-20. Movant includes the Herrold-based arguments under a heading called "
Fox's Herrold-based argument fails for, at the very least,
The Court holds that Fox procedurally defaulted this direct challenge to his career offender qualification status. He did not address either Regalado prong, and the Court sees no basis to conclude either is satisfied in these circumstances. While Fox could not have, based on the timing, raised this specific Herrold-based argument on appeal, all Herrold purported to do was apply Mathis v. United States, 136 S.Ct. 2243 (2016). See 883 F.3d at 520-21. Mathis, decided on June 23, 2016, existed at the time of Fox's resentencing and subsequent appeal. Movant could have raise Mathis-based arguments to any prior conviction's qualification status at resentencing or on appeal, but he chose not to. This litigation decision foreclosed reasoned analysis, in Fox's case, of whether the Texas burglary of a habitation prior actually qualified as a career offender enhancement predicate.
Fox, thus, defaulted this argument, which (at root and in reality) is one raised under Mathis. A new court of appeals opinion (from a foreign Circuit, at that), purporting to do nothing more than merely apply the dictates of a Supreme Court case decided prior to a defendant's sentencing and appeal, should not vampirize an ability to raise a topic that the procedural default doctrine would otherwise plainly bar. A contrary holding would result in Fox effectively (and impermissibly) "circumvent[ing] the direct appeal process." Regalado, 334 F.3d at 528. Again, it is worth reiterating the Sixth Circuit has already held that the undersigned did not err in "continuing to classify Fox as a career offender" in August 2016, post-Mathis. See Fox, 712 F. App'x at 490. Further, Herrold, from a foreign court of appeals, foundationally does not bind this District or the Sixth Circuit. See also 883 F.3d at 535-36 (contrasting the Fifth Circuit's approach with that of the Fourth and Sixth Circuits); id. at 545-46 (Haynes, J., dissenting) (same).
Second, and more fundamentally, the Sixth Circuit has squarely held that direct challenges such as Fox's career-offender-qualification (i.e., Guidelines-application) argument are generally not § 2255 fodder. Grant v. United States, 72 F.3d 503, 506 (6th Cir. 1996). "[N]onconstitutional claims not raised at trial or on direct appeal are waived for collateral review except where the errors amount to something akin to a denial of due process." Id. The Court of Appeals's discussion is worth excerpting:
Id. (internal citations omitted); see also, e.g., Weinberger, 268 F.3d at 351 (summarizing: "Sentencing challenges generally cannot be made for the first time in a post-conviction § 2255 motion."); Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996); Burke v. United States, 152 F.3d 1329, 1331-32 (11th Cir. 1998).
Fox's direct challenge to application of the career offender enhancement under advisory Guidelines does not rise to the level of a "most serious defect[] in the trial process," a "fundamental unfairness," a "breakdown of the trial process," or an error "so positively outrageous" to indicate "a complete miscarriage of justice." Quite to the contrary, Movant's argument is instead a "garden-variety" complaint about the "guideline calculation" in his case.
Therefore, Grant, as well as subsequent and related case law, independently bars the direct career-offender-qualification complaint. See also Sun Bear v. United States, 644 F.3d 700, 704-06 (8th Cir. 2011) (en banc) (holding that an attack on career-offender designation is not cognizable under § 2255); Spencer v. United States, 773 F.3d 1132, 1135 (11th Cir. 2014) (en banc) (same); Hawkins v. United States, 706 F.3d 820, 824-25 (7th Cir. 2013) (same, at least under advisory Guidelines);
The particulars of Fox's sentencing(s) further demonstrate acutely why no harm remediable by § 2255 occurred. As the Court recounted earlier, the undersigned varied significantly below the career offender Guidelines range when sentencing Movant. See, e.g., Foote, 784 F.3d at 941-42 (considering a district court's ability "to vary from the career-offender-based sentencing range" as a reason to find no miscarriage of justice). Additionally, contrary to certain suggestions by Fox, see, e.g., DE #95, at 10-11 (referencing the allegedly "unlawful" and "illegal sentence"), the 150 months (12.5 years) Movant received was a lawful sentence, falling well under the 30-year statutory maximum. See, e.g., Sun Bear, 644 F.3d at 705-06; Spencer, 773 F.3d at 1139-40, 1145; Zeman v. United States, 100 F.3d 958, No. 95-6368, 1996 WL 652621, at *2 (6th Cir. Nov. 7, 1996) (table) (finding no "complete miscarriage of justice" when movant received a sentence "less than the statutory maximum" (emphasis removed)).
For these reasons, the Court rejects § 2255 relief on this argument.
Finally, Fox seeks an evidentiary hearing. DE #82-1, at 21. As he largely recognizes,
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, 529 U.S. 473, 484 (2000); see also Miller-El v. Cockrell, 537 U.S. 322, 336-38 (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, 529 U.S. at 484.
Movant has not made a "substantial showing" as to any claimed denial of rights; all his claims, for the reasons explained, conclusively fail. Reasonable jurists would not find the Court's determinations debatable. Accordingly, the Court entirely denies a Certificate of Appealability.
For the reasons discussed, the Court wholly
There is limited case law indicating that appellate decisions issued within a year of conviction finality concerning statutory interpretation can be applied retroactively on collateral review of a first § 2255 motion addressing a substantive Guidelines issue. See, e.g., Oliver v. United States, 90 F.3d 177, 178-79 & 179 n.2 (6th Cir. 1996) (stating that a prior Sixth Circuit case concerning "the equivalency provision of the sentencing guidelines . . . could be retroactively applied to petitioner's sentence" on § 2255 review: "Teague does not bar the retroactive application of caselaw interpreting the federal sentencing guidelines"); Reina-Rodriguez v. United States, 655 F.3d 1182, 1187-90, 1193 (9th Cir. 2011) (applying an en banc Ninth Circuit "non-constitutional decision of substantive law" concerning the ACCA "retroactively" on collateral review of a Guidelines issue, but not grappling with the overall constitutional-claim gloss that Grant and other cases recognize); United States v. Geozos, 870 F.3d 890, 898 (9th Cir. 2017). The United States, which only cursorily responded regarding Herrold, does not contest the case's theoretical retroactive application, see DE #88, at 6, and the Court proceeds assuming that Herrold, which, like Reina-Rodriguez, also (re)interpreted the ACCA, can, in these particular circumstances, validly apply retroactively. This is merely to say that the Court considered dismissal independently on the discrete basis of potential Herrold non-retroactivity, a distinct topic the Government declined to press, but does not ultimately so hold.
706 F.3d at 823-24 (internal citations, quotation marks, and alterations removed). Fifth Circuit precedent at the time of both Fox's sentencings indicated that his Texas prior did qualify as a career offender predicate. See, e.g., United States v. Carrillo, 421 F. App'x 395, 396 (5th Cir. 2011) ("A Texas conviction for burglary of a habitation . . . constitutes a crime of violence for § 4B1.2 purposes.") (citing cases); United States v. Uribe, 838 F.3d 667, 670-71 (5th Cir. 2016) (reaffirming position post-Mathis); United States v. Madrid-Martinez, 695 F. App'x 743, 745-46 (5th Cir. 2017) (citing cases, post-Mathis). Herrold, an 8-7 en banc decision, worked significant change in Fifth Circuit law in this area.
