BERNARD A. FRIEDMAN, Senior District Judge.
This matter is before the Court on defendant's motion to vacate [docket entry 170], motion to amend that motion to vacate [docket entry 177], "motion for reply" [docket entry 186], and motion to supplement his "motion for reply" [docket entry 188]. Plaintiff has responded to the motions to vacate and to amend. Pursuant to E.D. Mich. LR 7.1(f)(2), the Court shall decide these motions without a hearing.
The Sixth Circuit's opinion affirming defendant's conviction summarized the relevant facts as follows:
United States v. Wilson, 653 F. App'x 433, 435-37 (6th Cir. 2016).
In June 2014, a jury found defendant guilty of the following five crimes: Count 3, conspiracy to murder a federal employee, 18 U.S.C. §§ 1114, 1117; Count 4, conspiracy to possess with intent to distribute a controlled substance, 21 U.S.C. § 841(a)(1), (b)(1)(A); Count 5, possession of a firearm in furtherance of a drug trafficking crime, 18 U.S.C. § 924(c)(1)(A); Count 6, felon in possession of a firearm 18 U.S.C. § 922(g); and Count 7, possession with intent to distribute a controlled substance, 21 U.S.C. § 841(a)(1), (b)(1)(C). The Court sentenced defendant in November 2014 to the following terms of imprisonment: Count 3, 420 months; Count 4, life; Count 5, 60 months; Count 6, 420 months; and Count 7, 360 months.
In December 2017, defendant filed the instant motion to vacate under 28 U.S.C. § 2255, and in January 2018, he filed a motion to amend the motion to vacate, seeking to add five more claims. The Court ordered the government to respond, which it did in March 2018. In April 2018, defendant filed a "motion for reply"—which includes defendant's proposed reply—and in May 2018 he filed a motion to supplement that reply. To decide the motion to vacate, the Court will consider all of defendant's filings, including the proposed amendments to the instant motion, the reply, and the proposed supplement to the reply.
Here, all of defendant's claims raise only constitutional issues, most of which are ineffectiveassistance-of-counsel claims. The Supreme Court has stated that the Court need correct a constitutional error only if it "had substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (quotation marks and citation omitted). For habeas petitioners to obtain relief on their constitutional claims, they must show "actual prejudice." Id. Critically, a habeas petitioner cannot "show that appellate counsel was ineffective for failing to raise a claim on appeal if the underlying claim itself lacks merit." Green v. MacLaren, No. 17-1249, 2017 WL 3973956, at *2 (6th Cir. Aug. 2, 2017).
Plaintiff asserts the following 15 claims for relief:
Claim I. Defendant argues that counsel was ineffective for failing to object to Count 3 of the indictment, which he claims is defective for several reasons. But Count 3 is not defective: it clearly charges defendant with a conspiracy to murder a federal agent; adequately identifies the conspiracy's object; lists the conspirators' charged overt acts; and, taken as a whole, charges defendant with conspiring willfully. As the issues defendant raises are meritless, counsel was not ineffective for failing to raise them. Moreover, defendant fails to explain why the Court should ignore the "general rule" that "an indictment cannot be questioned on a motion under Section 2255." Eisner v. United States, 351 F.2d 55, 56 (6th Cir. 1965).
Claim II. Defendant argues that the jury instructions for Count 3—which charged defendant with conspiracy to murder a federal employee—were improper. The Court, after reading the Sixth Circuit's Pattern Instruction 3.01A (the general conspiracy instruction), explained to the jury that the government was asserting that the conspiracy's object was the murder of a federal employee. Trial Tr. June 3, 2014, pp. 18-19. Defendant objects that this is equivalent to a "murder charge." Def.'s Mot. p. 16. This is incorrect. Common sense and 3.01A's commentary requires the Court to inform the jury of the alleged conspiracy's object. Therefore, the instruction was proper, and counsel was not ineffective for failing to object to it.
Claim III. Defendant argues that Count 5—entitled, "Possession of a Firearm in Furtherance of a Drug Trafficking Crime, Aiding and Abetting — 18 U.S.C. §§ 2, 924(c)"—charged him only with possessing a firearm in furtherance of a drug trafficking crime, and not a crime of violence. Thus, he says, the Court erred by instructing the jury that he could be liable under Count 5 for possessing a firearm in furtherance of a drug trafficking or a crime of violence. Def.'s Mot. pp. 21-26. But defendant's argument focuses only on Count 5's title and ignores its body, which charges: "[Defendant] did knowingly possess a firearm . . . in furtherance of a crime of violence and a drug trafficking crime." Indictment Count 5, ¶ 2 (emphasis added). Therefore, defendant's claim is meritless, and counsel was not ineffective for failing to raise it.
Claims IV and V. In May 2014, the Court held a hearing on the government's motion to preclude defendants from asserting an entrapment defense at trial. Counsel responded to the government's motion and had co-defense counsel appear on his behalf. The Court denied the government's motion and allowed defendants to assert entrapment defenses at trial. Defendant argues that counsel's absence prejudiced him and allowed the trial to continue. Defendant is incorrect. First, the Court strongly doubts that counsel's absence violated defendant's rights because defendant fails to show that a pretrial hearing on potential defenses is a critical stage of litigation. Second, defendant fails to articulate how he was prejudiced. The motion was decided in his favor, and he has not shown how his counsel, had he appeared at the hearing, could have prevented the trial. Because Claim IV is meritless, appellate counsel was not ineffective for failing to raise it.
Claim VI. Defendant contends that the government improperly argued in its closing that he robbed and murdered someone. The Court disagrees. The government's theory of the case—clear from the beginning—was that defendant planned to murder Agent Nethers, not that he actually murdered him. Consequently, even if it misspoke and stated that defendant murdered Agent Nethers (as the transcript suggests), this mistake was harmless, especially because Agent Nethers testified at trial. Thus, Claim VI is meritless and counsel was not ineffective for failing to raise it.
Claim VII. Count 7 charged defendant with possession with intent to distribute crack cocaine from May 2013 to October 2013. While defendant was in jail awaiting trial, he called his girlfriend asking her to sell crack cocaine he had hidden in a black scarf in her home. Unbeknownst to him, these calls were recorded. The government executed a search warrant on the home and found the scarf and cocaine. It introduced the scarf, cocaine, and recorded calls at trial to prove Count 7. Thus, to the extent defendant believes that this evidence was admitted as prior bad act testimony under Fed. R. Evid. 404(b), he is wrong. The evidence is highly probative of his guilt on Count 7, and counsel was not ineffective for failing to object to its admission.
Claim VIII. Defendant argues that counsel was ineffective for failing to object to the admission of his criminal history. Defendant's entrapment defense "requires proof of two elements: (1) government inducement of the crime, and (2) lack of predisposition on the part of the defendant to engage in the criminal activity." United States v. Khalil, 279 F.3d 358, 364 (6th Cir. 2002). One relevant factor in determining a defendant's predisposition is his "prior criminal record." Id. As the Sixth Circuit noted on appeal defendant's criminal history was relevant, "persuasive evidence that [he was] predisposed to commit violence, robbery, and drug-related offenses." Wilson, 653 Fed. App'x at 439. Counsel was not ineffective for failing to object to the admission of defendant's criminal history.
Claims IX and X. Defendant argues that the Court incorrectly calculated his sentencing guideline range for Count 3 and considered him an armed career criminal for Count 6. But even assuming that the Court's Count 3 sentence was incorrect—and that the error would be cognizable, see Jones v. United States, 178 F.3d 790, 796 (6th Cir. 1999) (stating that sentencing errors are not usually cognizable under § 2255)—that error "did not affect [defendant's] substantial rights because [he] was subject to a mandatory life sentence for Count 4." Id. at 21. For the same reason, even if the Court incorrectly considered defendant an armed career criminal on Count 6, his substantial rights were not affected. Id. Thus, defendant fails to show the "substantial and injurious effect" or "actual prejudice" required by Brecht, his claim is meritless, and counsel was not ineffective for failing to object to the Court's calculations.
Claim XI. During the trial, the government provided the jurors non-evidentiary transcripts to help them understand an audio recording. Co-defense counsel objected. The Court allowed the jurors to use the transcript, but reminded them that only the recording, not the transcript, was evidence. At some point, the government's counsel noticed a juror leaving the courtroom with a transcript; the Court directed the clerk to retrieve it. Later, when the jury asked for transcripts during deliberations, the Court—with the government and defense counsels' approval—told it that the transcripts were not evidence. Though defendant titles this claim an ineffective-assistance claim, his argument is not actually about counsel, but the Court. He contends that the Court should have stopped the rogue juror from leaving while still holding the transcript binder and that it should have verified the transcript's accuracy before letting the jury see it. Def.'s Am. to the Mot. pp. 6, 10. Defendant's argument barely mentions counsel and fails to show how he was ineffective. Finally, defendant has "not established that [he was] prejudiced. See Jacob, 377 F.3d at 582 (any error was harmless where district court repeatedly instructed that the transcript was not evidence and a substantial portion of the tape was not inaudible)." Wilson, 653 F. App'x at 446.
Claim XII. Defendant argues that "[c]ounsel put forth no effort to suppress" Nunn's recording. Def.'s Am. to the Mot. p. 15. But he is wrong. As defendant admits in his amendment to his motion, counsel did in fact object during trial to the recording's admission, and the docket shows that counsel filed a motion in limine seeking to exclude the recording. Id. at 14; [docket entry 60]. Defendant's contention (again) seems directed not at counsel, but at the Court's ruling. He fails to show that his counsel was ineffective on this claim.
Claim XIII. Defendant argues that his appellate counsel was ineffective for failing to raise the issue of "sentencing manipulation for drug type." Def.'s Am. to the Mot. p. 18. The Sixth Circuit does not "recognize the defenses of sentencing entrapment or sentence manipulation." United States v. McGee, 510 F. App'x 377, 385 (6th Cir. 2013). Appellate counsel was not ineffective for failing to raise a non-existent defense.
Claim XIV. Defendant argues that counsel was ineffective for failing to subpoena Nunn to support defendant's entrapment defense. He fails to explain, however, what Nunn would have said and, by extension, fails to show whether Nunn would have aided his defense. And even had Nunn's testimony been favorable, its value would have been merely marginal given both defendant's opportunity to fully present his entrapment defense using other evidence and the overwhelming evidence that militated against his entrapment defense.
Claim XV. Finally, defendant argues that appellate counsel was ineffective for failing to address counsel's failure to make a Rule 29 motion. But because counsel did in fact make a Rule 29 motion, Trial Tr. June 3, 2014, pp. 4-5, appellate counsel was not ineffective for failing to raise this meritless issue.
For the foregoing reasons,
IT IS ORDERED that defendant's motion to amend the motion to vacate is granted.
IT IS FURTHER ORDERED that defendant's "motion for reply" is granted.
IT IS FURTHER ORDERED that defendant's motion to amend his reply is granted.
IT IS FURTHER ORDERED that defendant's motion to vacate is denied.
