OPINION & ORDER

MICHAEL R. BARRETT, District Judge.

This matter is before the Court on Petitioner Randall Sutton's two Motions under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (Case No. 1:05cr183-1, Doc. 186; Case No. 1:07cr78-1, Docs. 12, 13). The United States filed Responses in Opposition. (Case No. 1:05cr183-1, Doc. 195; Case No. 1:07cr78-1, Doc. 19.) Petitioner filed a Reply. (Case No. 1:07cr78-1, Doc. 20.) In addition, the United States filed a Motion to Amend/Correct its Response in Opposition (Case No. 1:05cr183-1, Doc. 205); Petitioner filed a Supplemental Memorandum Supporting his Motion to Vacate under 28 U.S.C. 2255 (Case No. 1:05cr183-1, Doc. 206); and the United States filed a Motion to Withdraw Motion to Amend/Correct. (Case No. 1:05cr183-1, Doc. 208).

Also before the Court are Petitioner's Motions for Judgment on the Pleadings, or in the Alternative, for Summary Judgment (Case No. 1:05cr183-1, Doc. 194; Case No. 1:07cr78-1, Doc. 18).

For good cause shown, the United States' Motion to Withdraw Motion to Amend/Correct (Case No. 1:05cr183-1, Doc. 208; 1:07cr78-1, Doc. 22) is GRANTED.

I. Prior Proceedings

Petitioner was involved in four armed bank robberies. One occurred in Kentucky, and three occurred in Ohio.1 Petitioner was charged in federal court in Ohio and Kentucky. In this Court, Petitioner was indicted on six counts: in Counts 1, 3 and 5 Petitioner was charged with armed bank robbery in violation of Title 18 U.S.C. § 2113(a) and (d), and in Counts 2, 4 and 6, Petitioner was charged with carrying and brandishing a firearm during a crime of violence in violation of 18 U.S.C. § 924 (c)(1). (Case No. 1:05cr183-1, Doc. 2.) ("the Ohio Indictment"). In the Eastern District of Kentucky, Petitioner was indicted on four counts: in Count 1, Petitioner was charged with aiding and abetting and armed bank robbery in violation of 18 U.S.C. § 2113 (a) and (d), and 18 U.S.C. § 2; in Count 2, Petitioner was charged with carrying and brandishing a firearm during a crime of violence in violation of 18 U.S.C. § 924 (c)(1); in Count 3, Petitioner was charged with being a felon in possession in violation of 18 U.S.C. § 922(g)(1); and in Count 4, Petitioner was charged with forfeiture of the firearm under 18 U.S.C. § 924(d)(1) and 28 U.S.C. § 2461. (Case No. 1:07cr78-1, Doc. 1-1.) ("Athe Kentucky Indictment").

On November 7, 2006, Petitioner's signed plea agreement was entered into this Court's record. (Doc. 75.) The plea agreement provides that Petitioner will enter a plea of guilty to Counts 1 and 2 of the Ohio Indictment. The plea agreement also provides that Petitioner agrees "to waive jurisdiction and proceed under Rule 20 and enter a plea of guilty to one additional count of Bank Robbery, in violation of 18 U.S.C. § 2113 (a) and (d) and one additional count of Carrying and Brandishing a Firearm During the Commission of a Crime of Violence in violation of 18 U.S.C. § 924(c) currently charged in the Eastern District of Kentucky." (Id. at 1-2.)

On February 15, 2007, Petitioner came before this Court to enter a guilty plea. (Doc. 98.) In reviewing the terms of the plea agreement, the AUSA explained:

(Id. at 15-16.)

During the plea hearing, the Court and counsel had the following discussion:

(Doc. 146, at 5-6.) At the end of the hearing the following discussion took place:

(Doc. 146, at 27-28.)

On June 27, 2007, the charges from Kentucky were transferred to this Court and the case was assigned Senior Judge S. Arthur Spiegel. (Doc. 1) On July 3, 2007, the undersigned consolidated the two cases. (Doc. 116.)

The next time Petitioner was before the Court was for sentencing on August 29, 2007. The Court summarized the proceedings as follows:

(Doc. 149, at 2-3.) Petitioner was sentenced as follows: on Count 1 of the Ohio Indictment Petitioner was sentenced to 132 months BOP Custody; on Count 1 of the Rule 20 Kentucky Indictment Petitioner was sentenced to 132 BOP Custody. The sentences on these two counts are to be served concurrently. On Count 2 of the Ohio Indictment, Petitioner was sentenced to 84 months BOP Custody to be served consecutively to the First Counts of the Ohio and Kentucky sentences. On Count Two of the Rule 20 Kentucky Indictment, Petitioner was sentenced to 300 months BOP Custody to be served consecutively to the forgoing. This results in a total sentence of 516 months.2

Petitioner filed a direct appeal, which was denied on January 19, 2011 (Doc. 171) and a request for certiorari to the United States Supreme Court was denied on April 27, 2011 (Doc. 180).

II. Section 2255 Claims

In the petition filed in Case No. 1:05cr183, Petitioner claims the following grounds entitle him to relief: (Ground One) the Government's factual basis does not support each essential element of the bank robbery offense; (Ground Two) his trial counsel was ineffective; and (Ground Three) his appellate counsel was ineffective.

In the petition filed in Case No. 1:07cr78, Petitioner claims the following grounds entitle him to relief: (Ground One) this Court was without authority to sentence him because he never entered a plea to the charges in the Kentucky Indictment; (Ground Two) the Government did not show that the financial institution was insured by the FDIC; and (Ground Three) his trial and appellate counsel were ineffective.

In addition, Petitioner requests an evidentiary hearing to allow him to "more fully prove his meritorious constitutional claims with the assistance of professional counsel." (Case No. 1:07cr78-1, Doc. 13, at 23).

III. Analysis

A prisoner seeking relief under 28 U.S.C. § 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." Mallett v. United States, 334 F.3d 491, 496-97 (6th Cir. 2003) (citing Weinberger v. U.S., 268 F.3d 346, 351 (6th Cir. 2001), cert. denied, 535 U.S. 967).

A. Kentucky Indictment

The Government has waived any affirmative defense it may have that Petitioner has procedurally defaulted his claim that he never entered a plea as to the charges in the Kentucky Indictment. (See United States' Motion to Withdraw Motion to Amend/Correct (Case No. 1:05cr183-1, Doc. 208; 1:07cr78-1, Doc. 22)).

The Court finds that its failure to elicit a guilty plea to the charges in the Kentucky Indictment constitutes an error of fact or law that was so fundamental as to render the entire proceeding invalid. Therefore, the Court GRANTS Petitioner's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence as to Ground One in Case No. Case No. 1:07cr78-1. (Docs. 12, 13).

Accordingly, the Court VACATES Petitioner's convictions on the two Kentucky counts. Petitioner will be permitted the opportunity to enter a valid plea to the Kentucky charges, consistently with his plea agreement.

B. FDIC

In Ground One in Case No. 1:05cr183 and in Ground Two in Case No. 1:07cr78-1 Petitioner argues that Government's factual basis does not support each essential element of the bank robbery offense because the Government did not show that the financial institution was insured by the FDIC.

Petitioner points out that during the plea hearing, Agent Ott testified that Huntington Bank was "a member of the Federal Deposit Insurance Corporation." Petitioner claims that alleging that a bank is a member of the FDIC is not sufficient to show that the bank's finances are insured by the FDIC.

At the outset, the Court notes that Petitioner failed to raise the issue of whether the financial institutions were insured by the FDIC as part of his direct appeal. The only claims that Petitioner raised on direct appeal were: (1) this Court erred in denying his motions to suppress, and (2) a challenge to the procedural and substantive reasonableness of his sentence. U.S. v. Randall Sutton, 406 Fed.Appx. 955, 957 (6th Cir. 2011). Accordingly, Petitioner has procedurally defaulted this claim.

"Where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised only if the defendant can first demonstrate either `cause' and actual `prejudice,' or that he is `actually innocent.'" Bousley v. United States, 523 U.S. 614, 622, 118 S.Ct. 1604, 1611, 140 L. Ed. 2d 828 (1998) (citations omitted).

To demonstrate cause, Petitioner explains that his failure to raise this issue was due to the ineffective assistance of counsel.3 "Attorney error may constitute cause if it rises to the level of constitutionally ineffective assistance of counsel." Barrow v. United States, 8 F. App'x 286, 288 (6th Cir. 2001) (citing Rust v. Zent, 17 F.3d 155, 161 (6th Cir. 1994)). As discussed below, Petitioner has not satisfied this burden.

D. Ineffective assistance of counsel

"The Supreme Court has established that for a criminal defendant in federal custody a motion under 28 U.S.C. § 2255 is generally the preferred mode for raising a claim of ineffective assistance of counsel." United States v. Ferguson, 669 F.3d 756, 762 (6th Cir. 2012) (citing Massaro v. United States, 538 U.S. 500, 504 (2003) ("[i]n most cases a motion brought under § 2255 is preferable to direct appeal for deciding claims of ineffective assistance.").

"In order to succeed on an ineffective assistance of counsel claim in the context of a guilty plea, a defendant must demonstrate that counsel's performance was deficient and that the deficient performance prejudiced his defense such that there is `a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.'" Id. (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)). Claims of ineffective assistance of counsel in the plea bargain context are governed by the two-part test set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984). Missouri v. Frye, 132 S.Ct. 1399, 1405 (2012). Under the first prong, the petitioner must show that counsel's representation fell below an objective standard of reasonableness. Id. at 56. Under the second prong, the petitioner must show "that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Id. at 58.

In the petition filed in Case No. 1:05cr183, Petitioner claims that his trial counsel's representation fell below an objective standard of reasonableness because his trial attorney failed to raise the issue regarding insufficient proof of the banks' deposits being insured by the FDIC.4 Petitioner claims that his appellate counsel was ineffective because he failed to raise the issue of ineffectiveness of trial counsel.

In the petition filed in Case No. 1:07cr78, Petitioner claims that his counsel's representation fell below an objective standard of reasonableness because his trial attorney failed to notify the Court that a plea to the Kentucky Indictment was never entered; and failed to argue that the Government provided insufficient proof regarding the bank's deposits being insured by the FDIC. Petitioner claims appellate counsel was ineffective for failing to raise both these issues, as well as failing to raise a claim of ineffective assistance of trial counsel.

Because Petitioner has been granted relief as to the Kentucky Indictment (Ground One in Case No. 1:07cr78), Petitioner's claims that his counsel was ineffective for failing to inform the Court that there was never a plea to the Kentucky Indictment are moot.

"As a general rule, a defendant may not raise ineffective-assistance-of-counsel claims for the first time on direct appeal, since there has not been an opportunity to develop and include in the record evidence bearing on the merits of the allegations." United States v. Warman, 578 F.3d 320, 348 (6th Cir. 2009)). Therefore, there was no error in appellate counsel's failure to raise ineffective-assistance-of-counsel claims concerning trial counsel's performance. Accord Haynes v. United States, No. 07-20639, 2014 WL 103216, at *4 (E.D. Mich. Jan. 10, 2014).

Therefore, the only remaining basis for claiming ineffective assistance of counsel centers on the Government's proof as to the banks' deposits being insured by the FDIC.

"In a bank robbery prosecution under 18 U.S.C. § 2113(a), the government must prove that the victim bank's deposits were insured by the FDIC at the time of the robbery in order to establish the jurisdictional element of the offense." United States v. Pacheco, 466 F. App'x 517, 523 (6th Cir. 2012) (citing United States v. Sandles, 469 F.3d 508, 513 (6th Cir.2006)). The Sixth Circuit has explained:

Burch v. United States, 875 F.2d 862 (6th Cir. 1989). Moreover, the Indictments filed in the Ohio and Kentucky cases expressly state that the deposits of the banks were insured by the FDIC at the time of the robberies. (Case No. 1:05cr183-1, Doc. 2; Case No. 1:07cr78-1, Doc. 1-1). "An indictment which alleges that the defendant robbed a bank the deposits of which were insured by the Federal Deposit Insurance Corporation is sufficient to establish federal jurisdiction." Id. (citing Wheeler v. United States, 317 F.2d 615, 617 (8th Cir. 1963). Petitioner's counsel cannot be deemed insufficient for failing to raise a meritless issue.

Because Petitioner has not shown that his counsel's performance fell below an objective standard of reasonableness, the Court finds it unnecessary to address the issue of prejudice. See Strickland, 466 U.S. at 694 (directing that courts need not address both components of the inquiry "f the defendant makes an insufficient showing on one". Therefore, Petitioner is not entitled to habeas relief based upon a claim of ineffective assistance of counsel.

IV. Conclusion

Pursuant to Title 28 U.S.C. § 2255, the Court finds that motions, files, and records of this case show that Petitioner is entitled to partial relief. A hearing is not necessary to determine the remaining issues and make the findings of fact and conclusions of law with respect thereto. Accord Smith v. U.S., 348 F.3d 545, 550-51 (6th Cir. 2003). Accordingly, it is ORDERED that:

IT IS SO ORDERED.