ELIZABETH A. PRESTON DEAVERS, Magistrate Judge.
Petitioner has filed a Motion to Vacate under 28 U.S.C. § 2255. (ECF No. 64.) This matter is before the Court on the instant motion and Memorandum of Law in Support (ECF No. 72), Respondent's Response in Opposition (ECF No. 75), Petitioner's Reply and Notice of Santillana v. Upton (ECF Nos. 76, 77), and the exhibits of the parties. For the reasons that follow, the Magistrate Judge
The United States Court of Appeals for the Sixth Circuit summarized the facts and procedural history of the case as follows:
(ECF No. 58.) Appellate counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 744 (1967). On March 2, 2017, the Sixth Circuit affirmed the judgment of this Court. (ECF No. 58.) On May 18, 2015, the United States Supreme Court denied the petition for a writ of certiorari. (ECF No. 61.)
On May 25, 2016, Petitioner filed the instant Motion to Vacate under 28 U.S.C. § 2255. Petitioner asserts that his recommended sentence under the advisory United States Sentencing Guidelines was incorrectly calculated, based on an intervening change in the law, i.e., the Supreme Court's decision in Molina-Martinez v. United States, ___ U.S. ___, 136 S.Ct. 1338 (2016) (claim one); and that he was denied the effective assistance of counsel, because his attorney told him that his recommended sentence would not be enhanced based on the death of Robert Ruffing if he entered a guilty plea (claim two). It is the position of the Respondent that Petitioner's claims fail to provide a basis for relief.
To obtain relief under 28 U.S.C. § 2255, a defendant must establish the denial of a substantive right or defect in the trial that is inconsistent with the rudimentary demands of fair procedure. United States v. Timmreck, 441 U.S. 780 (1979); United States v. Ferguson, 918 F.2d 627, 630 (6th Cir.1990) (per curiam). Relief under 28 U.S.C. § 2255 is available when a federal sentence was imposed in violation of the Constitution or laws of the United States or the trial court was without jurisdiction or the sentence is in excess of the maximum sentence allowed by law, or is "otherwise subject to collateral attack." United States v. Jalili, 925 F.2d 889, 893 (6th Cir. 1991). Apart from constitutional error, the question is "whether the claimed error was a `fundamental defect which inherently results in a complete miscarriage of justice,'" Davis v. United States, 417 U.S. 333, 346 (1974) (quoting Hill v. United States, 368 U.S. 424, 428-429 (1962); see also Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2006). A petitioner under § 2255 waives any non-constitutional claims he failed to raise at trial or on direct appeal except where the errors amount to something akin to a denial of due process. Mistakes in the application of the sentencing guidelines will rarely, if ever, warrant relief from the consequences of waiver. Grant v. United States, 72 F.3d 503, 506 (6th Cir. 1996).
It is well-established that a § 2255 motion "is not a substitute for a direct appeal." Ray v. United States, 721 F.3d 758, 761 (6th Cir. 2013) (quoting Regalado v. United States, 334 F.3d 520, 528 (6th Cir. 2003) (citing United States v. Frady, 456 U.S. 152, 167-68 (1982)). Accordingly, claims that could have been raised on direct appeal, but were not, will not be entertained via a motion under § 2255 unless the petitioner shows: (1) cause and actual prejudice to excuse his failure to raise the claims previously; or (2) that he is "actually innocent" of the crime. Ray, 721 F.3d at 761 (citing Bousley v. United States, 523 U.S. 614, 622 (1998) (internal citations omitted).
Petitioner asserts that he has been improperly sentenced under the advisory United States Sentencing Guidelines, because his base offense level was enhanced pursuant to U.S.S.G. § 2D1.1(a)(2) based on the death of Robert Ruffing, resulting in a total offense level of 38. See PreSentence Investigation Report, § 32.
The United States Court of Appeals for the Sixth Circuit has already affirmed Petitioner's sentence, and in so doing, held that Petitioner had waived his claim that his sentence had been improperly enhanced as a result of Ruffing's death under the terms of his negotiated Plea Agreement:
(Doc. 58, PageID# 198-201.)
Thus, the Sixth Circuit held that Petitioner had waived his claim that his sentence was improperly enhanced based on Ruffing's death, pursuant to the terms of his negotiated Plea Agreement. This Court therefore will not now again address that same issue here. "A § 2255 motion may not be used to relitigate an issue that was raised on [direct] appeal absent highly exceptional circumstances." Dupont v. United States, 76 F.3d 108, 110-111 (6th Cir. 1996) (citing United States v. Brown, 62 F.3d 1418 (6th Cir. 1995); see Jones v. United States, 178 F.3d 790, 796 (6th Cir. 1999) ("It is well settled that a § 2255 motion may not be employed to relitigate an issue that was raised and considered on direct appeal absent highly exceptional circumstances, such as an intervening change in the law.").
Petitioner argues that the Supreme Court's recent decision in Molina-Martinez, 136 S.Ct. at 1338, constitutes an intervening change in law that nonetheless permits this Court's review of the issue in these proceedings. See Reply (ECF No. 76.) This Court is not so persuaded. The Supreme Court in Molina-Martinez held that "defendants faced with an improperly calculated Guidelines range but sentenced to a term of incarceration falling within the corrected Guideline range are not required to provide some `additional evidence' that an error in calculation affected his or her sentence." Rogers v. United States, No. 2:11-CR-81-JRG-MCLC-2, 2:16-cv-135-JRG, 2017 WL 1422010, at *2 n.2 (E.D. Tenn. April 20, 2017) (citing Molina-Martinez, 136 S.Ct. at 1345-49). The Supreme Court stated, "[w]hen a defendant is sentenced under an incorrect Guidelines range — whether or not the defendant's ultimate sentence falls within the correct range — the error itself can, and most often will, be sufficient to show a reasonable probability of a different outcome absent the error." Id. at 1345. The holding in Molina-Martinez therefore does not assist Petitioner. Nothing in Molina-Martinez warrants this Court's reconsideration of the Sixth Circuit's conclusion that Petitioner waived his claim regarding the enhancement of his sentence under the advisory sentencing guidelines based on Ruffing's death. As previously discussed, Petitioner explicitly agreed to the enhancement of his sentence on this basis pursuant to the terms of his Plea Agreement, and the Court of Appeals has determined that Petitioner entered a knowingly, intelligent, and voluntary guilty plea.
Petitioner also refers to Santillana v. Upton, 846 F.3d 779 (5th Cir. 2017). Notice (ECF No. 77.) In Santillana v. Upton, the United States Court of Appeals for the Fifth Circuit held that the Supreme Court's decision in Burrage v. United States, — U.S. —, 134 S.Ct. 881 (2014), applied retroactively to cases on collateral review, reversing the District Court's dismissal of a habeas corpus petition based on the contrary conclusion, and remanding the case for further proceedings.
United States v. Noble, No. 1:14-cr-135, 2017 WL 626139, at *5 (N.D. Ohio Feb. 15, 2017).
In any event, Burrage does not assist Petitioner. As discussed, Petitioner waived this issue pursuant to the terms of his negotiated Plea Agreement. Notably, by entry of his guilty plea, the government did not seek the statutory enhancement provided for under § 841(b)(1)(C) based on the death or serious bodily injury of an individual from the drugs at issue.
Additionally, the record indicates that the government would have been able to establish that the heroin Petitioner sold caused Ruffing's death. The prosecutor's summary of the statement of facts indicates that, on August 4, 2013, Petitioner distributed heroin to Robert Ruffing,
Guilty Plea Transcript (ECF No. 56, PageID# 152.) Petitioner agreed with these facts. Although he did dispute whether he had provided Ruffing with the heroin that caused Ruffing's death, Petitioner acknowledged that he had made recorded statements of an incriminating nature to others in this regard, indicated that a separate witness would have provided additional testimony about other statements he had made, and that cell phone records also tied him to Ruffing's death. (PageID# 152-53.) The PreSentence Investigation Report also indicates:
PreSentence Investigation Report, ¶ 17.
Id. at ¶ 27.
Petitioner has failed to establish that he is entitled to relief based upon improper calculation of his sentencing guidelines.
Petitioner asserts that he was denied the effective assistance of counsel. Petitioner claims that his attorney incorrectly advised him that, if he pleaded guilty, his recommended sentence would not be increased based on Ruffing's death. However, Petitioner acknowledges that the express terms of his Plea Agreement indicate otherwise:
Plea Agreement (ECF No. 34, PageID# 65.) Petitioner nonetheless maintains that defense counsel promised him, in an off-the-record conversation outside of the Court's presence, that if he pleaded guilty, his sentence would not be enhanced as a result of Ruffing's death. Petitioner requests an evidentiary hearing on this claim. See Petitioner's Reply (ECF No. 76.)
The Sixth Amendment to the United States Constitution guarantees a criminal defendant the right to the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). In order to prevail on a claim of ineffective assistance of counsel, a petitioner must demonstrate both that counsel's performance was deficient, or that counsel "made errors so serious that counsel was not functioning as the `counsel' guaranteed" by the Sixth Amendment, and that this deficient performance prejudiced the petitioner. Id. at 687. This showing requires that defense counsel's errors were so serious as to deprive the defendant of a fair and reliable trial. Id.
"Surmounting Strickland's high bar is never an easy task." Padilla v. Kentucky, 599 U.S. 356, 371 (2010). Given the difficulties inherent in determining whether an attorney's performance was constitutionally deficient, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. . . ." Strickland, 466 U.S. at 689. Nevertheless, "[a]n 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. In order to establish prejudice, a petitioner must demonstrate a reasonable probability that, but for counsel's errors, the result of the proceedings would have been different. Id. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. Because a petitioner must satisfy both prongs of Strickland in order to demonstrate the ineffective assistance of counsel, should a court determine that the petitioner has failed to satisfy one prong, it need not consider the other. Id. at 697.
A defendant may challenge the entry of a plea of guilty on the basis that counsel's ineffectiveness prevented the plea from being knowing and voluntary. Tollett v. Henderson, 411 U.S. 258, 267 (1973). Strickland's two part test of deficient performance and prejudice also applies to challenges to guilty pleas based on a claim of ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 59 (1985); Sparks v. Sowders, 852 F.2d 882, 884 (6th Cir. 1988). In order to establish prejudice in the context of a guilty plea, "the defendant 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." Hill v. Lockhart, 474 U.S. at 58-59. Petitioner cannot meet this standard here.
Petitioner's allegation now that his attorney advised him in an off-the-record conversation that his sentence would not be increased based on Ruffing's death is simply not worthy of credit in view of the record before this Court. As already discussed, Petitioner signed a Plea Agreement whereby he agreed that his total base offense level under the recommended United States Sentencing Guidelines would be 38 because the offense of conviction established that the death of an individual resulted from the use of the heroin that he distributed. Plea Agreement (ECF No. 34, PageID# 65.) At the time of his guilty plea, Petitioner stated that his attorney had fully advised him on the nature and meaning of the charge and any defenses he may have. Guilty Plea Transcript (ECF No. 56, PageID# 132.) Petitioner was satisfied with counsel's representation. (PageID# 132-33.) He understood he faced up to twenty years in prison and that the Court could impose the maximum term. (PageID# 134, 135.) He had discussed with his attorney how the advisory sentencing guidelines might apply in his case. (PageID# 139.) He understood that the Court could not determine the advisory guideline sentence for his case until after preparation of the presence report and that the Court would not be bound by any stipulation of facts between Petitioner and the government, but would make the determination of relevant facts for sentencing. (PageID# 139.) He understood that the Court had the authority to impose a sentence that was more or less severe than provided for by the advisory sentencing guidelines. (PageID# 139.) He understood that if the Court imposed a sentence more severe than he expected he would still be bound by his guilty plea and would not have the right to withdraw the guilty plea. (PageID# 140.) The prosecutor summarized the terms of the plea agreement, including that Petitioner faced up to twenty years imprisonment. In exchange for Petitioner's guilty plea, the government agreed not to file an Information pursuant to 21 U.S.C. § 851 seeking to increase the maximum sentence for Petitioner's conviction. (PageID# 143.) The government also agreed to dismiss the remaining counts of the Indictment and not to file additional criminal charges against Petitioner based on the activities charged in the Indictment or occurring prior to the time of the Indictment. (PageID# 144-45.) The government agreed that Petitioner had timely accepted responsibility and would be entitled to a three-level reduction in his offense level. The parties also agreed that, because the offense of conviction established that the death of an individual resulted from the use of the heroin that was distributed, Petitioner had a base offense level of 38. (PageID# 146.) Petitioner acknowledged that the Court had not yet determined a sentence, and therefore, any estimate of the probable sentencing range he may have received either from his attorney, the United States, or the probation office was simply a prediction, and not a promise. (PageID# 146.) The United States expressly made no promise concerning the sentence that would be imposed, and Petitioner acknowledged that he could not withdraw his guilty plea based on the actual sentence he received. (PageID# 147.) Petitioner agreed with those terms. (PageID# 147.) He expressly denied being made any other promises or being given any assurances of any kind from anyone that had induced his guilty plea. (PageID# 148.) He understood that any recommendation of a sentence to which his attorney and the government, or any agreement by the government not to oppose a sentence requested by his attorney, would not be binding on the Court. He indicated that he understood that he might receive a more severe sentence than requested or recommended. (PageID# 148.) He would still be bound by his plea of guilty and would have no right to withdraw the guilty plea. (Id.)
Guilty Plea Transcript (ECF No. 56, PageID# 149-150.) In view of this record, Petitioner's allegations that his attorney made him an off-the-record promise that his sentence would not be enhanced based on Ruffing's death is simply not worthy of credit.
Blackledge v. Allison, 431 U.S. 63, 73-75 (1977). Petitioner has failed to establish the denial of the effective assistance of counsel.
Claim two is without merit.
If any party objects to this Report and Recommendation, that party may, within fourteen days of the date of this Report, file and serve on all parties written objections to those specific proposed findings or recommendations to which objection is made, together with supporting authority for the objection(s). A judge of this Court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. Upon proper objections, a judge of this Court may accept, reject, or modify, in whole or in part, the findings or recommendations made herein, may receive further evidence or may recommit this matter to the magistrate judge with instructions. 28 U.S.C. 636(B)(1).
The parties are specifically advised that failure to object to the Report and Recommendation will result in a waiver of the right to have the district judge review the Report and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
The parties are further advised that, if they intend to file an appeal of any adverse decision, they may submit arguments in any objections filed, regarding whether a certificate of appealability should issue.
