JON PHIPPS McCALLA, District Judge.
Before the Court is the Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody ("§ 2255 Motion") filed by Movant, Arthur Withers, Bureau of Prisons ("BOP") register number 22138-076, who is currently an inmate at the Federal Correctional Institution Beckley in Beaver, West Virginia (§ 2255 Mot., Withers v. United States, No. 2:11-cv-03134-JPM-dkv (W.D. Tenn.), ECF No. 1),
On November 8, 2007, a federal grand jury returned a single-count indictment charging Withers, a convicted felon, with possessing a Beretta .32 caliber semi-automatic pistol on or about August 1, 2007, in violation of 18 U.S.C. § 922(g). (Indictment, United States v. Withers, No. 2:07-cr-20339-JPM (W.D. Tenn.), ECF No. 1.) The factual basis for this charge is stated in the presentence report ("PSR"):
(PSR ¶¶ 5-9.)
Pursuant to a written Plea Agreement, Withers appeared before this judge on April 24, 2009 to plead guilty to the sole count of the Indictment. (Min. Entry, United States v. Withers, No. 2:07-cr-20339-JPM (W.D. Tenn.), ECF No. 47; Plea Agreement, id., ECF No. 50.) On July 17, 2009, the Government filed a position paper that argued for an enhancement for obstruction of justice based on letters written by Withers that appeared to advise a potential witness how to testify at a suppression hearing. (Position of the United States at 1, id., ECF No. 52.) Notwithstanding this conduct, the Government took the position that Withers should be awarded a reduction for acceptance of responsibility. (Id. at 1-2.)
At a sentencing hearing on July 22, 2009, the Court sentenced Withers to a term of imprisonment of one hundred four months, to be followed by a three-year period of supervised release. (Min. Entry, United States v. Withers, No. 2:07-cr-20339-JPM (W.D. Tenn.), ECF No. 54; Sentencing Hr'g Tr. 61, 70, id., ECF No. 63.)
The United States Court of Appeals for the Sixth Circuit affirmed Withers' sentence. United States v. Withers, 405 F. App'x 951 (6th Cir. 2010).
On December 28, 2011, Withers filed his pro se § 2255 Motion, accompanied by a legal memorandum. (§ 2255 Mot., Withers v. United States, No. 2:11-cv-03134-JPM-dkv (W.D. Tenn.), ECF No. 1; Mem., id., ECF No. 1-1.) The issues presented in Withers' § 2255 Motion are as follows:
On May 25, 2012, Withers submitted a letter to this judge and various letters he had received. (Letter, Withers v. United States, No. 2:11-cv-03134-JPM-dkv (W.D. Tenn.), ECF No. 2.)
In an order issued on December 21, 2012, the Court directed the Government to respond to the § 2255 Motion. (Order, id., ECF No. 3.) The order provided that "[t]he Government may limit its response to the third issue presented by Defendant, whether defense counsel was ineffective by recommending that Defendant plead guilty despite asserted misconduct by the police." (Id. at 1-2.)
On March 4, 2013, the Government filed the Response of the United States to Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 ("Answer"), which included the declaration of Movant's trial counsel, Eugene Laurenzi. (Answer, Withers v. United States, No. 2:11-cv-03134-JPM-dkv (W.D. Tenn.), ECF No. 6; Laurenzi Decl., id., ECF No. 6-1.) On May 29, 2013, Withers filed his reply, which was titled "Brief Motion To Vacate, Set Aside, or Correct Pursuant to 28 U.S.C. 2255 Pro Se" ("Reply"). (Reply, id., ECF No. 11.)
On April 19, 2013, Withers filed a Motion to Amend Pursuant to Rules of Civil Procedure Rule 15(c)(1)(B). (Mot. to Amend, id., ECF No. 10.) The proposed amendment, which is not on the official form, contains additional argument in support of Claim 3. In the absence of objection by the Government, leave to amend is GRANTED. The Court will consider the additional arguments set forth in the amendment.
Pursuant to 28 U.S.C. § 2255(a),
"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." Short v. United States, 471 F.3d 686, 691 (6th Cir. 2006) (internal quotation marks omitted).
A § 2255 motion is not a substitute for a direct appeal. See Ray v. United States, 721 F.3d 758, 761 (6th Cir. 2013). "[N]onconstitutional claims that could have been raised on appeal, but were not, may not be asserted in collateral proceedings." Stone v. Powell, 428 U.S. 465, 477 n.10 (1976). "Defendants must assert their claims in the ordinary course of trial and direct appeal." Grant v. United States, 72 F.3d 503, 506 (6th Cir. 1996). This rule is not absolute:
Id.
Even constitutional claims that could have been raised on direct appeal, but were not, will be barred by procedural default unless the movant demonstrates cause and prejudice sufficient to excuse his failure to raise those issues previously. El-Nobani v. United States, 287 F.3d 417, 420 (6th Cir. 2002) (withdrawal of guilty plea); Peveler v. United States, 269 F.3d 693, 698-99 (6th Cir. 2001) (new Supreme Court decision issued during pendency of direct appeal); Phillip v. United States, 229 F.3d 550, 552 (6th Cir. 2000) (trial errors). Alternatively, a movant may obtain review of a procedurally defaulted claim by demonstrating his "actual innocence." Bousley v. United States, 523 U.S. 614, 622 (1998).
"[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." Jones v. United States, 178 F.3d 790, 796 (6th Cir. 1999); see also DuPont v. United States, 76 F.3d 108, 110 (6th Cir. 1996) (same).
After a § 2255 motion is filed, it is reviewed by the Court and, "[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion." Rule 4(b), Rules Governing Section 2255 Proceedings for the United States District Courts ("§ 2255 Rules"). "If the motion is not dismissed, the judge must order the United States attorney to file an answer, motion, or other response within a fixed time, or to take other action the judge may order." Id. The movant is entitled to reply to the Government's response. Rule 5(d), § 2255 Rules. The Court may also direct the parties to provide additional information relating to the motion. Rule 7, § 2255 Rules.
"In reviewing a § 2255 motion in which a factual dispute arises, the habeas court must hold an evidentiary hearing to determine the truth of the petitioner's claims." Valentine v. United States, 488 F.3d 325, 333 (6th Cir. 2007) (internal quotation marks omitted). "[N]o hearing is required if the petitioner's allegations cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact." Id. (internal quotation marks omitted). Where the judge considering the § 2255 motion also presided over the criminal case, the judge may rely on his or her recollection of the prior case. Blanton v. United States, 94 F.3d 227, 235 (6th Cir. 1996); see also Blackledge v. Allison, 431 U.S. 63, 74 n.4 (1977) ("[A] motion under § 2255 is ordinarily presented to the judge who presided at the original conviction and sentencing of the prisoner. In some cases, the judge's recollection of the events at issue may enable him summarily to dismiss a § 2255 motion."). Movant has the burden of proving that he is entitled to relief by a preponderance of the evidence. Pough v. United States, 442 F.3d 959, 964 (6th Cir. 2006).
In Claim 1, Withers complains that the Government's objection that the PSR failed to include an enhancement for obstruction of justice was untimely. (§ 2255 Mot. at PageID 4, Withers v. United States, No. 2:11-cv-03134-JPM-dkv (W.D. Tenn.), ECF No. 1.) The factual basis for this issue is the following:
(Id.)
Claim 1, which arises from an alleged violation of the time limitations in Rule 32 of the Federal Rules of Criminal Procedure, is not cognizable in a § 2255 motion because it could have been raised on direct appeal. Therefore, Claim 1 is without merit and is DISMISSED.
In Claim 2, Withers argues that his attorney rendered ineffective assistance, in violation of the Sixth Amendment. (§ 2255 Mot. at PageID 5, Withers v. United States, No. 2:11-cv-03134-JPM-dkv (W.D. Tenn.), ECF No. 1.) The factual basis for this issue is as follows:
(Id. at PageID 5-6.)
A claim that ineffective assistance of counsel has deprived a movant of his Sixth Amendment right to counsel is controlled by the standards stated in Strickland v. Washington, 466 U.S. 668 (1984). To demonstrate deficient performance by counsel, a petitioner must demonstrate that "counsel's representation fell below an objective standard of reasonableness." Id. at 688. "A court considering a claim of ineffective assistance must apply a strong presumption that counsel's representation was within the wide range of reasonable professional assistance. The challenger's burden is to show that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Harrington v. Richter, 562 U.S. 86, 104 (2011) (internal quotation marks and citations omitted).
To demonstrate prejudice, a prisoner must establish "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694.
Withers' assumption that he would not have received an enhancement for obstruction of justice if his attorney had objected to the Government's late-filed position paper is inaccurate. Withers relies on Rule 32(f)(1) of the Federal Rules of Criminal Procedure, which states that, "[w]ithin 14 days after receiving the presentence report, the parties must state in writing any objections, including objections to material information, sentencing guideline ranges, and policy statements contained in or omitted from the report." Rule 32(e)(2) provides that "[t]he probation officer must give the presentence report to the defendant, the defendant's attorney, and an attorney for the government at least 35 days before sentencing unless the defendant waives this minimum period." Here, the PSR was prepared on June 19, 2009, thirty-three days before the sentencing on July 22, 2009. Objections were due on July 6, 2009.
Withers' assumption that an objection to the Government's late-filed position paper would have prevented him from being enhanced for obstruction of justice is incorrect. Rule 32(b)(2) provides that "[t]he court may, for good cause, change any time limits prescribed in this rule." Late-filed position papers are common and, if an objection is raised, the usual remedy is to continue the sentencing hearing if necessary to enable the opposing party adequate time to prepare. Withers does not contend that the Government's objection came as a surprise or that his attorney was not prepared to address the substance of the obstruction issue. At the sentencing hearing, defense counsel stated that "I have been through this and all I can say is this has been an issue from the beginning. . . . One of the issues was whether he ever intended to carry that through, but I told him that that is going to be an issue, so I think we're all aware of the issues . . . ." (Sentencing Hr'g Tr. 4-5, id., ECF No. 63.)
Withers' suggestion that counsel was unprepared for the sentencing hearing is contradicted by the record. As previously noted, defense counsel filed a position paper that included objections to the PSR. Counsel also made additional objections and argument at the hearing, which the Court fully considered. Withers does not identify any specific action his attorney should have taken (other than to object to the late-filed PSR), and he does not argue that, if only his attorney had raised additional objections or made different arguments, there is a reasonable probability that the sentence imposed would have been different.
In his Reply, Withers complains that his attorney was ineffective in failing to retain a handwriting specialist to investigate whether Withers wrote the letter and in failing to challenge the alleged illegal search that led to discovery of the letter. (Reply at 12-13, 17, Withers v. United States, No. 2:11-cv-03134-JPM-dkv (W.D. Tenn.), ECF No. 11.) Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted. Rakas v. Illinois, 439 U.S. 128, 133-34 (1978) (internal quotation marks and citations omitted). "A person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person's premises or property has not had any of his Fourth Amendment rights infringed." Id. at 425. "[I]n order to claim the protection of the Fourth Amendment, a defendant must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable; i.e., one that has a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society." Minnesota v. Carter, 525 U.S. 83, 89 (1998) (internal quotations marks and citations omitted). Withers "has the burden of establishing his standing to assert a Fourth Amendment violation." United States v. Smith, 263 F.3d 571, 582 (6th Cir. 2001). Nothing in Withers' filing suggests that he would have standing to challenge the search that led to the discovery of the letter soliciting perjury.
As for defense counsel's failure to retain a handwriting expert, Withers has not stated that he was not the author of the letter at issue and has not claimed that he told his attorney that he did not write the letter. Withers makes no argument that he suffered any prejudice from his attorney's failure to retain a handwriting expert.
Claim 2 is without merit and is DISMISSED.
In Claim 3, titled "Police Officer Misconduct Lt. Paul Sherman under investigation (new evidence)," Withers argues that his attorney recommended that he plead guilty to an offense that he did not commit. The factual basis for this issue is the following:
(§ 2255 Mot. at PageID 7, Withers v. United States, No. 2:11-cv-03134-JPM (W.D. Tenn.), ECF No. 1.)
The two-part test stated in Strickland v. Washington applies to challenges to guilty pleas based on the ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 57-58 (1985). "Where, as here, a defendant is represented by counsel during the plea process and enters his plea upon the advice of counsel, the voluntariness of the plea depends on whether counsel's advice was within the range of competence demanded of attorneys in criminal cases." Hill, 474 U.S. at 56 (internal quotation marks and citations omitted). "[T]o satisfy the `prejudice' requirement, 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." Id. at 59; see also Padilla v. Kentucky, 559 U.S. 356, 372 (2010) ("[T]o obtain relief on this type of claim, a [prisoner] must convince the court that a decision to reject the plea bargain would have been rational under the circumstances.").
The Government has submitted the Declaration of Withers' trial counsel, Eugene Laurenzi, which states as follows:
I, Eugene Laurenzi, attorney at law, declare under penalty of perjury as follows:
(Laurenzi Decl. ¶¶ 1-12, Withers v. United States, No. 2:11-cv-03134-JPM-dkv (W.D. Tenn.), ECF No. 6-1.)
At the change of plea hearing, Withers testified that he was fully satisfied with Laurenzi's representation and advice. (Guilty Plea Hr'g Tr. 8, United States v. Withers, No. 2:07-cr-20339-JPM (W.D. Tenn.), ECF No. 79.) Withers also testified as follows:
Id. at 12-13.) Withers testified that he understood the rights he was waiving by pleading guilty. (Id. at 17-18.) He understood the charge against him and the elements the Government would have to prove to obtain a conviction. (Id. at 18-19.)
During the recitation of the facts the Government was prepared to prove at trial, it became clear that Withers was conflicted about admitting his guilt. Mr. Laurenzi stated that "I have gone over this, we have gone over this a lot, so I think it's a tough decision for Mr. Withers.. . . We're prepared to—like I say, he has got a decision to make. So I'm—we can go to trial, we can plead, whichever he prefers. I know the facts very well." (Id. at 21.) After the Government's recitation of the facts (id. at 22-23), Laurenzi conferred with Withers and then indicted that he had no objections or corrections (id. at 23). Withers then indicated that he wanted to tell the Court what had happened to him. (Id.) At that point, the following exchange occurred:
(Id. at 23-25.) Despite his position that he never possessed the weapon, Withers made the voluntary and intelligent decision to plead guilty. Withers does not contend that his attorney threatened or coerced him to plead guilty. Although Withers emphasizes that he might have been able to impeach Lieutenant Sherman had the case gone to trial, he overlooks the fact that two of the persons who were present in the apartment at the time of the search told the police that Withers owned and had previously possessed the Colt pistol. (PSR ¶ 7.)
In his Reply and his amendment, Withers sets forth various other bits of information that he contends could have been used to impeach Lieutenant Sherman. For example, in late 2011, an opinion from the City of Memphis' ethics office concluded that Memphis Police Officers, including Sherman, who had started a company to train police for undercover work had violated city ethics rules by using their positions for private gain. Sherman, who had coordinated the Organized Crime Unit's undercover program, had the authority to recommend that officers take training at the outside company. Sherman resigned from the police department after issuance of the ethics opinion. (See Reply at 15, 20-22, Withers v. United States, No. 2:11-cv-03134-JPM-dkv (W.D. Tenn.), ECF No. 11; see also Memphis Police officer's firm runs afoul of ethics, The Commercial Appeal (Oct. 31, 2011), ECF No. 10 at PageID 77.) The ethics opinion was issued more than two years after Withers was sentenced, and nothing in his various submissions suggests that that information was available prior to the time he entered his guilty plea.
The other alleged instances of misconduct identified by Withers suffer from the same deficiencies. Withers cites two opinions by the Sixth Circuit issued after the date of his sentencing that involved testimony by Lieutenant Sherman. (See Reply at 9-10, Withers v. United States, No. 2:11-cv-03134-JPM (W.D. Tenn.), ECF No. 11.) In United States v. Walker, 506 F. App'x 482 (6th Cir. 2012), the defendant complained that the police officer witnesses, including Sherman, had improperly referred during their testimony to allegations of drug dealing that had caused them to investigate the defendant in the first place. In evaluating the effect of those statements, the Court of Appeals wrote that "[w]e will assume arguendo that all the contested statements were improper." Id. at 486. The Court of Appeals also stated, however, that "it does not appear that the statements were made in bad faith. . . . Additionally, the district court noted that it believed the improper comments were unintentional." Id. The 2010 trial in Walker post-dated Withers' guilty plea and sentencing, and the statements by Lieutenant Sherman do not go to his character for truthfulness or untruthfulness.
In United States v. Ray, 361 F. App'x 674, 676 (6th Cir. 2010), the second decision on which Withers relies, the Court of Appeals affirmed a district court finding that the defendant had consented to the officers' entry into his motel room, relying on the testimony of Sherman. The opinion concludes that "we cannot say that the district court's decision to credit the officers' testimony rather than the defendant's and his girlfriend's was clearly erroneous." Id. Withers' notes that the opinion also states that "[t]he district court acknowledged the `faint possibility' that `someone might have drawn a gun' and rejected it in light of its decision to credit the officers' testimony." Id. That the district court acknowledged the "faint possibility" that events might have transpired as the defendant testified does not constitute a finding that Sherman lied under oath. This decision, and the underlying decision on the suppression issue, would not have been admissible to impeach Sherman's character for truthfulness.
Withers also complains that his attorney did not investigate whether Sherman had ever shot a suspect. (See Reply at 9, Withers v. United States, No. 2:11-cv-03134-JPM-dkv (W.D. Tenn.), ECF No. 11.) According to Withers, this evidence, if established, might have bolstered his claim that Sherman assaulted him during the execution of the search warrant. Any such evidence would not have been admissible under Federal Rule of Evidence 608 and would have been properly excluded under Rule 403. Withers' claim that Sherman used excessive force in arresting him would also be of doubtful relevance because he did not make any incriminating statements.
Finally, Withers complains that Laurenzi had a conflict of interest because his brother, Lawrence Laurenzi, was the acting United States Attorney at the time of his indictment. (See Reply at 8, 10-12, Withers v. United States, No. 2:11-cv-03134-JPM-dkv (W.D. Tenn.), ECF No. 11.)
A familial relationship between a defense attorney and a prosecutor ordinarily does not constitute an actual conflict of interest. See United States v. Fazio, 487 F.3d 646, 655 (8th Cir. 2007) (affirming trial court's refusal to hold an evidentiary hearing on claim that the attorney a defendant had initially retained was married to an AUSA who was allegedly involved in the early investigation of the charges against him, explaining that "[w]e agree with both the government and the district court that the conflict claims were too speculative to warrant an evidentiary hearing"); Redden v. Calbone, 223 F. App'x 825, 829 (10th Cir. 2007) (denying certificate of appealability in 2254 case where prisoner alleged that his attorney's father was the county district attorney, reasoning that, "[a]lthough Redden's trial counsel and the district attorney were related, he has not shown that the relationship resulted in a division of loyalties adversely affecting the trial counsel's performance."); see also Flores-Diaz v. United States, 516 F.Supp.2d 818, 831 (S.D. Tex. 2007) (denying 2255 motion in which alien defendant argued that his attorney had a conflict of interest because his brother was a United States Marshal, noting that "Flores has not demonstrated any conflict which adversely affected his counsel's performance").
Claim 3 is without merit and is DISMISSED.
Because every issue presented by Movant has been dismissed, his motion pursuant to 28 U.S.C. § 2255 is DENIED. Judgment shall be entered for the United States.
Twenty-eight U.S.C. § 2253(a) requires the district court to evaluate the appealability of its decision denying a § 2255 motion and to issue a certificate of appealability ("COA") "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); see also Fed. R. App. P. 22(b). No § 2255 movant may appeal without this certificate.
A COA may issue only if the petitioner has made a substantial showing of the denial of a constitutional right, and the COA must indicate the specific issue(s) which satisfy the required showing. 28 U.S.C. §§ 2253(c)(2) & (3). A "substantial showing" is made when the movant demonstrates that "reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (internal quotation marks and citation omitted); see also Henley v. Bell, 308 F. App'x 989, 990 (6th Cir. 2009) (per curiam) (same). A COA does not require a showing that the appeal will succeed. Miller-El, 537 U.S. at 337; Caldwell v. Lewis, 414 F. App'x 809, 814-15 (6th Cir. 2011) (same). Courts should not issue a COA as a matter of course. Bradley v. Birkett, 156 F. App'x 771, 773 (6th Cir. 2005).
In this case, for the reasons previously stated, the issues raised by Movant lack substantive merit and, therefore, he cannot present a question of some substance about which reasonable jurists could differ. The Court therefore DENIES a certificate of appealability.
The Sixth Circuit has held that the Prison Litigation Reform Act of 1995, 28 U.S.C. §§ 1915(a)-(b), does not apply to appeals of orders denying § 2255 motions. Kincade v. Sparkman, 117 F.3d 949, 951 (6th Cir. 1997). Rather, to appeal in forma pauperis in a § 2255 case, and thereby avoid the appellate filing fee required by 28 U.S.C. §§ 1913 and 1917, the prisoner must obtain pauper status pursuant to Federal Rule of Appellate Procedure 24(a). Kincade, 117 F.3d at 952. Rule 24(a) provides that a party seeking pauper status on appeal must first file a motion in the district court, along with a supporting affidavit. Fed. R. App. P. 24(a)(1). However, Rule 24(a) also provides that if the district court certifies that an appeal would not be taken in good faith, or otherwise denies leave to appeal in forma pauperis, the prisoner must file his motion to proceed in forma pauperis in the appellate court. See Fed. R. App. P. 24(a) (4)-(5).
In this case, for the same reasons the Court denies a certificate of appealability, the Court determines that any appeal would not be taken in good faith. It is therefore CERTIFIED, pursuant to Federal Rule of Appellate Procedure 24(a), that any appeal in this matter would not be taken in good faith. Leave to appeal in forma pauperis is DENIED.
IT IS SO ORDERED.
Hill, 474 U.S. at 59.
