TALLEY v. USA

Filing 10

ENTRY Denying Motion for Relief Pursuant to 28 U.S.C. § 2255 And Denying Certificate of Appealability - The foregoing circumstances show that Ms. Talley is not entitled to relief pursuant to 28 U.S.C. § 2255. The motion for relief pursu ant to § 2255 is therefore denied. Judgment consistent with this Entry shall now issue. This Entry shall also be entered on the docket in the underlying criminal action, No. 2:15-cr-00007-JMS-CMM-4. The Court therefore denies a certificate of appealability (SEE ENTRY). Copy sent to Petitioner via US Mail. Signed by Judge Jane Magnus-Stinson on 6/5/2017.(DW)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION

THRESA A. TALLEY,
Petitioner,
v.
USA,
Respondent.

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No. 2:16-cv-00375-JMS-DKL

Entry Denying Motion for Relief Pursuant to 28 U.S.C. § 2255
And Denying Certificate of Appealability
Petitioner Thresa Talley’s motion for relief pursuant to 28 U.S.C. § 2255 must be denied
and the action dismissed with prejudice for the reasons set forth below. In addition, the Court
finds that a certificate of appealability should not issue.
I. The § 2255 Motion
Background
On April 7, 2015, Ms. Talley was charged in an eleven-count Indictment in No. 2:15-cr00007-JMS-CMM-4. Ms. Talley signed a Petition to Enter a Plea of Guilty and Plea Agreement
pursuant to Federal Rule of Criminal Procedure 11(c)(1)(A) and (B) on January 11, 2016. See
Filing No. 350. In the Plea Agreement, Ms. Talley agreed to plead guilty of conspiracy to
distribute and possess with intent to distribute 500 grams or more of methamphetamine. The Plea
Agreement stated that Count 1 is punishable with a sentence of no less than 10 years’
imprisonment. However, the parties did not agree upon a sentence and each reserved the right to
present evidence and arguments as to the appropriate sentence.

The Court held a change of plea and sentencing hearing on June 20, 2016, during which
the Court advised Ms. Talley of her rights, concluded that there was a factual basis for the guilty
plea, accepted the Plea Agreement, and adjudged Ms. Talley guilty of Count One. The Court
sentenced Ms. Talley to 87 months’ imprisonment, followed by three years of supervised release.
On September 28, 2016, Ms. Talley filed the instant motion for post-conviction relief
pursuant to 28 U.S.C. § 2255. In her motion, she requests a sentence reduction and argues that her
counsel provided ineffective assistance in three respects. The United States responded to Ms.
Talley’s motion. Ms. Talley, however, did not reply, and the time do to so has passed.
Discussion
A motion pursuant to 28 U.S.C. § 2255 is the presumptive means by which a federal
prisoner can challenge her conviction or sentence. See Davis v. United States, 417 U.S. 333, 343
(1974). In her § 2255 motion, Ms. Talley raises two claims. The Court will address each in turn.
A.

Sentence Reduction

Ms. Talley requests a reduction in sentence, arguing that her “sentencing term of 120
months is far beyond the scope of reasonable[ness], fairness, [and] justice.” Filing No. 1 at 2.
Notably, she makes this argument even though the Court sentenced her to 87 months’
imprisonment, not 120 months’ imprisonment as she suggests.
The United States maintains that any request for sentencing reduction is barred by Ms.
Talley’s waiver of such claim in the Plea Agreement. Specifically, Ms. Talley agreed in the Plea
Agreement to “not contest, or seek to modify, [her] conviction or sentence or the manner in which
either was determined in any proceeding, including but not limited to, an action brought under 18
U.S.C. § 3582 or 28 U.S.C. § 2255.” Filing No. 350 at 11.

“A defendant may validly waive both [the] right to a direct appeal and [the] right to
collateral review under § 2255 as part of h[er] plea agreement.” Keller v. United States, 657 F.3d
675, 681 (7th Cir. 2011). Such waivers are upheld and enforced with limited exceptions in cases
in which (1) “the plea agreement was involuntary,” (2) “the district court relied on a
constitutionally impermissible factor (such as race),” (3) “the sentence exceeded the statutory
maximum,” or (4) the defendant claims ineffective assistance of counsel in relation to the
negotiation of the plea agreement. Id. (internal quotations omitted); see United States v. Smith,
759 F.3d 702, 706 (7th Cir. 2014). None of these exceptions apply, nor does Ms. Talley even
argue that they do. Accordingly, the United States is correct that Ms. Talley’s request for a
sentence reduction is barred by the collateral attack waiver in her Plea Agreement. 1
B.

Ineffective Assistance of Counsel

Ms. Talley argues that her counsel provided ineffective assistance in three specific ways.
These claims, unlike her request for a sentence reduction, are not barred by the collateral attack
waiver in the Plea Agreement. The United States argues that none of three claims has merit. The
Court will address each in turn, after setting forth the legal standards governing ineffectiveassistance-of-counsel claims.
“To establish constitutionally ineffective assistance of counsel, [the petitioner] must show
that (1) h[er] trial attorney’s performance ‘fell below an objective standard of reasonableness,’ and
(2) ‘but for counsel’s unprofessional errors the result of the proceeding would have been

1

During briefing in this action, Ms. Talley filed a motion in the underlying criminal action seeking
a reduction in sentence. The Court denied that motion on the same basis that it denies Ms. Talley’s
claim here—that is, she explicitly waived the right to seek a modification of her sentence in her
Plea Agreement. See No. 2:15-cv-00007-JMS-CMM, Filing No. 573.

different.’” Groves v. United States, 755 F.3d 588, 591 (7th Cir. 2014) (quoting Strickland v.
Washington, 466 U.S. 668, 688 (1984)).
First, Ms. Talley argues that her counsel “failed to object to the mandatory minimum
sentence imposed.” Filing No. 1 at 2. But as noted above, the Court ultimately sentenced Ms.
Talley to 87 months’ imprisonment—which was below the mandatory minimum—after Ms.
Talley’s counsel successfully argued that she was eligible for the so-called “safety valve,” as set
forth in 18 U.S.C. § 3553(f) and United States Sentencing Guidelines (“USSG”) § 5C1.2. In short,
Ms. Talley’s counsel successfully argued for a sentence below the mandatory minimum, and thus
could not have been ineffective for failing to do so.
Second, Ms. Talley argues that her counsel “failed to object to a two point enhancement
for maintaining a premis[]e to distribute methamphetamine.” Filing No. 1 at 2. But Ms. Talley
stipulated in the Plea Agreement that her offense level was properly increased by two levels
“because she maintained a premises for the purpose of distributing a controlled substance in
accordance with U.S.S.G. § 2D1.1(b).” Filing No. 350 at 9-10. Moreover, Ms. Talley also
stipulated in the Plea Agreement to facts supporting this enhancement—specifically, that she and
her husband “stored quantities of methamphetamine at the[ir] residence and distributed
methamphetamine to others from the residence on some occasions.” Filing No. 350 at 8. Ms.
Talley’s counsel thus had no basis to object to the enhancement at sentencing and was not
ineffective for failing to do so.
Third, Ms. Talley contends that her counsel failed to argue that she qualified for the twolevel decrease in offense level due to her minor role in the crimes. To qualify for the minor-role
reduction, a defendant must be “substantially less culpable than the average participant in the
criminal activity.” U.S.S.G. § 3B1.2. The Court specifically found during the sentencing hearing

that Ms. Talley was “participating in the promotion” of the enterprise—by, among other things,
recruiting another participant to sell methamphetamine—and in “the dealing of large quantities of
methamphetamine.” Filing No. 587 at 58. Furthermore, the Court concluded that that in Ms.
Talley’s case, “the quantities involved are . . . more significant than some of the other coDefendants.” Id. Thus, contrary to Ms. Talley’s argument, it was not deficient performance for
her counsel to fail to make an argument the Court would have rejected, nor, given that the Court
would have rejected the argument, was Ms. Talley prejudiced by any such failure.
For these reasons, none of Ms. Talley’s three ineffective-assistance-of-counsel claims has
merit. There is no basis to grant her habeas relief on any of her claims.
Denial of Hearing
An evidentiary hearing is “not required when the files and records of the case conclusively
show that the prisoner is entitled to no relief.” Lafuente v. United States, 617 F.3d 944, 946 (7th
Cir. 2010) (internal quotation omitted); see also 28 U.S.C. § 2255(b). That is the case here, and
thus a hearing is not warranted in this case.
Conclusion
The foregoing circumstances show that Ms. Talley is not entitled to relief pursuant to 28
U.S.C. § 2255. The motion for relief pursuant to § 2255 is therefore denied. Judgment consistent
with this Entry shall now issue.
This Entry shall also be entered on the docket in the underlying criminal action, No.
2:15-cr-00007-JMS-CMM-4.
II. Certificate of Appealability
Pursuant to Federal Rule of Appellate Procedure 22(b), Rule 11(a) of the Rules Governing
§ 2255 Proceedings, and 28 U.S.C. § 2253(c), the Court finds that Ms. Talley has failed to show

that reasonable jurists would find it “debatable whether the petition states a valid claim of the
denial of a constitutional right.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). The Court therefore
denies a certificate of appealability.
IT IS SO ORDERED.

Date: 6/5/2017

Distribution:
THRESA A. TALLEY
12688-028
LEXINGTON - FMC
LEXINGTON FEDERAL MEDICAL CENTER
Inmate Mail/Parcels
P.O. BOX 14500
LEXINGTON, KY 40512
Matthew J. Lasher
UNITED STATES ATTORNEY'S OFFICE
[e-mail]