GREATHOUSE v. USA

Filing 19

ENTRY Denying in Part Motion for Relief Pursuant to 28 U.S.C. § 2255 and Appointing Counsel for an Evidentiary Hearing. IFCD shall enter an appearance within 7 days of this Entry. (copies mailed to Petitioner Greathouse and FCD). Signed by Judge Richard L. Young on 11/6/2015.(TMD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
EVANSVILLE DIVISION
ROGER A. GREATHOUSE, JR.,
Petitioner,
vs.
UNITED STATES OF AMERICA.

)
)
)
)
)
)

Case No. 3:14-cv-59-RLY-WGH

Entry Denying in Part Motion for Relief Pursuant to 28 U.S.C. § 2255 and
Appointing Counsel for an Evidentiary Hearing
For the reasons explained in this Entry, the motion of Roger A. Greathouse, Jr. (“Mr.
Greathouse”) for relief pursuant to 28 U.S.C. § 2255 is denied as to one claim and taken under
advisement as to two other claims. An evidentiary hearing will be set in a separate Entry to
facilitate the resolution of the two claims not resolved in this Entry.
I. The § 2255 Motion
A. Background
On December 14, 2011, Mr. Greathouse was charged in a one-count Indictment in No.
3:11-cr-00054-RLY-WGH-1. The Indictment charged Mr. Greathouse with unlawful possession
of a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1).
On September 19, 2012, Mr. Greathouse filed a Petition to Enter a Plea of Guilty. In the
Petition, Mr. Greathouse represented to the court that he received a copy of the Indictment; read
and discussed it with his attorney; told his attorney the facts and surrounding circumstances
concerning the matters mentioned in the Indictment; his attorney was fully informed of the facts
and circumstances of this case; his attorney informed, counseled and advised him as to the nature
and cause of every accusation and possible defenses in this case; his attorney advised him of the
possible punishment; he believed his attorney had done all that anyone could do to counsel and

assist him; he understood the proceedings in his case; he made no claim of innocence; he declared
that his plea of guilty was offered freely, voluntarily, and of his own accord; and his attorney
explained to him and he believes and understands the statements set forth in the Indictment, in this
petition, and in the certificate of counsel. No. 3:11-cr-0054-RLY-WGH-1, Dkt. 23; Petition, ¶¶ 4,
5, 6, 12, 13, 14. No written plea agreement was filed in this case.
On November 2, 2012, a change of plea hearing was conducted. The court found a factual
basis for the plea and that Mr. Greathouse was fully competent and capable of entering an informed
plea. The court accepted Mr. Greathouse’s plea and adjudged him guilty of the charge. On January
8, 2013, the court sentenced Mr. Greathouse to 110 months imprisonment and three years of
supervised release. No. 3:11-cr-0054-RLY-WGH-1, Dkt. Nos. 30-31. The judgment of conviction
was entered on January 14, 2013. Id.; Dkt. 31. On April 19, 2013, an Amended Judgment was
issued, reducing the sentence to 104 months and three years of supervised release. Dkt. 34.
On April 21, 2014, Mr. Greathouse filed a motion for post-conviction relief pursuant to 28
U.S.C. § 2255. He signed the section 2255 motion on April 18, 2014.
B. Discussion
A motion pursuant to 28 U.S.C. § 2255 is the presumptive means by which a federal
prisoner can challenge his conviction or sentence. See Davis v. United States, 417 U.S. 333, 343
(1974). In his § 2255 motion, Mr. Greathouse asserts that trial counsel was ineffective. He alleges
that counsel: 1) advised him to reject a very favorable plea agreement in favor of an “open plea”
without investigating the facts and discussing them first; 2) failed to file a timely appeal, despite
being instructed to do so by Mr. Greathouse; and 3) failed to object at sentencing to two clearly
erroneous applications of the Sentencing Guidelines which increased the offense level by 1 point

and his criminal history points by 1 point. The United States argues that Mr. Greathouse’s claims
lack merit.
The right to effective assistance of counsel is violated when the performance of counsel
falls below an objective standard of reasonable professional conduct and prejudices the defense.
Yarborough v. Gentry, 540 U.S. 1, 5 (2003) (citing Strickland v. Washington, 466 U.S. 668, 687
(1984)). For Mr. Greathouse to establish that his “counsel’s assistance was so defective as to
require reversal” of his conviction, he must make two showings: (1) deficient performance that (2)
prejudiced his defense. Strickland, 466 U.S. at 687. “To reflect the wide range of competent legal
strategies and to avoid the pitfalls of review in hindsight, our review of an attorney’s performance
is highly deferential and reflects a strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance.” Groves v. United States, 755 F.3d 588, 591 (7th Cir.
2014) (internal quotation omitted).
To establish prejudice, a petitioner must “show that there is a reasonable probability that,
but for counsel’s errors, the result of the proceedings would have been different, such that the
proceedings were fundamentally unfair or unreliable.” Id. (internal quotation omitted). If a
petitioner cannot establish one of the Strickland prongs, the Court need not consider the other. Id.
1. Dismissed Claim
Mr. Greathouse claims that counsel told him that the government had offered him a binding
84-month plea agreement, however, counsel did not discuss it with him. His attorney, Mr. Warrum,
states in his sworn statement that although he tried to convince the government to enter into a
binding plea agreement pursuant to Rule 11(c)(1)(C), no such plea was ever extended. “[T]he
successful negotiation of a plea agreement involves factors beyond the control of counsel,
including the cooperation of his client…as well as the cooperation of the prosecutor, who has no

obligation to offer such an agreement.” United States v. Hall, 212 F.3d 1016, 1022 (7th Cir. 2000).
“[T]he government is not bound to discuss, much less enter into, a plea agreement ….” Id. The
government offered a nonbinding plea agreement pursuant to Rule 11(c)(1)(A), but after
discussing the terms with his attorney, Mr. Greathouse rejected that plea agreement. Mr. Warrum
agrees that if the government had offered a binding plea agreement for 84 months, he would have
strongly recommended that Mr. Greathouse accept it, however, that opportunity never existed. No
deficient performance has been identified in relation to any plea agreement. The motion to vacate
is denied with respect to this claim. This claim need not be addressed at an evidentiary hearing
because “the motion and the files and records of the case conclusively show that the prisoner is
entitled to no relief” on this claim. 28 U.S.C. § 2255(b).
2. Claims That Should Be Addressed at an Evidentiary Hearing
Whether Counsel was Instructed to File a Notice of Appeal
The plea agreement in this case was not reduced to writing nor did it contain a waiver of
appellate rights. Mr. Greathouse states under penalty of perjury in his motion to vacate that
approximately a week after sentencing, when he met with his attorney, Mr. Warrum, at the
Henderson County Detention Center, Mr. Warrum told him that they could file an appeal. Mr.
Greathouse states that he told Mr. Warrum, “I definitely want to file an appeal.” He states that Mr.
Warrum told him that he would get back with him. Motion to Vacate, 3:14-cv-59-RLY-WGH,
Dkt. 1, p. 15. Mr. Greathouse states that he attempted to call Mr. Warrum numerous times after
that conversation, but he could not reach him.
Mr. Warrum has submitted a sworn affidavit stating that after he received the judgment
issued on January 14, 2013, in this case,
“I met with the Defendant at the Henderson County Detention Center. During this
meeting the Defendant used a quote I used during the Sentencing Hearing, “It is

what it is.” The Defendant expressed his gratitude for arguments presented in court.
The Defendant specifically stated that he did not wish to appeal, but rather, his
intent was to go to the Bureau of Prisons and serve his sentence so he could return
home.”
Affidavit of Jake Warrum, 3:14-cv-59-RLY-WGH, Dkt. 11-1, p.1.
This claim cannot be resolved on the basis of conflicting sworn statements without an
evidentiary hearing. See Dowell v. United States, 694 F.3d 898, 903-04 (7th Cir. 2012) (“In light
of the conflicting accounts, whether Dowell asked his counsel to file a notice of appeal is a factual
question for the district court to resolve on remand…..”).
Failure to Object at Sentencing 1
Mr. Greathouse asserts that his Adjusted Offense Level should have been 29 instead of 30.
See 2011 Guidelines Manual, 2K2.1(b)(4) (The cumulative offense level determined from the
application of subsections (b)(1) through (b)(4) may not exceed level 29, except if subsection
(b)(3)(A) applies.”). He argues that this would have led to a sentencing range of 92-115 months
instead of 100-120 months. The government does not assert that this theory is inaccurate. Rather,
it states that “former trial counsel notes that even if Greathouse is correct, his sentence of 104
months still fell within the guideline range….” 2 Government Response, 3:14-cv-59-RLY-WGH,

1

Mr. Greathouse also argues that counsel failed to object to the criminal history point for a July 2011
misdemeanor conviction for “unregistered timber buyer.” Mr. Greathouse acknowledges that this would
not have changed his Criminal History Category of IV. Attorney Warrum states that he considered and
discussed this argument with Mr. Greathouse on multiple occasions. Mr. Warrum researched the issue and
found no authority indicating that a conviction for an unregistered timber buyer was a fish and game
violation. Counsel did not ignore Mr. Greathouse’s desire. Rather counsel considered it and rejected it on
sound legal grounds. No error nor prejudice has been shown under these circumstances. This component of
Mr. Greathouse’s ineffective assistance of counsel in sentencing claim is denied and shall not be discussed
at the evidentiary hearing.
2

The original sentence was 110 months. It was reduced to 104 months April 19, 2013, to take into
account time served in the jail post Indictment.

Dkt. 11, p. 4. Sentencing at the midpoint of the alleged correct guideline range, however, would
have resulted in a sentence between 103 and 104 months.
The government also argues that the technical application of the guidelines does not give
rise to a constitutional issue. Government Response, 3:14-cv-59-RLY-WGH, Dkt. 11, p. 4 (citing
United States v. Vaughn, 955 F.2d 367, 368 (7th Cir. 1992). Vaughn does not apply to these
circumstances, however, because the constitutional issue here is one of ineffective assistance of
counsel. This claim is related to the failure to appeal claim because the question of prejudice may
involve whether or not there was a non-frivolous claim to assert on appeal. If it is likely that the
court would have decided on a lower sentence if the adjusted offense level was 29 instead of 30,
that will bear on the issue as to whether a reasonable defendant would have asked to file a notice
of appeal.
II. Appointment of Counsel
The Indiana Federal Community Defender (“IFCD”) is appointed pursuant to 28 U.S.C. §
2255(g) and 18 U.S.C. § 3006A to represent Mr. Greathouse for the purpose of presenting the two
claims referenced above. The IFCD or such other counsel as the IFCD may designate shall enter
an appearance on behalf of Mr. Greathouse within seven (7) days of this Entry. The IFCD shall
contact Mr. Greathouse and opposing counsel and shall take the steps necessary to represent Mr.
Greathouse at an evidentiary hearing. The hearing will be set in a separate entry.
No partial final judgment shall issue at this time as to the claim resolved in this Entry.
IT IS SO ORDERED.

Date: __________________
11/06/2015

__________________________________
RICHARD L. YOUNG, CHIEF JUDGE
United States District Court
Southern District of Indiana

Distribution:
Electronically registered counsel
Roger A. Greathouse, Jr.
10716-028
Manchester FIC
Inmate Mail/Parcels
P. O. Box 4000
Manchester, KY 40962
Monica Foster, Chief Federal Defender
Indiana Federal Community Defenders
111 Monument Circle, Suite 2150
Indianapolis, IN 46204