Jennings v. USA
Filing
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MEMORANDUM OPINION & ORDER; 1)Mag. Judge's Report and Recommendations is ADOPTED and INCORPORATED by reference; 2)Jennings' Objections to the Report and Recommendation are OVERRULED; 3)Jennings' Motion to Vacate (2255) is DENIED; 4)A Certificate of Appealability shall not issue because Jennings has not made a substantial showing of the denial of any substantive constitutional right; 5)This habeas proceeding shall be DISMISSED and STRICKEN from the docket. Signed by Judge Danny C. Reeves on 07/25/2011.(LST)cc: COR, DEF-Jennings
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
(at Covington)
UNITED STATES OF AMERICA,
Plaintiff/Respondent,
V.
DAVID JENNINGS,
Defendant/Petitioner.
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Criminal Action No. 2: 06-79-DCR
Civil Action No. 2: 11-7157-DCR
MEMORANDUM OPINION
AND ORDER
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This matter is pending for consideration of Defendant/Petitioner David Jennings’ pro se
motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. [Record No.
90] Consistent with local practice, this matter was referred to United States Magistrate Judge
J. Gregory Wehrman for consideration pursuant to 28 U.S.C. § 636(b)(1)(B). The Magistrate
Judge filed his Report and Recommendation on May 25, 2011. [Record No. 106] Based on his
review of the record and applicable law, the magistrate judge recommended that Jennings’
motion be denied. As of the initial deadline for filing objections, neither party had filed
objections to the Report and Recommendation. As a result, on June 14, 2011, the Court adopted
the magistrate judge’s recommendation and denied Jennings’ motion. [Record No. 107]
However, Jennings shortly thereafter filed a motion to reconsider, alleging that he had never
been served a copy of Magistrate Judge Wehrman’s Report and Recommendation. [Record No.
109] The Court granted Jennings’ motion and allowed him additional time to file objections.
[Record No. 110]
On July 11, 2011, Jennings filed his objections to the Report and
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Recommendation. [Record No. 114] The Court will now make a de novo determination on
those portions of the magistrate judge’s recommendations to which Jennings objects. 28 U.S.C.
§ 636(b)(1)(c). After reviewing the record and making a de novo determination, the Court is in
agreement with the magistrate judge’s recommendation.
In 2006, Jennings pleaded guilty to two counts: (1) distributing cocaine and (2) using
property subject to forfeiture. [Record No. 19] After his first sentence was reversed on appeal,
the case was reassigned to the undersigned. [Record Nos. 57, 58] In November 2008, the Court
re-sentenced Jennings to a term of imprisonment of 120 months. [Record No. 72] While the
sentence was significantly higher than his guideline range of 37–46 months, the Sixth Circuit
affirmed. See United States v. Jennings, 407 F. App’x 20 (6th Cir. 2011). On February 3, 2011,
Jennings filed the instant Motion to Vacate pursuant to 28 U.S.C. § 2255. [Record No. 90] The
United States moved for a more definite statement [Record No. 95], the Court granted the United
States’ motion [Record No. 96], and, on March 28, 2011, Jennings filed a more complete petition
[Record No. 102].
Jennings’ objections repeatedly assert the same claim: that Jennings’ counsel was
ineffective at both sentencing and re-sentencing because he failed to file a sentencing
memorandum and adequately argue the 18 U.S.C. § 3553(a) factors. [Record No. 114, p. 5
(noting that “Defendant requested counsel Fessler to file a sentencing memorandum and raise
a number of arguments regarding his application of 18 U.S.C. § 3553(a) factors, but these
arguments went ‘unmentioned and unaddressed’”); p. 5–6 (“Defendant argues that his counsel
was ineffective when he failed to argue his requested arguments in his sentencing memorandum
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regarding application of Title 18 U.S.C. § 3553(a) factors”); p. 8 (“Finally, counsel Fessler’s
failure to file a sentencing memorandum before resentencing raising the Defendant’s requested
aplication [sic] title 18 U.S.C. § 3553(a) factors and his ignorance of the law, his
misrepresentations certainly fell below an objective standard of reasonableness under prevailing
professional norms.”); p. 10 (alleging that factors under 18 U.S.C. § 3553(a)(6) and (a)(9) — the
kinds of sentencing available and the need to avoid unwarranted sentencing disparities — went
“unmentioned and unaddressed”)]. Additionally, when giving Jennings’ objections their most
liberal construction, see Hahn v. Star Bank, 190 F.3d 708, 715 (6th Cir. 1999) (citing Haines v.
Kerner, 404 U.S. 519, 520–21 (1972)), he appears to also argue that his sentence was
substantively and procedurally unreasonable.
As an initial matter, Jennings raised the reasonableness of his sentence on direct appeal
and lost. See Jennings, 407 F. App’x at 21–22. The Sixth Circuit concluded that Jennings’
sentence was neither procedurally nor substantively unreasonable. Id. The court explained:
Also unavailing is Jennings’ contention that the district court failed to explain its
variance from the guidelines. At the hearing, the court thoroughly explained its
reasons, noting (1) “the seriousness of the offense”—“drug-trafficking . . . for a
number of years,” (2) the need “to promote respect for the law” because “the
sentences that have been imposed previously for [Jennings’] drug activities have
not deterred him from criminal conduct,” and (3) the court’s obligation “to
provide for a just punishment” and “to protect the public” from Jennings’ future
crimes given his history of recidivism. R.81 at 13-14.
....
Jennings’ final objection—that his sentence is substantively unreasonable—fails
in light of the legitimate grounds given for this 120-month sentence and in light
of the considerable discretion given district courts in fashioning a sentence. See
Gall v. United States, 552 U.S. 38, 56, 128 S. Ct. 586, 169 L. Ed. 2d 445 (2007).
Case law requires us to consider the extent of a variance—here, roughly three
times the guidelines range—in relation to the reasons given for it. See id. at 47;
United States v. Grossman, 513 F.3d 592, 596 (6th Cir. 2008). Jennings, however,
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offers no reason why, based on all of the § 3553(a) factors, his ten-year sentence
is too long. See United States v. Vowell, 516 F.3d 503, 510-11 (6th Cir. 2008);
United States v. Jackson, 466 F.3d 537, 540 (6th Cir. 2007). Nor can we find one
ourselves. . . . The court did not abuse its discretion in imposing this sentence.
Id. (alteration in original). Arguments that were previously raised on direct appeal may not be
relitigated in a § 2255 motion absent exceptional circumstances. DuPont v. United States, 76
F.3d 108, 110 (6th Cir. 1996); see also Giraldo v. United States, 54 F.3d 776 (6th Cir. 1995) (“It
is well settled that a § 2255 motion may not be employed to relitigate an issue that was raised
and considered on appeal absent highly exceptional circumstances, such as an intervening
change in the law.”). No such circumstances exist in this case. Jennings’ arguments concerning
the reasonableness of his sentence are procedurally barred.
To establish ineffective assistance of counsel Jennings must demonstrate, as established
by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), two essential elements:
(1) his attorney’s performance was deficient, i.e., below the standard of competence demanded
of attorneys in criminal cases; and (2) his attorney’s deficient performance prejudiced the
defense, i.e. deprived the defendant of a fair trial rendering the outcome of the trial unreliable.
Id. at 687–88. Jennings has failed to meet the second element — he has not demonstrated any
prejudice as a result of his counsel’s performance.
First, failing to file a sentencing memorandum is not, as Jennings argues, a “per se
violation of the Sixth Amendment.” [Record No. 114, pp. 8–9] Numerous courts, both within
this circuit and outside, have held that counsel’s performance was not inadequate when he or she
failed to file a sentencing memorandum. See, e.g., United States v. Mack, 219 F. App’x 456,
462–64 (6th Cir. 2007) (denying habeas petition despite fact that counsel “failed to file a
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sentencing memorandum arguing how the 18 U.S.C. § 3553(a) factors should have been
analyzed and applied”); Reid v. United States, No. 10-583, 2010 U.S. Dist. LEXIS 100253, at
*31 (E.D. Mo. Sept. 23, 2010) (“The failure to file a sentencing memorandum is not, in and of
itself, ineffective assistance of counsel.”); United States v. Brito, 2009 U.S. Dist. LEXIS 108485,
at *15–16 (S.D. Tex. Nov. 20, 2009) (rejecting argument that “failure to file a sentencing
memorandum is per se ineffective assistance” and stating that “[t]here is no requirement before
this Court . . . that a defendant file a written sentencing memorandum prior to sentencing”);
United States v. Gomez, 100 F. Supp. 2d 1038, 1045 (D.S.D. 2000) (failure to file sentencing
memorandum is not ineffective assistance of counsel).
Second, Jennings does not identify specific information his counsel should have brought
to light that would have altered the Court’s conclusion. See Davis v. United States, No. 08-967,
2009 U.S. Dist. LEXIS 54453, at * (W.D. Mich. June 25, 2009) (denying claim for ineffective
assistance when petitioner “fail[ed] to identify mitigating factors he contend[ed] should have
been presented” at sentencing). “[C]onclusory allegations of ineffective assistance of counsel
do not raise a constitutional issue in a federal habeas proceeding.” Id. (quoting Miller v.
Johnson, 200 F.3d 274, 282 (5th Cir. 2000)). At best, Jennings vaguely mentions two specific
factors — the kinds of sentencing available and the need to avoid unwarranted sentencing
disparities — that he feels should have been addressed. [Record No. 114, p. 10] The Court
specifically addressed the need to prevent sentencing disparities in its explanation of the
sentence. [See Record No. 81, p. 14–15 (“Another important factor for the Court to consider is
the need to avoid unwarranted sentencing disparities among defendants that have been found
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guilty of similar conduct.”)] As to the other factor — the types of sentences available —
Jennings makes no argument that the Court was unaware of the types of sentences available, nor
that any alternative form of sentence would have been appropriate in his case. “[D]istrict courts
need not mechanically discuss every § 3553(a) factor at sentencing.” United States v. Wimbley,
349 F. App’x 54, 57 (6th Cir. 2009); see also United States v. Williams, 436 F.3d 706, 708--09
(6th Cir. 2006) (“[T]his court has never required the ritual incantation of the factors to affirm a
sentence.”). Thus, by failing to point to specific evidence that was not brought to the Court’s
attention, Jennings has failed to show prejudice resulting from his attorney’s conduct (even if
it was deficient — which the Court has not said it was).
Finally, the record shows that the Court adequately considered the § 3553(a) factors in
announcing its sentence. [See Record No. 81, pp. 13–16] The Court specifically mentioned a
number of factors that informed its decision: the seriousness of the offense, deterrence, need to
protect the public, the need to promote respect for the law, to provide for a just punishment, and
to avoid unwarranted sentencing disparities. [Id., pp. 13, 14] In light of such comprehensive
consideration of the sentencing factors, Jennings has not shown that his counsel’s failure to bring
any individual factor to the Court’s attention prejudiced his defense.
In conclusion, Jennings has failed to show that his counsel was ineffective. Jennings
continues to believe that his 120-month sentence was both procedurally and substantially flawed,
but both this Court and the Sixth Circuit have found otherwise. Nothing his counsel could have
done could change that reality. Therefore, Jennings has failed to meet his burden of proving
inadequate assistance of counsel and his § 2255 motion will be denied. Further, Jennings has
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not shown that a Certificate of Appealability should issue.1 Accordingly, it is hereby
ORDERED as follows:
1.
The Magistrate Judge’s Report and Recommendation [Record No. 106] is
ADOPTED and INCORPORATED by reference.
2.
Jennings’ Objections to the Report and Recommendation [Record No. 114] are
OVERRULED.
3.
Jennings’ Motion to Vacate his sentence, pursuant to 28 U.S.C. § 2255, [Record
No. 90] is DENIED.
4.
A Certificate of Appealability shall not issue because Jennings has not made a
substantial showing of the denial of any substantive constitutional right;
5.
This habeas proceeding shall be DISMISSED and STRICKEN from the docket.
This 25th day of July, 2011.
1
A Certificate of Appealability may be issued “only if the applicant has made a substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make the requisite “substantial showing
of the denial of a constitutional right” under 28 U.S.C. § 2253(c)(2), “a petitioner who has been denied relief
in a district court ‘must demonstrate that the issues are debatable among jurists of reason; that a court could
resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to
proceed further.’” Lozada v. Deeds, 498 U.S. 430, 432 (1991) (emphasis and brackets in original)
(quoting Barefoot v. Estelle, 463 U.S. 880, 893, n.4 (1983)). In the present case, Jennings has not made
a substantial showing of a denial of a constitutional right. Likewise, he has not demonstrated that the
issues he now seeks to raise are debatable among jurists of reason or that the questions are adequate to
deserve encouragement to proceed further.
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