Nunley v. USA

Filing 1

MEMORANDUM OPINIOIN AND ORDER; 1)The 409 Report and Recommendations as to Vincent Nunley (10) is ADOPTED in full and INCORPORATED by reference; 2)Def, Vincent Nunley's 412 objections to the Report and Recommendation are OV ERRULED; 3)Def, Vincent Nunley's 388 Motion to Vacate (2255) is DENIED; 4)A Certificate of Appealability shall not issue w/respect to any matter or claim raised in this proceeding; 5)A judgment in favor of he U.S. shall issue this date. Signed by Judge Danny C. Reeves on 1/8/2016.(LST)cc: COR, Vincent Nunley via U.S. Mail

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
(at Covington)
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UNITED STATES OF AMERICA,
Plaintiff,
V.
VINCENT NUNLEY,
Defendant.
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Criminal Action No. 2: 11-069-DCR
and
Civil Action No. 2: 15-7397-DCR

MEMORANDUM OPINION
AND ORDER

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Defendant Vincent Nunley pled guilty to conspiring to distribute more than five
kilograms of cocaine in violation of 21 U.S.C. § 846. [Record Nos. 226, 317, 318] He was
sentenced to a term of imprisonment of 252 months, followed by a ten-year term of
supervised release. [Record No. 319] The United States Court of Appeals for the Sixth
Circuit affirmed Nunley’s sentence. [Record No. 358] The Judgment included a monetary
forfeiture which is the subject of Nunley’s current challenge to his sentence under 28 U.S.C.
§ 2255. [Record Nos. 319, p. 6; 388]
Consistent with local practice, Nunley’s motion was referred to a United States
Magistrate Judge for review pursuant to 28 U.S.C. § 636(b)(1)(B). United States Magistrate
Judge Robert E. Wier has recommended that Nunley’s motion for habeas relief under 28
U.S.C. § 2255 be denied and that no Certificate of Appealability be issued. [Record No.
409] Nunley filed timely objections. [Record No. 412] After conducting a de novo review
of the portions of the report to which Nunley objects, the Court will adopt the Magistrate
Judge’s Recommended Disposition and deny Nunley’s motion.

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I.
In seeking relief under 28 U.S.C. § 2255, a defendant may assert that: the sentence
was imposed in violation of the United States Constitution or federal law; the court lacked
jurisdiction; his or her sentence exceeded the maximum penalty authorized by law; or the
sentence is otherwise subject to collateral attack. To prevail on a claim of constitutional
error, a defendant must establish an error of constitutional magnitude which had a substantial
and injurious effect or impact on the proceedings. Watson v. United States, 165 F.3d 486,
488 (6th Cir. 1999) (citations omitted).

Conversely, to prevail on a claim of non-

constitutional error, the defendant must show a “‘fundamental defect which inherently results
in a complete miscarriage of justice, or, an error so egregious that it amounts to a violation of
due process.’” Id. (quoting United States v. Ferguson, 918 F. 3d 627, 630 (6th Cir. 1990)).
A district court must make a de novo determination of those portions of a magistrate
judge’s recommendation to which an objection is made.

28 U.S.C. § 636(b)(1)(C).

However, “[i]t does not appear that Congress intended to require district court review of a
magistrate’s factual or legal conclusions, under a de novo or any other standard, when neither
party objects to those findings.” Thomas v. Arn, 474 U.S. 140, 150 (1985).
II.
Nunley makes eight related arguments for relief centered on the forfeiture of a
particular parcel of real property located at 1600 Pelham Place. He contends that: (i) the
government breached terms of the parties’ Plea Agreement by forfeiting 1600 Pelham Place
and a related ineffective assistance of counsel (“IAC”) claim; (ii) the government breached
the Plea Agreement by stating that any forfeiture of 1600 Pelham Place would occur in a
separate proceeding and a related IAC claim; (iii) the government failed to follow 21 U.S.C.
-2-

§ 853(p) and Fed. R. Crim. P. 32.2 and a related IAC claim; (iv) his attorneys were
ineffective because they did not argue that the government breached the Plea Agreement to
the district court or on appeal; (v) § 853 does not authorize joint and several liability between
co-defendants and a related IAC claim; (vi) “proceeds” were improperly defined under § 853
and a related IAC claim; (vii) counsel erred by stating that his property was subject to direct
forfeiture; and (viii) his guilty plea was not knowing and voluntary. These arguments will be
addressed in the order that the Magistrate Judge considered them in his report.
A.

Nunley’s Guilty Plea Was Knowing and Voluntary. (Argument No. 8)

Nunley argues that his guilty plea was not knowing and voluntary because it was
induced by false promises based on the government’s statement at the change of plea hearing
that “it’s not [Nunley’s] responsibility to raise a million dollars – we have to try and find that
money to satisfy [the money judgment].” [Record No. 331, p. 15] Nunley argues that the
forfeiture of 1600 Pelham Place and the Bureau of Prisons’ (“BOP”) requirement that he pay
the monetary judgment as part of the inmate financial responsibility program breach this
“promise.” [See Record No. 388-1, p. 13.] However, the record directly refutes Nunley’s
allegations that he was promised that these avenues would not be available for satisfying the
money judgment. In advancing this claim, Nunley takes one isolated statement out of
context and ignores the remaining discussion on the forfeiture issue.1
The statement that, “it’s not [Nunley’s] responsibility to raise a million dollars – we
have to try and find that money to satisfy [the money judgment,]” was made by the
1

Nunley did not rely on this statement by the government. After this statement was made
by counsel for the United States, the Court asked if the government’s statements answered
Nunley’s questions, to which he responded, “[n]o, because what I heard was losing my house
and I worked hard for that.” [Record No. 331, p. 15] The parties and the Court further discussed
forfeiture and the monetary judgment before Nunley agreed to proceed with his guilty plea.

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prosecuting attorney in an effort to explain the monetary portion of the judgment. [Record
No. 331, p. 15] Counsel explained that, “the money judgment is not going to be a condition
of supervised release . . . . Nunley’s not going to face revocation of supervised release at
some future date just because the money judgment may be outstanding at some point in
time.” [Record No. 331, p. 15] When considered in context of the discussion at the change
of plea hearing, it becomes clear that this statement was not a broken or false promise.
Instead, the government has acted consistently with this and other related statements.
Nunley argues in his objections that his plea was “knowing and voluntary up front”
but that it was induced on false promises that the property would not be forfeited directly in
the criminal proceeding and he would not need to come up with a million dollars. [Record
No. 412, p. 4] But again, Nunley’s assertions are directly contradicted by the record. The
transcript establishes that the Assistant United States Attorney (“AUSA”), Nunley’s counsel,
and the undersigned clarified Nunley’s questions about forfeiture at the time of his guilty
plea. As the Magistrate Judge concluded, “the prosecutor, at most, meant that Nunley would
not be revoked and imprisoned for failing to satisfy the money judgment, not that the United
States could not seek money judgment satisfaction through any available means.” [Record
No. 409, p. 5] In fact, immediately after the AUSA’s statement, the Court explained that
“the United States, if it’s not able to satisfy the amount of the forfeiture, may seek to forfeit
any other assets, real property or personal property that the defendant owns or has an interest
in . . . it is a very likely possibility that if you do have a house . . . and you’re not able to
satisfy the money judgment, the United States may seek forfeiture of that property.” [Record
No. 331, p. 16] Following this explanation and further, consistent statements by his counsel,

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Nunley acknowledged that he wished to proceed with his guilty plea. [Record No. 331, p.
17]
Further, Nunley admitted that the written Plea Agreement was the only agreement he
had with the government. [Record Nos. 331, pp. 18, 25; 317, ¶ 11] In the Plea Agreement,
Nunley acknowledged that the understood it terms, it was explained to him, and he was
entering into it voluntarily. [Record No. 317, ¶ 13] As the Magistrate Judge explained, the
terms of Nunley’s Plea Agreement and Nunley’s sworn statements made during the change
of plea hearing, establish that the guilty plea was knowing and voluntary. [See also Record
No. 331, p. 36.] Nunley stated at the sentencing hearing that he felt that he had been “duped”
into signing the Plea Agreement. [Record No. 330, p. 11] In response, the Court noted that,
[w]hile the defendant, again, blames others, claims that he was duped into
signing the plea agreement, this Court has already determined that his entry
into the plea agreement was voluntary, it was also knowing, and based upon
the facts that establish this defendant was engaged in drug trafficking activities
as alleged in the superseding indictment in the case.
[Record No. 330, pp. 20–21]
While the Sixth Circuit did not directly address Nunley’s current arguments, it found
“[a]s for Nunley’s claim that the court should have imposed a more lenient sentence because
the Government ‘duped him,’ the court did not abuse its discretion by rejecting this on the
facts or by considering the argument as evidence of Nunley’s failure to accept
responsibility.” United States v. Nunley, 559 F. App’x 470, 475 (6th Cir. 2014).
B. The Government Did Not Breach the Plea Agreement. (Arguments 1 and 2)
Nunley’s arguments that the government breached his Plea Agreement “by forfeiting
property it agreed not to forfeit” and that counsel was ineffective by not raising the argument
earlier or on appeal also fail on their merits. “The Government’s failure to adhere to its plea
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agreement in good faith has been held to implicate a defendant’s due process rights.” Elzy v.
United States, 205 F.3d 882, 884 (6th Cir. 2000). “Plea agreements are contractual in nature,
so we use traditional contract law principles in interpreting and enforcing them.” United
States v. Bowman, 634 F.3d 357, 360 (6th Cir. 2011). However, due to “plea agreements’
constitutional and supervisory implications,” courts “hold the government to a greater degree
of responsibility than the defendant” and any ambiguities are construed against the
government. Id. (quoting United States v. Johnson, 979 F.2d 396, 399 (6th Cir. 1992)). In
construing written plea agreements, the court must look to “‘what the defendant reasonably
understood’ when he entered into the agreement” to determine whether a plea agreement has
been broken. United States v. Fields, 763 F.3d 443, 453 (6th Cir. 2014) (quoting United
States v. Herrera, 928 F.2d 769, 771 (6th Cir. 1991)).
“The ‘most persuasive evidence’ of what a defendant ‘reasonably appreciated as his
bargain is found in the plain language of the court-approved agreement.’” Fields, 763 F.3d
at 453 (quoting United States v. Phibbs, 999 F.2d 1053, 1081 (6th Cir. 1993)). Nunley’s
Plea Agreement provides:
The Defendant will forfeit to the United States all interest in the property listed
in the forfeiture allegation of the Superseding Indictment and will execute any
documents necessary for this forfeiture. The only exception to this forfeiture is
that the United States is amending its request for a money judgment to the
amount of $1,230,000 and withdrawing its request to forfeit real estate located
at 1600 Pelham Place, Cincinnati, Ohio 45237. The Defendant understands
that the United States reserves the right to attempt to enforce the money
judgment against all assets, including this real estate.
[Record No. 317, ¶ 8 (emphasis added)]
Nunley states that he refused to plead guilty if the property was included as part of the
direct forfeiture; however, he acknowledged in the Plea Agreement that the property was still
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subject to forfeiture to satisfy the monetary judgment against him. By the terms of the Plea
Agreement and in-court discussions about its terms, Nunley agreed and understood that the
real property located at 1600 Pelham Place was subject to forfeiture. Nunley, 559 F. App’x
at 471 (“[T]he plea agreement made clear that Nunley ‘underst[ood] that the United States
reserve[d] the right to attempt to enforce the money judgment against all assets, including
this real estate.’ The understanding that the real estate was not separately forfeited but could
be used toward the money judgment was reiterated during plea proceedings.”). Further, and
as explained in more detail by the Magistrate Judge, the fate of the Pelham property was
addressed numerous times during the extended change of plea colloquy and during the
sentencing hearing. [See Record Nos. 409, pp. 10–12; 331, pp. 13–17; 330, pp. 7–8, 13.]
Nunley points to a statement referencing a “separate proceeding” and focuses on this
isolated comment in support of his contention that he understood there would be a separate
action if the property was going to be forfeited. [See Record No. 388-1, pp. 4–5, 388, p. 5.]
But the record does not support this argument.

First, Nunley confirmed that the Plea

Agreement was the only agreement he had with the government. [Record No. 331, p. 18]
Next, he admitted that there were no additional agreements or “outside statements” or threats
that caused him to sign the Plea Agreement.

[Record Nos. 317; 331, pp. 18, 25]

Additionally, and as more fully outlined by the Magistrate Judge, the AUSA’s statement that
there would be a “separate proceeding” is, at most, ambiguous and certainly does not rise to
the level of a promise or an amendment to the Plea Agreement.2 [Record No. 409, p. 14]

2

The AUSA stated:
That’s exactly right. There’s a piece of real estate that was indicted. We agreed
we’re going to drop a specific claim for that real estate. However, as the Court

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Counsel’s statement may have referred to a lien attached to the property, it may have referred
to Nunley’s ability to contest the forfeiture, or it could have related to the ancillary hearing
required if a third party asserts an interest in the property. [Id.]; see Fed. R. Crim. P. 32.2.
Notwithstanding this ambiguity, the record forecloses Nunley’s assertions that: (i) “the
[p]rosecutor state[d] that any forfeiture would be in a separate proceeding in open court on
the record;” (ii) the plea agreement “drop[ped] the forfeiture;” (iii) the AUSA gave his “word
in open court on the record that if the property was ever subject to forfeiture that would be a
separate proceeding where Nunley could contest the forfeiture under applicable rules;” and
(iv) “should the [g]overnment ever try to go after . . . 1600 Pelham Place that would occur in
a . . . separate civil forfeiture action where he could be present and have a change to argue
against the legality of the property forfeiture.” [Record No. 412, p. 9] Based on the record,
Nunley could not have “reasonably understood” that any of these promises were made by the
government in the Plea Agreement or otherwise.
C. 21 U.S.C. § 853(p) and Fed. R. Crim. P. 32.2
1. These Claims are Procedurally Defaulted.
Nunley argues that the government did not comply with 21 U.S.C. § 853(p) and Fed.
R. Crim. P. 32.2 in the forfeiture process and that he cannot be held jointly and severally
liable with a co-defendant for the monetary judgment. The Magistrate Judge correctly
concluded that Nunley waived his ability to make these arguments through a collateral
attack. [Record No. 409, pp. 7–8] Further, these claims should have been brought on direct
has already indicated, in an effort to enforce the money judgment, what we’ll do
is find assets, and there might be a lien attached to this. If there is, Mr. Nunley
can deal with that. That’s a separate proceeding, and we can deal with that then.
[Record No. 331, p. 13] It is not clear to what “[t]hat” refers.

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appeal. Because they were not brought at that time, they are procedurally defaulted. See
Regaldo v. United States, 334 F.3d 520, 528 (6th Cir. 2003). To bring the claim at this time,
Nunley must show either “that (1) he had good cause for his failure to raise such arguments
and he would suffer prejudice if unable to proceed, or (2) he is actually innocent.” Id.
Nunley has not met his burden with respect to either element.
Nunley argues in his objections that any procedural default was caused by his
counsel’s failure to raise the issue. However, good cause for his failure to raise these
arguments on appeal must be attributed to “some objective factor external to the defense”
rather than an error by counsel. Murray v. Carrier, 477 U.S. 478, 488 (1986). It may be
“satisfied by a showing that the factual or legal basis for a claim was not reasonably available
to counsel.” Ambrose v. Booker, 684 F. 3d 638, 645 (6th Cir. 2012) (quoting Murray, 477
U.S. at 488). “Ineffective assistance of counsel constitutes ‘cause’ to excuse a default only if
it is ‘so ineffective as to violate the Federal Constitution,’ Edwards v. Carpenter, 529 U.S.
446, 451 (2000)—i.e., it meets Strickland’s ineffective standard.”

Jones v. Bell, 801 F.3d

556, 562 (6th Cir. 2015) (citing Byrd v. Collins, 209 F.3d 486, 519 (6th Cir. 2000)). As
discussed below, this claim fails on its merits and counsel cannot be ineffective for failing to
raise a meritless claim. See Conley v. Warden Chillicothe Corr. Inst., 505 F. App’x 501, 507
(6th Cir. 2012); Mapes v. Coyle, 171 F.3d 408, 413 (6th Cir. 1999) (“[T]here can be no
constitutional deficiency in appellate counsel’s failure to raise meritless issues.”).
As fully explained by the Magistrate Judge, Nunley could have brought both of these
claims as part of his direct appeal. The preliminary judgment was final as to Nunley at the
time of the sentencing hearing. See Fed. R. Crim. P. 32.2. Where the court later amends a
forfeiture order to include additional property, the defendant may file an appeal once the
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amendment becomes final. See Fed. R. Crim. P. 32.2(b)(4)(C). But Nunley did not object
to the order of forfeiture when filed, at the sentencing hearing, or later on appeal. Similarly,
at least by the time the judgment was entered, Nunley was aware that the Court imposed joint
and several liability for the monetary judgment against him and a co-defendant. [Record No.
319, p. 6] However, he did not raise this argument on appeal. While these arguments were
procedurally defaulted, they also fail on their merits.
2. The Government Complied With 21 U.S.C. § 853(p) and Fed. R. Crim. P.
32.2. (Argument 3)
Nunley is subject to a money judgment in the amount of $1,230,000.00, representing
the gross proceeds derived from drug trafficking activities. [See Record No. 319, p. 6]
Nunley and his co-defendant James Holt are jointly and severally liable for this amount.
[Id.] Because funds to satisfy the judgment were not otherwise available, the government
identified a substitute asset—1600 Pelham Place—to be sold and applied to the judgment
amount. [Record Nos. 302, 304, 334, 336] Nunley argues that the government failed to
comply with 21 U.S.C. § 853(p) and Fed. R. Crim. P. 32.2 during the forfeiture process. In
his objections, he argues generally that the forfeiture did not complye with these provisions
but he fails to articulate any particular deficiency by the government or violation of his due
process rights as a result. As more fully described by the Magistrate Judge, forfeiture
complied with § 853(p) and Rule 32.2 and Nunley’s arguments to the contrary are without
merit.
“A forfeiture action can take the form of a money judgment, forfeiture of specific
assets, or forfeiture of substitute assets.” United States v. Abdelsalam, 311 F. App’x 832,
847 (6th Cir. 2009) (citing United States v. Candelaria-Silva, 166 F.3d 19, 42 (1st Cir.
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1999)). Here, Nunley agreed3 that the amount of the money judgment, which meets the
requirements of § 853(a), was not available and, therefore, could not “be located upon the
exercise of due diligence” as specified by § 853(p)(1)(A). Under such circumstances, “the
court shall order the forfeiture of any other property of the defendant . . .” 21 U.S.C.
§ 853(p)(2). Substitute assets need not be tied to the criminal activity to be subject to
forfeiture. See United States v. Erpenbeck, 682 F.3d 472, 477 (6th Cir 2012) (“[S]ubstitute
property [is] untainted property that the government may seize to satisfy a forfeiture
judgment if the tainted property is unavailable.”). Thus, the Pelham Place property was
correctly forfeited as substitute property under the relevant statute.
Rule 32.2(e) sets out the procedure for forfeiture of substitute property. “On the
government’s motion, the court may at any time enter an order of forfeiture or amend an
existing order of forfeiture to include property that . . . is substitute property that qualifies for
forfeiture under an applicable statute.” Fed. R. Crim. P. 32.2(e)(1)(B). The applicable
statute authorizing the real property’s substitution is § 853(p).
The use of 1600 Pelham Place as a substitute asset was specifically contemplated by
the parties at Nunley’s change of plea and sentencing hearings. Nunley, 559 F. App’x at 471
(“The understanding that the real estate was not separately forfeited but could be used toward
the money judgment was reiterated during plea proceedings.”). The government attempted
to notify all third parties that may have had an interest in the property but these endeavors

3

Nunley admitted that he “do[es not] have a million dollars” and reiterated that fact in his
objections. [Record Nos. 331, p. 14; 412, p. 11] Additionally, Dalemonta Nunley took title to
1600 Pelham Place “after it was named in the indictment.” Nunley, 559 F. App’x at 471. The
government sought, without success, to notify third parties Dalemonta Nunley and D’Zired
Properties, LLC of the forfeiture action. [See Record No. 336]

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were unsuccessful. The Court agrees with the Magistrate Judge that the government’s
actions and relevant orders comply with § 853 and Rule 32.2 in all material respects.
3. Joint and Several Liability for Nunley and His Co-Defendant Was Proper
Under § 853. (Argument 5)
The Magistrate Judge correctly concluded that Nunley and his co-defendant are
jointly and severally liable for the gross proceeds of the drug trafficking conspiracy. Nunley
argues that the Court of Appeals for the District of Columbia’s decision in United States v.
Cano-Flores, 796 F.3d 83 (D.C. Cir. Aug. 7, 2015) (holding that a $15 billion forfeiture
assessment against Cano-Flores erroneously included amounts not obtained by Cano-Flores),
requires a different result. Id. at 91 (“[Section] 853(a)(1) . . . does not authorize imposition
of a forfeiture based on the total revenues of a conspiracy simply because they may have
been reasonably foreseeable . . . . We . . . read[] the statutory language as providing for
forfeiture only of amounts ‘obtained’ by the defendant on whom the forfeiture is imposed.”).
The Sixth Circuit has affirmed a district court’s application of joint and several
liability among coconspirators for the proceeds of a drug conspiracy, while noting that other
circuits have concluded that § 853 “mandates joint and several liability among coconspirators
for the proceeds of a drug conspiracy.” United States v. Logan, 542 F. App’x 484, 489–90
(6th Cir. 2013) (collecting cases); see also United States v. Evans, 0:13-CR-22-DLB-EBA,
Docket Entry 253 (E.D. Ky. Jan. 12, 2015). In Logan, the Sixth Circuit found that the
district court did not err by “limit[ing] the amount of proceeds attributable to a defendant to
those reasonably foreseeable to that defendant.” Id. at 499. Other circuits have applied the
“reasonably foreseeable” standard. Id. The Court agrees with the conclusion that joint and
several liability is required under § 853 and rejects the reasoning outlined in Cano-Flores.
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See United States. v. Roberts, 660 F.3d 149, 165 (2d Cir. 2011) (“[T]his mandatory liability
is joint and several among all conspirators.”); United States v. Van Nguyen, 602 F.3d 886,
904 (8th Cir. 2010); United States v. White, 116 F.3d 948, 951 (1st 1997); United States v.
Jarrett, 133 F.3d 519, 531 (7th Cir. 1998); United States v. McHan, 101 F.3d 1027, 1043
(4th Cir. 1996); United States v. Pitt, 193 F.3d 751, 765 (3d Cir. 1999). Further, CanoFlores is distinguishable on its facts. Accordingly, Nunley is properly subject to joint and
several liability under 21 U.S.C. § 853.
D. Ineffective Assistance of Counsel Claims
Nunley makes a number of arguments attacking his counsel’s representation in
relation to the substantive issues outlined above. However, these IAC arguments also fail.
Ineffective assistance of counsel is a mixed question of law and fact that is reviewed under
the test outlined in Strickland v. Washington, 466 U.S. 668 (1984). It requires a defendant to
show: (i) counsel’s performance was deficient by “[falling] below an objective standard of
reasonableness,” id. at 687–88; and (ii) that the defendant was “prejudiced” by such deficient
performance. Id. at 691–92.
To determine deficiency, the court must “conduct an objective review of [counsel’s]
performance, measured for ‘reasonableness under prevailing professional norms,’ which
includes a context-dependent consideration of the challenged conduct as seen ‘from
counsel’s perspective at the time.’” Wiggins v. Smith, 539 U.S. 510, 523 (2003) (quoting
Strickland, 466 U.S. at 688–89); Poindexter v. Mitchell, 454 F.3d 564, 577 (6th Cir. 2006).
This review requires consideration of the norms of practice as reflected in the American Bar
Association Guidelines. See Rompilla v. Beard, 545 U.S. 374, 387 (2005).

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To establish prejudice, “[t]he defendant must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different.

A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Strickland, 466 U.S. at 694. This threshold showing is less than
a preponderance of the evidence. Id. The Sixth Circuit has held “that a petitioner need not
prove by a preponderance of the evidence that the result would have been different, but
merely that there is a reasonable probability that the result would have been different.”
Skaggs v. Parker, 235 F.3d 261, 271 (6th Cir. 2000).
1. Counsel Was Not Ineffective for Failing to Argue Breach of the Plea
Agreement. (Argument 4)
As explained above and by the Magistrate Judge, the United States did not breach the
Plea Agreement. And a defendant’s attorney cannot be unconstitutionally ineffective for
failing to raise meritless objections. Mapes, 171 F.3d at 413; Walls v. Romanowski, No.
2:06-CV-14203, 2013 WL 210735, at *7 (E.D. Mich. Jan. 18, 2013) (“Counsel is not
required to raise meritless objections, and appellate counsel is not required to raise meritless
claims.”). In fact, counsel did the most he could do under the circumstances by successfully
negotiating that the property would not be directly forfeited and reducing the amount of the
monetary judgment. [See Record No. 331, p. 12.] Therefore, any argument regarding
ineffectiveness on this point would have been futile.
2. Counsel Was Not Ineffective for Failing to Argue a Proceeds vs. Profits
Distinction. (Argument 6)
Nunley argues that his attorney was ineffective for failing to argue that “proceeds”
means “profits” under § 853, United States v. Santos, 553 U.S. 507 (2008), and the rule of
lenity.

But Santos only addresses the meaning of “proceeds” in the federal money-14-

laundering statute, 18 U.S.C. § 1956(a)(1). Its holding does not apply in interpreting § 853.
See United States v. Heilman, 377 F. App’x 157, 210–12 (3rd Cir. 2010).
Nunley also criticizes the Magistrate Judge’s reliance on Heilman, 377 F. App’x at
210–12, because it is not binding on this Court. However, the Sixth Circuit has approved the
definition of “proceeds” used in Heilman and in similar cases. United States v. Logan, 542
F. App’x 484, 498 (6th Cir. 2013) (citing United States v. Olguin, 643 F.3d 384, 400 (5th
Cir. 2011); United States v. Bucci, 582 F.3d 108, 123 (1st Cir. 2009)). Thus, the Sixth
Circuit agrees that the term “proceeds” as used in 21 U.S.C. § 853(a)(1) refers to gross
proceeds, rather than net profits. Id. at 498.
For similar reasons, as explained in Heilman and summarized by the Magistrate
Judge, the rule of lenity does not apply to § 853. The rule essentially provides that, “[w]hen
ambiguity clouds the meaning of a criminal statute, ‘the tie must go to the defendant.’”
United States v. Ford, 560 F.3d 420, 425 (6th Cir. 2009) (quoting Santos, 553 U.S. at 513).
However, § 853 is not a substantive criminal statute that renders conduct illegal, but a
criminal forfeiture provision. See Heilman, 377 F. App’x at 211.
This argument fails on their merits and, consequently, counsel did not err by not
raising this groundless claim. See Mapes, 171 F.3d at 427.
3. Counsel Was Not Ineffective by Stating That 1600 Pelham Place Was
Subject to Direct Forfeiture. (Argument 7)
Nunley argues that his attorney was ineffective by informing him that 1600 Pelham
Place was subject to direct forfeiture under § 853. In his objections, Nunley argues that his
property was not subject to direct forfeiture and that it would not have been subject to
forfeiture “until counsel stipulated to a money judgment.” [Record No. 412, p. 20] He
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contends that his counsel was ineffective for agreeing to the monetary judgment rather than
letting the government pursue direct forfeiture. In his objections, Nunley argues that the
reduction of the monetary forfeiture “means nothing” and that the property did not have any
connection to his “illicit doings”.
Nunley’s concerns about forfeiture of the Pelham property, the explanations offered
by the government, his attorney, and the Court are well-documented throughout the record
and summarized by the Magistrate Judge. [See Record No. 409, pp. 26–28] Nunley’s
attorney successfully convinced the government to reduce the monetary judgment and
avoided direct forfeiture of the Pelham property. [Record No. 331, pp. 12–13] Nunley
expressed reluctance about the forfeiture of the property several times, whether through
direct forfeiture or substitution. Yet, after extensive explanation, Nunley confirmed his
agreement with the terms of the written Plea Agreement throughout the change of plea and
sentencing process.
To the extent that Nunley’s attorney advised him at some point in the process that the
Pelham property would be subject to direct forfeiture, he has failed to demonstrate that this
statement rises to the level of ineffective assistance of counsel. The property was not directly
forfeited. Further, Nunley does not contest the facts underlying the amount of the judgment.
Thus, as further described by the Magistrate Judge, Nunley has neither demonstrated that his
counsel was deficient nor that he was prejudiced by his actions.
III.
Nunley requested an evidentiary hearing to address what he “reasonably understood”
during the change of plea hearing. See United States v. Fields, 763 F.3d 443, 453 (6th Cir.
2014). However, an evidentiary hearing is not necessary if “the files and records of the case
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conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b). Where, as
here, the defendant’s allegations “cannot be accepted as true because they are contradicted by
the record, inherently incredible, or conclusions rather than statements of fact,” a hearing is
not required. Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999).
Nunley’s claims simply do not warrant a hearing. The record needs no further
development and, as described above, it conclusively demonstrates that each claim fails on
the merits.
IV.
A Certificate of Appealability may issue “only if the applicant has made a substantial
showing of the denial of a constitutional right.” Miller-El v. Cockrell, 537 U.S. 322, 336
(2003); 28 U.S.C. § 2253(c)(2). When the denial of a motion filed under § 2255 is based on
the merits, the defendant must demonstrate that “reasonable jurists would find the district
court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529
U.S. 473, 484 (2000). Nunley has not made a substantial showing that he was denied his
constitutional rights. Reasonable jurists would not debate the denial of Nunley’s § 2255
petition or concluded that the issues presented are adequate to deserve encouragement to
proceed further. Id. Therefore, a Certificate of Appealability will not issue.
V.
Based on the foregoing analysis and discussion, it is hereby
ORDERED as follows:
1.

The Report and Recommendation of Magistrate Judge Robert E. Wier [Record

No. 409] is ADOPTED in full and INCORPORATED by reference.

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2.

Defendant Vincent Nunley’s objections [Record No. 412] to the Report and

Recommendation are OVERRULED.
3.

Defendant Vincent Nunley’s motion to vacate, set aside, or correct his

sentence pursuant to 28 U.S.C. § 2255 [Record No. 388] is DENIED.
4.

A Certificate of Appealability shall not issue with respect to any matter or

claim raised in this proceeding.
5.

A judgment in favor of the United States shall issue this date.

This 8th day of January, 2016.

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