Elliott v. USA
Filing
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MEMORANDUM OPINION & ORDER: (1) That Petitioner/Defendant Jimmy Earl Elliott's Objections to the Magistrate Judge's Recommended Disposition [Record No. 264] are OVERRULED; (2) The Magistrate Judge's Recommended Disposition [Record No. 263] is ADOPTED and INCORPORATED by reference;(3) Elliott's Motion to Amend, Vacate, or Set Aside His Sentence, pursuant to 28U.S.C. § 2255 [Record No. 238] is DENIED; (4) A Certificate of Appealability shall not issue because Elliott has not made a substantial showing of the denial of a substantive constitutional right; (5) This habeas proceeding is DISMISSED and STRICKEN from the docket. Signed by Judge Danny C. Reeves on 05/11/2011.(MRS)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
(at London)
UNITED STATES OF AMERICA,
Plaintiff/Respondent,
V.
JIMMY EARL ELLIOTT,
Defendant/Petitioner.
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Criminal Action No. 6: 06-101-DCR
Civil Action No. 6: 10-7120-DCR
MEMORANDUM OPINION
AND ORDER
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This matter is before the Court for consideration of Defendant/Petitioner Jimmy Earl
Elliott’s motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 [Record
No. 238] and his objections to the Magistrate Judge’s Recommended Disposition on that motion.
[Record No. 264] For the reasons discussed below, Elliott’s objections will be overruled and his
§ 2255 motion will be denied.
I.
Elliott was charged on March 1, 2007, in six counts of a 22-count, multi-defendant
superceding indictment. [Record No. 75] The grand jury charged Elliott with conspiring to
distribute 1,000 kilograms or more of marijuana in violation of 21 U.S.C. § 846, distributing
marijuana and methamphetamine in violation of 21 U.S.C. § 841(a)(1), possessing a firearm after
having previously been convicted of a felony in violation of 18 U.S.C. § 922(g)(1), and two
forfeiture counts. [Id.]
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Due to the quantity of drugs charged and his criminal history, Elliott faced a mandatory
minimum term of imprisonment of twenty years if convicted. See 21 U.S.C. § 841(b)(1)(A).
However, Elliott’s attorney, David Hoskins, was able to negotiate a plea agreement with the
United States that reduced Elliott’s mandatory minimum of imprisonment to ten years. The
government agreed that, in exchange for a guilty plea to the conspiracy, firearm, and both
forfeiture counts, the United States would dismiss the other counts and would stipulate at
sentencing that Elliott’s relevant conduct involved less than 1,000 kilograms of marijuana. [See
Record No. 128] Paragraph 8 of Elliott’s plea agreement is particularly important to this
analysis: “The Defendant waives the right to appeal and the right to attack collaterally the guilty
plea, conviction, but not the sentence.” [Id.]
Elliott was re-arraigned on March 20, 2007. [Record No. 186] He was placed under oath
and the Court informed Elliott of the weight of that oath and the importance of truthful answers.
[Id., p. 3] The Court confirmed that Elliott was competent to enter a plea [id., pp. 3–5], that he
had read and understood the terms of the plea agreement [id., pp. 6–10], that the agreement was
voluntary and not a result of threats or coercion [id., p. 10], and that the agreement was not based
on any other promises or assurances of a specific sentence [id., p. 10]. The Court informed
Elliott of the maximum sentence he could receive [id., pp. 12–13], explained the sentencing
guidelines [id., p. 14–17], and discussed the scope of his waiver [id., pp. 17–18]. Finally, the
Court described the elements of each count that the government would have to prove beyond a
reasonable doubt, specifically asked Elliott to explain what he had done to be guilty of each
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count [id., pp. 20–26], and accepted Elliott’s guilty plea as to Counts 1, 14, and the forfeiture
counts (18 and 19). [Id., p. 26]
Prior to sentencing, Elliott was provided a Presentence Investigation Report (“PSR”) that
summarized the Probation Office’s calculations as to the applicable range under the United
States Sentencing Guidelines (the “Guidelines”). Because Elliott had been previously convicted
of two separate felony drug offenses, the Probation Office applied the enhancement for a career
criminal pursuant to § 4B1.1 of the Guidelines. United States Sentencing Commission,
Guidelines Manual, § 4B1.1 (Nov. 2006) [hereafter, “USSG”].
Elliott objected to this
enhancement, and argued that the two separately-charged drug trafficking offenses were “related
cases” and should not be counted separately for purposes of the career offender enhancement.
The Court overruled Elliott’s objection. The Court recognized that the offenses “were close in
time” and “they also involve[d] the same detective purchasing the illegal substances,” but
nevertheless concluded that the two offenses were not “related cases” within the meaning of the
Guidelines. [Record No. 187, p. 10] As a result of the Court’s ruling, Elliott was subject to a
Guideline range of 262 to 327 months. The United States moved for a downward departure
pursuant to § 5K1.1 of the Guidelines, which the Court granted. The Court determined that
Elliott’s sentence should be reduced by 60 months for substantial assistance. [Id., p. 28] After
beginning with a sentence at the low end of the Guidelines (262 months) the Court subtracted
60 months and imposed a term of incarceration of 202 months. The 120 month sentence on
Elliott’s firearm count was run concurrently, for a total term of 202 months. [Id., pp. 28–29]
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Elliott appealed his sentence to the United States Court of Appeals for the Sixth Circuit.
See United States v. Elliott, 327 F. App’x 540 (6th Cir. 2009). The Sixth Circuit concluded that
this court had not committed error by finding that the two underlying convictions were separate
offenses. Id. at 548 (“The district court, therefore, properly enhanced Elliott Senior’s Guidelines
calculation under U.S.S.G. § 4B1.1.”). The Sixth Circuit likewise disposed of Elliott’s other
arguments and affirmed his sentence. Id. at 550. Elliott petitioned the Supreme Court for a writ
of certiorari, but his petition was denied. See Elliott v. United States, 129 S. Ct. 2850 (2009).
Elliott timely filed the instant motion, pursuant to 28 U.S.C. § 2255 on May 1, 2010.
[Record No. 238] Thereafter, United States Magistrate Judge Hanly A. Ingram issued a
Recommended Disposition. [Record No. 263] Magistrate Judge Ingram recommended that
Elliott’s motion be denied because Elliott had failed to show that his waiver was unknowing,
involuntary, or the product of ineffective assistance and because the performance of Elliott’s
counsel at sentencing and on appeal was constitutionally effective. Elliott filed timely objections
to the Magistrate Judge’s Recommended Disposition on March 26, 2011. [Record No. 264] The
Court reviews any part of the magistrate judge’s disposition that has been properly objected to
under a de novo standard. Fed. R. Civ. P. 72(b)(3).
II.
Elliott’s objections fall into two categories. First, he challenges the validity of his plea
agreement and the waiver contained therein. Elliott argues that because he was unaware that he
would be subject to the career offender enhancement, his plea could not have been entered into
knowingly, voluntarily, or intelligently. In the alternative, Elliott argues that his counsel
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provided ineffective assistance because he failed to further investigate the facts of Elliott’s statecourt conviction and inform him, prior to pleading guilty, that he would be subject to the
enhancement. Second, Elliott contends that the assistance of his trial counsel during the
sentencing phase and his appellate counsel who challenged the sentence on appeal was
ineffective. Elliott claims that their failure to obtain the state-court documents and provide those
to the court contributed to what he believes were incorrect rulings regarding the enhancement
applied. For the reasons explained below, because each of Elliott’s contentions is without merit,
his objections will be overruled and his § 2255 motion will be denied.
A.
The Plea Agreement and Waiver
In his plea agreement, Elliott waived the right to collaterally attack his guilty plea or
conviction. [Record No. 128 ¶ 8] “It is well settled that a defendant in a criminal case may
waive any right, even a constitutional right, by means of a plea agreement.” United States v.
Calderon, 388 F.3d 197, 199 (6th Cir. 2004) (quoting United States v. Fleming, 239 F.3d 761,
763–64 (6th Cir. 2001) (internal quotation marks and citation omitted)). Because Elliott agreed
not to collaterally attack his plea agreement, it would seem the portion of his § 2255 motion
attacking the validity of his plea agreement would be foreclosed. See Davila v. United States,
258 F.3d 448, 451 (6th Cir. 2001) (holding that when a movant has waived “the right to
collaterally attack his or her sentence, he or she is precluded from bring[ing] a claim of
ineffective assistance of counsel based on 28 U.S.C. § 2255”). However, that is not necessarily
the case. The Sixth Circuit has held that a movant may challenge the validity of the waiver itself
by arguing that “his plea was not knowing or voluntary, or was the product of ineffective
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assistance of counsel.” In re Acosta, 480 F.3d 421, 422 (6th Cir. 2007). In other words, by
arguing that his plea was unknowing or based on ineffective assistance, Elliott is allowed to
proceed with the very challenge he waived: a collateral attack of his plea. Therefore, in
accordance with Acosta, the Court will first examine whether Elliott’s waiver and plea were
knowing, voluntary, and made with the effective assistance of counsel.
Elliott’s waiver of his right to appeal and collaterally attack his plea was knowing and
voluntary. It is without question that Elliott’s plea was voluntary; Elliott has never argued that
he was coerced or forced into waiving his rights. Elliott principally asserts that his waiver was
unknowing: that because he did not know he would be sentenced as a career criminal, his waiver
was not fully informed. However, Elliott’s argument cuts directly against his statements in the
plea proceeding. First, the Court discussed the waiver provision with Elliott and ensured he
understood its terms:
THE COURT:
Your plea agreement also has some waiver language
contained in it in paragraph eight. Actually, its seven and eight. But in paragraph
eight, you state that you waive the right to appeal and the right to attack
collaterally, or file a separate lawsuit to challenge, the guilty plea or the
conviction. And you understand you’re waiving those rights, correct?
THE DEFENDANT: Yes.
THE COURT:
But you are not waiving the right to appeal your sentence
and you still have that right. And you understand that?
THE DEFENDANT: Yes.
[Record No. 186, p. 17]
It is clear from this exchange that Elliott understood the rights he was waiving and the
effect of his waiver. The Court complied with Federal Rule of Criminal Procedure 11(b)(1)(N),
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which requires that, before a guilty plea is accepted, the court must inform the defendant of, and
determine that the defendant understands the terms of a waiver provision in the plea agreement.
See United States v. Mcgilvery, 403 F.3d 361, 363 (6th Cir. 2005). Elliott was explained the
nature of his waiver, and he voluntarily agreed to it.
In response, Elliott claims that his answers were uninformed because he was unaware of
the potential enhancement he could receive. However, this argument is directly contradicted by
the Court’s follow-up questions and Elliott’s answers.
THE COURT:
Now, unless waived, as I said, you would have the right to
appeal your sentence to the United States Court of Appeals for the Sixth Circuit.
But do you understand that you would not be able to withdraw from you plea
agreement if your attorney’s prediction or your belief about your guideline range
were to be inaccurate? You understand that?
THE DEFENDANT: Yes.
THE COURT:
And if the Court were to consider one or more of those
statutory factors that I have just gone through with you, that would not be grounds
for withdrawing from your plea agreement. You understand that?
THE DEFENDANT: Yes.
THE COURT:
And if the sentence that’s ultimately imposed in your case
would be more severe than you expect, again, you would still be bound by your
plea agreement and you couldn’t use that as a reason to withdraw from it. You
understand that?
THE DEFENDANT: Yes.
[Record No. 186, pp. 17–18]
This line of questioning can be summed up simply: Elliott understood that even a
sentence greater than he expected would not be grounds to later challenge his plea or waiver.
However, that is the precise argument Elliott now advances. [See Record No. 264, p. 2 (“Mr.
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Elliott’s responses to the District Court’s questions pursuant to Rule 11—when Mr. Elliott was
not aware of his status as a career offender and the effect that would have on his sentence—did
not meet the requirements of a knowingly, voluntarily, and intelligently entered plea.”)]
Elliott’s claim that his waiver was unknowing or involuntary is not supported by the record.
Numerous courts have held that plea agreements and waivers were knowingly and
intelligently entered even when a particular defendant was unaware how severely he would be
sentenced. See, e.g., United States v. Smith, 143 F. App’x 559, 561 (5th Cir. 2005) (rejecting
defendant’s claim that the failure to inform him of a potential career offender enhancement
rendered his plea involuntary); United States v. Wilhite, 929 F.2d 702 (6th Cir. 1991) (“Concerns
for due process do not require that a criminal defendant be placed on advance notice of the
application of a career offender sentence under Guideline 4B1.1, so long as the defendant has,
as he was in the instant case, been afforded an adequate opportunity to challenge the factual basis
for applying the enhancement.”); Unites States v. Stephens, 906 F.2d 251, 254 (6th Cir. 1990)
(“Because appellant was fully aware that his ultimate sentence under the agreement was subject
to later determination by the court based on a variety of factors at the time he entered into it, the
fact that he did not know specifically that he would be subject to sentencing in [a particular]
range does not mean that it was entered into unknowingly and unintelligently.”); United States
v. Brown, No. 07-2309, 2010 U.S. Dist. LEXIS 76286, at *24 (W.D. Tenn. July 23, 2010)
(noting that while the defendant “was not specifically advised, during the Rule 11 colloquy,
about the potential for a career offender enhancements,” his conviction would not have been
overturned because “the presentence report afforded him reasonable notice that the judge would
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be considering the enhancement, and he was afforded the opportunity to be heard on the issue”).
Both the record and the applicable law compel the conclusion that Elliott’s plea and waiver were
knowingly and voluntarily entered.
Further, neither Elliott’s plea agreement nor waiver was entered into as a result of
ineffective assistance of counsel. To prove ineffective assistance of counsel, Elliott must prove
two distinct elements. “First, the defendant must show that counsel’s performance was deficient.
This requires showing that counsel made errors so serious that counsel was not functioning as
the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland v. Washington,
466 U.S. 668, 687 (1984). Second, “the defendant must show that the deficient performance
prejudiced the defense.” Id. at 687. Where, as here, the ineffective-assistance claim arises out
of the plea process, Elliott “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.
Hill v. Lockhart, 474 U.S. 52, 59 (1985). A defendant has the burden of proving both of
Strickland’s prongs. Strickland, 466 U.S. at 687. Ultimately, “[w]hen deciding ineffectiveassistance claims, courts need not address both components of the inquiry ‘if the defendant
makes an insufficient showing on one.’” Campbell v. United States, 364 F.3d 727, 730 (6th Cir.
2004) (quoting Strickland, 466 U.S. at 697).
In the present case, Elliott has not shown any prejudice as a result of his counsel’s
performance in connection with his decision to plead guilty. “It is well settled that a defense
attorney’s erroneous calculation and prediction of the sentencing guidelines is not a basis for
setting aside a guilty plea.” United States v. Hicks, 4 F.3d 1358, 1363 n. 3 (6th Cir. 1993); see
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also United States v. Stephens, 906 F.2d 251, 253 (6th Cir.1990) (“The mere fact that an attorney
incorrectly estimates the sentence a defendant is likely to receive is not a ‘fair and just’ reason
to allow withdrawal of a plea agreement . . . . This is especially true under the new Sentencing
Guidelines.”). In other words, when the District Court properly conducts a Rule 11 colloquy and
informs the defendant of the maximum penalty he may receive, he simply cannot then argue that
an attorney’s inaccurate prediction caused prejudice. See Gleason v. United States, No. 08-969,
2010 U.S. Dist. LEXIS 39226, at *36–38 (S.D. Ohio Apr. 20, 2010) (“The rationale is that the
Rule 11 colloquy, which advises the defendant of the minimum and maximum imprisonment
range under the statute and provides other necessary information about the Guidelines sentencing
process, eliminates any arguable prejudice from an earlier estimate by counsel.”) (internal
citation omitted) (citing United States v. Martinez, 169 F.3d 1049, 1053 (7th Cir.1999) (“[A]n
attorney’s mere inaccurate prediction of sentence does not demonstrate the deficiency component
of an ineffective assistance of counsel claim.”) (citation omitted); Gonzalez v. United States, 33
F.3d 1047, 1051–53 (9th Cir.1994) (“The district court informed [the defendant] of the
maximum possible sentences and fines for the offenses to which he pleaded guilty. He responded
affirmatively when asked if he was satisfied with [counsel]’s representation of him. As a result,
[he] cannot claim he was prejudiced by [counsel]'s alleged gross error in calculating the
sentencing guidelines range and likely sentence.”); Doganiere v. United States, 914 F.2d 165,
168 (9th Cir.1990) (“[Defendant]’s attorney’s inaccurate prediction of what sentence [he] would
receive upon pleading guilty does not rise to the level of a gross mischaracterization of the likely
outcome of his case, and thus does not constitute ineffective assistance of counsel . . . . Further,
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[defendant] suffered no prejudice from his attorney’s prediction because, prior to accepting his
guilty plea, the court explained that the discretion as to what the sentence would be remained
entirely with the court.”)).
In Elliott’s case, the Court properly informed Elliott of his maximum sentence [Record
No. 186, pp. 12–13] and ensured that his plea was not the result of any promises or assurances
regarding his sentence range:
THE COURT:
But do you understand that until that process has taken place it
would be impossible for the Court or your attorney to know exactly what your guideline range
would be? You understand that?
THE DEFENDANT: Yes.
THE COURT:
Other than what’s contained in this plea agreement, has
anyone else made any promises to you in order to induce you or convince you to
enter into a plea agreement?
THE DEFENDANT: No.
THE COURT:
Has anyone made any threats or in any way forced you to
enter into a plea agreement?
THE DEFENDANT: No.
THE COURT:
Has anyone told you that you would receive a specific
sentence in exchange for entering a plea agreement?
THE DEFENDANT: No.
[Id., pp. 10–12]
Despite telling the Court, under oath, that his plea was not predicated on the promise of
a particular sentence, Elliott now claims that he was prejudiced by his attorney’s predictions
regarding his sentence range. Such a claim cannot be seriously maintained. Elliott has not
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shown any prejudice resulting from his counsel’s performance, and has therefore has failed to
meet his burden of showing ineffective assistance of counsel. Because Elliott has failed to show
that his waiver was either unknowing, involuntary, or the product of ineffective assistance, his
waiver will be enforced and his collateral attack of his guilty plea is foreclosed. However,
Elliott’s waiver did not encompass collateral attacks of his sentence, so the portion of his § 2255
motion attacking counsel’s performance at sentencing and on appeal must be addressed.
B.
Assistance of Counsel at Sentencing and on Appeal
Elliott’s fourth objection relates to the performance of his counsel at sentencing and
appeal. Elliott argues that his counsel was deficient in two ways: first, by failing to move to
withdraw Elliott’s guilty plea once he knew he would be sentenced as a career offender and
second, by failing to obtain the state-court criminal history documents. Elliott believes the statecourt documents would have proven that his prior convictions were, in fact, related cases.
Therefore, Elliott contends that without these documents the Court made an uninformed ruling
which was predicated on the ineffective assistance of counsel.
As a preliminary matter, Elliott’s objection appears to generally reargue the propriety of
his career offender enhancement. The Sixth Circuit has plainly stated that “a § 2255 motion may
not be employed to relitigate an issue what 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) (citing Oliver v. United States, 90 F.3d 177, 180 (6th
Cir. 1996)). The Court recognizes that there is a thin line between showing “prejudice” under
Strickland and relitigating an issue, but the majority of Elliott’s arguments fall on the wrong side
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of that line. For example, Elliott argues that “the indictments show that the offenses were jointly
planned because Mr. Elliott kept selling drugs to the same undercover officer as the officer kept
on buying . . . . Again, in response to the District Court’s reference to commission of one
offense that led to the commission of the others—that is what exactly what happened [sic].”
[Record No. 264, p. 12] The information Elliott finds persuasive, that the same officer bought
the drugs in each instance, was before the Court in its original decision. [See Record No. 187,
p. 10 (noting that the two convictions “involve[d] the same detective purchasing the illegal
substances”)] In other words, Elliott is arguing that the facts already contained in the record
demand a different result, not that facts undiscovered by his attorney would have demanded a
new result. Such an argument is inappropriate in a § 2255 motion. See Jones, 178 F.3d at 796.
To the extent Elliott’s argument does focus on the actions of counsel, it also fails. For
many of the reasons previously explained, Elliott has not shown that he was prejudiced by his
counsel’s failure to obtain state-court documents. First, Elliott argues counsel was deficient by
not moving to withdraw the plea. However, the Court has already explained that “a defense
attorney’s erroneous calculation and prediction of the sentencing guidelines is not a basis for
setting aside a guilty plea.” United States v. Hicks, 4 F.3d 1358, 1363 n. 3 (6th Cir. 1993); see
also United States v. Stephens, 906 F.2d 251, 253 (6th Cir.1990) (“The mere fact that an attorney
incorrectly estimates the sentence a defendant is likely to receive is not a ‘fair and just’ reason
to allow withdrawal of a plea agreement . . . . This is especially true under the new Sentencing
Guidelines.”). Elliott has not shown that, even had his attorney made the motion to withdraw
his plea, sufficient grounds existed to grant the motion. At best, the motion would have been
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predicated on an erroneous prediction of potential sentences, which is insufficient to allow
withdrawal. Consequently, Elliott’s argument that his counsel was ineffective for failing to
attempt to withdraw his plea is without merit.
Elliott’s next contention is that his attorney was deficient for failing to provide state-court
documents to the Court. Elliott believes these documents would “demonstrate that Mr. Elliott’s
prior offenses were ‘effectively consolidated’ and were therefore ‘related cases.’” [Record No.
264, p. 11] However, Elliott does not provide any information that could be found in those
documents that was not in the record before the Court at sentencing. As the Court has previously
noted, the dates of the offenses were clarified orally [see Record No. 187, p. 7 (“What Mr.
Hoskins says is correct. If you look at the offense conduct in paragraph 71, the offense conduct
was on July 1st, 1993. That is the second date. In paragraph 72, the offense conduct is . . . June
29th.”)] and were plainly stated in the PSR. [Record No. 159] The Court discussed that the two
events “weren’t contemporaneous, there was, some period between the two,” [Record No. 187,
p. 4] but was not overly concerned by the precise number of days between them.1
All the
information that Elliott claims was missed by his attorney was properly provided in the record,
either in the PSR or explained at the sentencing hearing. The Court relied on much of this
information in making its ruling. [See Record No. 187, p. 10 (recognizing that the offenses
“were close in time” and “they also involve[d] the same detective purchasing the illegal
1
Elliott seems to be very concerned by the semantics of how many days separate June 29th and July
1st. Elliott argues that “the dates were no more than one day apart yet trial counsel states they were two or
three days apart.” [Record No. 264, p. 11] First, this distinction is one of form, not of substance, which was
not significant to the Court’s ruling. Second, Elliott is wrong. Events occurring on June 29th and July 1st
are, at minimum, 24 hours and 1 minute apart and, at maximum, 72 hours apart. Under no circumstances
were the events within 24 hours of one another. In other words, a characterization of the events being two
to three days apart is accurate.
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substances,” but nevertheless concluding that the two offenses were not “related cases” within
the meaning of the Guidelines)] The Sixth Circuit likewise had the entire record available to it
and affirmed Elliott’s sentence. See Elliott, 327 F. App’x at 548. Elliott has failed to show that
he was prejudiced by any error of his attorneys in failing to obtain and produce state-court
documents concerning his conviction. Thus, his effective-assistance challenge fails.
C. Remaining Objections
Finally, Elliott objects to the Magistrate Judge’s conclusions that no evidentiary hearing
was needed and that no certificate of appealability should issue. However, the Magistrate Judge
was correct in each instance. “An evidentiary hearing is required unless ‘the record conclusively
shows that the petitioner is entitled to no relief.’” Arredondo v. United States, 178 F.3d 778, 782
(6th Cir. 1999) (quoting Blanton v. United States, 94 F.3d 227, 235 (6th Cir. 1996)). In Elliott’s
case, the Court finds that the record conclusively shows he is not entitled to relief. Elliott’s
waiver and its voluntariness can easily be determined on the present record. Elliott’s failure to
show prejudice in his ineffective-assistance claims are likewise clear on the pleadings before the
Court. Therefore, Elliott’s failure to meet his burden is clear on the record and no evidentiary
hearing is necessary. See Thomas v. United States, 27 F.3d 321, 326–27 (8th Cir. 1994) (holding
that a defendant who alleged ineffective assistance of counsel due to an improper Guidelines
range calculation was not entitled to an evidentiary hearing). Elliott’s fifth objection will be
overruled.
Additionally, no certificate of appealability should issue. Elliott has failed to make a
“substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). He has not
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demonstrated 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). The
arguments presented by Elliott’s motion are not “close calls.” He has fallen far short of meeting
the standard for relief under § 2255, and this conclusion is not reasonable debatable. Elliott’s
sixth objection will be overruled and the Court will not issue a certificate of appealability.
III.
Elliott has failed to meet his burden for § 2255 relief. His waiver was knowing,
voluntary, and not the result of ineffective assistance of counsel. His counsel at sentencing and
on appeal was not ineffective nor did any mistakes they may have made cause prejudice.
Additionally, he has not shown any error of constitutional magnitude. Accordingly, it is hereby
ORDERED as follows:
(1)
That Petitioner/Defendant Jimmy Earl Elliott’s Objections to the Magistrate
Judge’s Recommended Disposition [Record No. 264] are OVERRULED;
(2)
The Magistrate Judge’s Recommended Disposition [Record No. 263] is
ADOPTED and INCORPORATED by reference;
(3)
Elliott’s Motion to Amend, Vacate, or Set Aside His Sentence, pursuant to 28
U.S.C. § 2255 [Record No. 238] is DENIED;
(4)
A Certificate of Appealability shall not issue because Elliott has not made a
substantial showing of the denial of a substantive constitutional right;
(5)
This habeas proceeding is DISMISSED and STRICKEN from the docket.
This 11th day of May, 2011.
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