Tarpley v. United States of America

Filing 12

OPINION ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

T a r p l e y v. United States of America

D o c . 12

UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF MICHIGAN S O U T H E R N DIVISION

R O B E R T TARPLEY, M o v a n t, File No. 1:09-CV-876 v. H O N . ROBERT HOLMES BELL U N IT E D STATES OF AMERICA, R e sp o n d e n t. / OPINION T h is matter comes before the Court on Movant Robert Tarpley's motion under 28 U .S .C . § 2255 to vacate, set aside, or correct the sentence imposed upon him by this Court. (D k t. No. 1, Mot. to Vacate.) For the reasons that follow, his motion will be denied. I. M o v a n t was indicted on February 26, 2004, for possession of heroin and cocaine with th e intent to distribute, conspiracy to distribute heroin and cocaine, and being a felon in p o s s e ss io n of a firearm, in violation of 21 U.S.C. §§ 846, 841(a)(1), 841(b)(1)(C), and 18 U .S .C . §§ 922(g)(1), 921(a), and 924(a)(2). (File No. 1:04-CR-52, Dkt. No. 1, Indict.)

M o v a n t pleaded guilty on February 7, 2006, and was sentenced to 180 months in prison f o llo w e d by three years of supervised release. (File No. 1:04-CR-52, Dkt. No. 222, J.) M o v a n t appealed and his conviction and sentence were affirmed by the court of appeals. U n ite d States v. Tarpley, 295 F. App'x 11 (6th Cir. 2008). Movant filed this § 2255 petition

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p ro se, asserting seventeen claims of ineffective assistance of counsel. (Dkt. No. 1.) II. A prisoner who moves to vacate his sentence under § 2255 must show that the s e n te n c e was imposed in violation of the Constitution or laws of the United States, that the c o u rt was without jurisdiction to impose such sentence, that the sentence was in excess of the m a x im u m authorized by law, or that it is otherwise subject to collateral attack. 28 U.S.C. § 2255. To prevail on a § 2255 motion "a petitioner must demonstrate the existence of an e r r o r of constitutional magnitude which had a substantial and injurious effect or influence o n the guilty plea or the jury's verdict." Humphress v. United States, 398 F.3d 855, 858 (6th C ir. 2005) (quoting Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003)). Nonc o n s titu tio n a l errors are generally outside the scope of § 2255 relief. United States v. C o field , 233 F.3d 405, 407 (6th Cir. 2000). A petitioner can prevail on a § 2255 motion a lleging non-constitutional error only by establishing a "fundamental defect which inherently re su lts in a complete miscarriage of justice, or, an error so egregious that it amounts to a v io la tio n of due process." Watson v. United States, 165 F.3d 486, 488 (6th Cir. 1999) (q u o tin g United States v. Ferguson, 918 F.2d 627, 630 (6th Cir.1990) (internal quotations o m itte d )) . As a general rule, claims not raised on direct appeal are procedurally defaulted and m a y not be raised on collateral review unless the petitioner shows either 1) "cause" and " a ctu a l prejudice"; or 2) "actual innocence." Massaro v. United States, 538 U.S. 500, 504

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(2 0 0 3 ); Bousley v. United States, 523 U.S. 614, 621-22 (1998); United States v. Frady, 456 U .S . 152, 167-68 (1982). An ineffective assistance of counsel claim, however, is not subject to the procedural default rule. Massaro, 538 U.S. at 504. An ineffective assistance of c o u n se l claim may be raised in a collateral proceeding under § 2255, whether or not the p e titio n e r could have raised the claim on direct appeal. Id. A court is generally required to grant a hearing to determine the issues and make f in d in g s of fact and conclusions of law on a § 2255 motion "[u]nless the motion and the files a n d records of the case conclusively show that the prisoner is entitled to no relief. . . ." 28 U .S .C . § 2255. Section 2255 does not require a full blown evidentiary hearing in every in sta n c e . "Rather, the hearing conducted by the court, if any, must be tailored to the specific n e e d s of the case, with due regard for the origin and complexity of the issues of fact and the th o ro u g h n e ss of the record on which (or perhaps, against which) the section 2255 motion is m a d e ." Smith v. United States, 348 F.3d 545, 550-51 (6th Cir. 2003) (quoting United States v . Todaro, 982 F.2d 1025, 1030 (6th Cir. 1993)). No evidentiary hearing is required if the p e titio n e r's allegations "cannot be accepted as true because they are contradicted by the re c o rd , inherently incredible, or conclusions rather than statements of fact." Valentine v. U n ite d States, 488 F.3d 325, 333 (6th Cir. 2007) (quoting Arredondo v. United States, 178 F .3 d 778, 782 (6th Cir. 1999)). Where the judge considering the § 2255 motion also c o n d u c te d the trial, the judge may rely on his or her recollections of the trial. Blanton v. U n ite d States, 94 F.3d 227, 235 (6th Cir. 1996).

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I I I. T o make out a claim of ineffective assistance of counsel, a movant must show that c o u n se l's representation fell below an objective standard of reasonableness and that c o u n s e l's deficient performance prejudiced movant. Strickland v. Washington, 466 U.S. 668, 6 8 7 -8 8 (1984). "The benchmark for judging any claim of ineffectiveness must be whether c o u n se l's conduct so undermined the proper functioning of the adversarial process that the tria l cannot be relied on as having produced a just result." Id. at 686. A. Ineffective assistance of Counsel during pre-trial procedures M o v a n t asserts that Counsel was ineffective because Counsel failed to file any pretria l motions. Movant does not state what motions Counsel should have filed, or how M o v a n t was prejudiced. This claim will be denied because it is conclusive and contains no f a c ts to support the allegation. Movant also stated that Counsel was ineffective for moving to Montana during the c o u rs e of the pre-trial proceedings, and was only present by phone for the final pre-trial h e a rin g held on February, 2, 2006. (Dkt. No. 1, Attach. 1, Br. in Supp. of Mot., 9.) Movant s ta te s that he was not able to see Counsel to discuss the case in person or to get "clarification o r seek reassurance on last minute misgivings." (Dkt. No. 1, 4.) Movant claims that if C o u n s e l had been present in person during the final pre-trial hearing, Counsel could have p ick e d up on cues that Movant was uncomfortable. (Dkt. No. 1, Attach. 1, 10.) He suggests th e possibility that Counsel was not even paying attention because Counsel was only listening

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in on the conversation. (Dkt. No. 1, Attach. 1, 10.) Movant further states that it is possible C o u n s e l would not have spoken up if Counsel had missed anything, or was unprepared, for f e a r of embarrassment of saying it out loud in front of everyone. (Dkt. No. 1, Attach. 1, 10.) While those possibilities exist, Movant does not allege that anything of that nature occurred. H e did not set forth any specific actions or inactions on the part of Counsel that resulted from h im not being physically present during that final pre-trial hearing. The record shows that M o v a n t did have time to speak with Counsel privately on the phone at the conclusion of the c o n f e re n c e and could have discussed any concerns at that time. (File No. 1:04-CR-52, Dkt. N o . 241, Tr. of Final Pre-Trial, 12.) Movant stipulates that Counsel met with him for five h o u rs prior to the final pre-trial hearing, and was there in person on the day of the second p lea hearing and at sentencing. (Dkt. No. 11, Reply to Government Resp., 6.) At sentencing Movant did express his disapproval of Counsel's performance. Movant in f o rm e d the Court that he was not happy with Counsel because he had been in Montana d u rin g a portion of the proceedings. (File No. 1:04-CR-52, Dkt. No. 232, Sent. Tr., 9.) H o w e v e r, Movant's true concern seemed to be about the information in the pre-sentence re p o rt ("PSR") that he believed was not accurate or should not be considered by the court in d e c id in g his sentence. (Sent. Tr., 9-10.) Movant specifically mentioned his concerns about p rio r arrests being used to show a career offender status, the amount of drugs attributed to h im , as well as his desire to receive time served for the eight months he spent in state d e te n tio n prior to sentencing. (Sent. Tr., 11, 16.) Movant had the opportunity at that time

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to address any other concerns he may have had about Counsel, but did not do so. Movant also fails to meet his burden of showing that he was prejudiced by Counsel's p h ys ic a l absence and only alleges that if he "had a warm body at his pre-trial conference on 2 /2 /0 6 , [he] would have been able to detect [Counsel's] demeanor and not forfeited his Sixth A m e n d m e n t right to trial." (Dkt. No. 11, 6.) At the conclusion of the final pre-trial c o n f ere n c e, Movant had not forfeited anything. Movant later claims that it was "discussions w ith Mr. Merchant and detecting his demeanor in the courtroom [that] coerced [him] into a g u ilty plea." (Dkt. No. 11, 6.) Movant cannot claim that both Counsel's presence and lack o f presence caused him to accept the guilty plea. Movant's claim that Counsel was in e f fe c tiv e for not being present at the final pre-trial hearing is without merit and will be d e n ie d . Movant also claims that during pre-trial proceedings, Counsel accepted money from M o v a n t's wife to facilitate Counsel coming to Michigan. (Dkt. No. 1, Attach. 1, 11-12.) C o u n s e l states that he never received any money from Movant or his wife. (Dkt. No. 7, A tta c h . 1, 3.) Regardless, Movant has not alleged how Counsel accepting money to travel to Michigan prejudiced Movant in any way. Therefore, Movant's first claim that Counsel w a s ineffective during pre-trial procedures is without merit and will be denied. B. Ineffective assistance of Counsel for failing to file specific motions Movant lists four motions that he claims Counsel should have filed: (1) to quash the in d ic tm e n t; (2) to dismiss; (3) to produce exculpatory evidence; and (4) to suppress evidence

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b e c au s e the police did not have probable cause to enter Movant's premises on the day of the arrest. (Dkt. No. 1, Attach. 1, 12.) Movant also claims in his reply to the government's r e sp o n s e that Counsel was ineffective for failing to file a motion to sever the cases because M o v a n t's co-defendant may have testified in a way that would be "fatal at trial." (Dkt. No. 1 1 , 5.) Movant claims that the motions should have been filed to "safeguard [his] rights at tria l proceedings." Id. Movant only claims generally that if Counsel had filed the motion to s u p p re ss evidence, it "could have lead [sic] to a dismissal of charges because officials had n o valid reason or evidence to enter [his] residence." (Dkt. No. 11, 5.) Movant provides no b a sis for his claims that the motions should have been filed and Counsel claims that he " d e ter m in e d that there were no `non-frivolous' motions." (Dkt. No. 7, Aff. of David M e rc h a n t, 3.) A lawyer does not perform deficiently or prejudice his or her client by failing to raise frivolous objections. See Harris v. United States, 204 F.3d 681, 683 (6th Cir. 2000). A frivolous objection, if made, would not have altered the proceedings and therefore C o u n s e l's failure to file the motions was not unreasonable. See Strickland, 466 U.S. at 694. A ss u m in g arguendo that the motions had merit, Movant does not show how failure to file th e se motions prejudiced him in any way because Movant entered a guilty plea and waived h is right to a trial. (File No. 1:04-CR-52, Dkt. No.231, Plea Tr., 5.) Therefore, this claim w ill be denied.

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C . Ineffective assistance of Counsel for inducing the guilty plea by misrepresentation a n d withholding information M o v a n t states that Counsel coerced him into taking the plea at the last minute by tellin g Movant that he "couldn't win" and he would get a life sentence if he went to trial. (D k t. No. 1, 4.) Counsel states that Movant had been contemplating taking the plea and that it was "hard to believe" that Movant felt pressured because he was "an active part of how his c a se was going." (Dkt. No. 7, Attach. 1, 3.) At the plea hearing, Movant was asked if he was c o e rc e d or pressured to take the plea, and he replied that he was not. (Plea Tr., 7.) Movant v o lu n tee re d other information at the plea hearing regarding his hesitations about Counsel, (s e e section A), so it is unlikely that Movant was unwilling to state at the plea hearing that h e was being pressured. Movant further alleges that Counsel conspired with the United S ta te s Attorney's Office to create the first plea agreement and was even admonished by the C o u rt. Id. The Court admonished the attorneys, not for conspiring to harm Movant, but for a ttem p tin g to bind the court with a capped sentence agreement. (File No. 1:04-CR-52, Dkt. N o . 230, Tr. of Mot. to Withdraw Plea, 3-6.) The fact that Counsel was attempting to garner a preferential plea agreement supports the proposition that Counsel was attempting to s a f e g u a rd Movant's interests in receiving a low sentence, not harm him. Movant also alleges that Counsel's "lack of assertiveness denied [Movant] a fair and im p a rtial hearing." (Dkt. No. 1, Attach. 2, 14.) Movant does not state any specific facts to s u p p o rt his conclusion. Furthermore, Movant's allegations that Counsel was not assertive a re contradicted by his claims that Counsel was pushy and coerced Movant to take the plea 8

ag ree m en t. (Dkt. No. 11, Attach. 14, Aff. of Robert Tarpley.) Movant's allegations are inh ere n tly incredible based on his contradictory assertions regarding Counsel's demeanor. M o v a n t's claims of inducement to take the plea by misrepresentation and withholding in f o rm a tio n are without merit and will be denied. D. Ineffective assistance of Counsel for failing to raise objections during sentencing M o v a n t alleges that Counsel was ineffective for promising to address several o b je c tio n s and then failing to do so. (Dkt. No. 1, Attach. 1, 14.) Movant claims Counsel p rom ised to object to the amount of drugs attributed to Movant, (see section G), Movant's ro le as a manager in the conspiracy, and the application of the career criminal enhancement. (D k t. No. 1, Attach. 1, 14; Dkt. No. 11, 8.) Counsel did submit his objections in the pres e n te n c e memorandum and all but two were resolved before sentencing; the remaining o b jectio n s were raised orally at sentencing. (Mem.; Sent. Tr.) Movant claims that his role as a manager in the offense was determined under 3 B 1 .1 (b ), based solely on the testimony of the co-conspirators and should have been c h a lle n g e d by Counsel. (Dkt. No. 11, 9.) Counsel included this objection in his pre-sentence m e m o r a n d u m , (Mem., at 5), and at sentencing the court stated that it believed Movant was " p a rtia lly responsible for the peddling of this poison." (Sent. Tr. 25) ("[H]e in fact had ­ he w a s the older guy, he was the wisdom person, the person who had experience and knew what w a s good cocaine and what wasn't good cocaine and knew how to package it and m e rc h a n d is e it."). Movant's own statements at the plea hearing regarding his involvement

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in the conspiracy support the court's finding here. (Plea Tr., 8-10.) Therefore this claim is w ith o u t merit and will be denied. M o v a n t also claims that his status as a career offender was incorrect because the two p rio r convictions were part of the same course of conduct. (Dkt. No. 11, 9.) This claim was ra is e d by Movant on appeal to the Sixth Circuit Court of Appeals, and the Court found that th e application of the career offender status did not prejudice Movant. Tarpley, 295 F.

A p p 'x 11 (6th Cir. 2008). The career offender offense level was less than the total calculated o f f e n s e level, and was not used to calculate the guideline range. Id. Therefore, Movant was n o t prejudiced by the application of the career offender status. Notably, Counsel did discuss th is status in his pre-sentence memorandum and advocated that the court not apply the career o f f en d e r status. (Mem., 2-3.) Movant's allegations here are without merit and will be denied. M o v a n t further alleges that Counsel failed to raise objections during sentencing that w o u ld have introduced mitigating factors such as the following: (1) Movant was enrolled in re h a b ilita tio n services; (2) Movant was an addict; (3) the sentence should take into account M o v a n t's age; and (4) Movant should receive credit for the time served while in state d e te n tio n . (Dkt. No. 11, 18.) All of these allegations are without merit because the issues w e re raised in the pre-sentence memorandum submitted by Counsel and orally at sentencing. (M e m .; Tr. Sent.) Specifically, the court noted that it was "clear from the PSR that the D e f e n d a n t has labored under his addiction for some time and . . . This Court may take into a c c o u n t Defendant's addiction as a mitigating factor in sentencing the Defendant."

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(M e m ., 5; See United States v. Williams, 78 F. Supp. 2d 189 (S.D.N.Y. 1999).) Therefore, M o v a n t's claim of ineffective assistance of Counsel at sentencing is without merit and will b e denied. E. Ineffective assistance of Counsel for lying to Movant and to the Court M o v a n t alleges that Counsel was ineffective because he lied to both Movant and the C o u rt when Counsel claimed that he had taken care of all of the detainers on Movant. (Dkt. N o . 1, Attach. 2, 16.) Movant states that he was sent to United States Prison Terre Haute (" U S P T H " ) because of an alleged detainer, and Counsel never provided the paperwork to M o v a n t that he claimed to have. (Dkt. No. 1, Attach. 1, 16-17.) Movant states that he feared f o r his life while in USPTH, and that it was Counsel's fault. (Dkt. No. 1, Attach. 1, 17.) M o v a n t merely claims that Counsel told him there was no detainer and, in fact, there was. M o v a n t does not show how this alleged misrepresentation prejudiced his case or is grounds f o r vacating Movant's sentence. This claim is without merit and will be denied. A d d itio n a lly, Movant claims that Counsel was ineffective for failing to request bond f o r Movant after promising to do so. (Dkt. No. 1, Attach. 1, 17.) Counsel stated in his

a f f id a v it that he did not request bond because he did not believe Movant could overcome the b u r d e n to show detention was not needed. (Dkt. No. 7, Attach. 1, 4.) Counsel was also c o n c e rn e d with Movant's admitted "out of control" heroin habit. (Dkt. No. 7, Attach. 1, 4.) M o v a n t has not stated how the failure to request bond prejudiced him and has not shown that if Counsel had requested bond Movant likely would have received it.

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T h is claim will be denied. M o v a n t also asserts that Counsel was ineffective because he did not request that the e ig h t months Movant served in state prison be applied to his sentence after Counsel promised to do so. (Dkt. No. 1, Attach. 1, 18-19.) Counsel did request that the time be applied to M o v a n t's sentence. (Sent. Tr., 16.) Therefore, this claim is without merit and will be denied. F . Ineffective assistance of Counsel for failing to object to the pre-sentence report M o v a n t claims that Counsel failed to object to Movant's alleged role in the offense a n d the gun enhancement in the PSR. (Dkt. No. 1, Attach. 1, 20.) The objection based on M o v a n t's role was addressed above in section D and will be denied. Movant's objection to th e gun enhancement contains no facts to support his allegations, and is merely conclusory. T h e re f o re this claim is without merit and will be denied. M o v a n t also states that the criminal history in the PSR "over represents [sic] the s e rio u s n e ss of [Movant's] past criminal behavior." (Dkt. No. 1, Attach. 1, 21.) Counsel ra is e d this objection in the pre-sentence memorandum, and the Court addressed it at s e n te n c in g . (Sent. Tr., 26.) The Court stated that the "guideline range is much too high for w h a t this Court believes is an appropriate sentence under the facts and circumstances" and p ro c e ed e d to sentence Movant below the maximum. (Sent. Tr., 26.) The objection was ra ise d and resulted in a reduction of Movant's sentence. This claim is without merit and will b e denied.

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G . Ineffective assistance of Counsel for failing to object to the quantity of drugs a ttr ib u te d to Movant M o v a n t objects to the amount of dugs attributed to him in the PSR, and claims that C o u n s e l was ineffective for not objecting to the inaccuracy. (Dkt. No. 1, Attach. 1, 23.) On d ire c t appeal of his conviction, Movant alleged that the Court should have made an in d e p e n d en t ruling on the amount of drugs, but the court of appeals found that where the is s u e was not controverted, the Court was not required to do so. Tarpley, 295 F. App'x 11, 1 5 -1 6 (6th Cir. 2008). Movant now alleges Counsel was ineffective for not objecting to the a m o u n t requiring the Court to rule on it. Movant must show that it was unreasonable for C o u n s e l to not object, and that if raised, the objection to the drug amount likely would have re s u lte d in a lower finding by the Court. The PSR stated that Movant was being held responsible for 2.97 kilograms of heroin a n d 1.19 kilograms of powder cocaine. (PSR, ¶ 62.) The PSR also stated that Movant p ro f f ere d statements to the police regarding the conspiracy, the frequency of the drug e x c h a n g e s , and the amount of drugs and money involved in each exchange. (PSR, ¶ 63-65.) M o v a n t proffered similar information at the first plea hearings. (File No. 1:04-CR-52, Dkt. N o . 197, Tr. of Plea Hr'g I, 33.) Most importantly, Movant stated very clearly at the b e g in n i n g of the second plea hearing that he did not agree with everything in the PSR and th a t he would only admit to what he actually did. Id. Movant proceeded to say that it was re a so n a b ly foreseeable that the amount of drugs involved, both by the conspiracy as a whole a n d his own personal use, was more than one kilogram. Id. Because Movant proffered 13

in f o rm a tio n in prior interviews with the police and at the plea hearings, it was not u n re a so n a b le for Counsel to not object to the amount of drugs assigned to Movant in the PSR. If Counsel had objected, it would not have been likely to affect the outcome. During th e plea hearing, the government stated that they intended to show that Movant possessed or c o n sp ir e d to possess the alleged quantity of heroin and cocaine. (Dkt. No. 1, Attach. 3, at 9 -1 0 , Plea Hr'g.) For the conspiracy as a whole, the amount only had to constitute one k i lo g r a m or more. (Tr. of Plea Hr'g I, 24.) The Court was aware of Movant's personal use o f the drugs and the amount used by the entire conspiracy based on Movant's own statements a s well as the PSR. See United States v. Page, 232 F.3d 536, 542 (6th Cir. 2000) (holding th a t when a member of a conspiracy obtains drugs for personal use, they are aggregated with th e quantity of drugs used for the conspiracy). It is likely that even if Counsel had contested th e amount of drugs attributed to Movant in the PSR, the court would have relied on the g o v e rn m e n t's proofs and Movant's own statements to overrule the objection. Therefore, M o v a n t's claim is without merit and will be denied. H. Ineffective assistance of Counsel for ineffective use of the private investigator M o v a n t claims that Counsel was ineffective because he did not consult with Movant a b o u t the private investigator hired by Counsel. (Dkt. No. 1, 8.) Movant claims the private i n v e stig a to r was Counsel's friend and that the investigator asked questions that frustrated M o v a n t. (Dkt. No. 1, 8.) Movant states that Counsel "should have consulted [Movant] in

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o rd e r to let him voice his concerns." Id. Movant alleges that he told Counsel he did not like th e investigator, but because Counsel did nothing about it, this "discouraged [Movant] and p re v e n te d him from continuing to trial." (Dkt. No. 11, 18.) However, Movant alleges no sp e c if ic reasons that Counsel's actions were unreasonable or how the failure to consult with M o v a n t regarding the private investigator actually prevented Movant from going to trial. B e c a u se Movant has not supplied supporting facts, this claim is conclusory and without merit a n d will be denied. I. Ineffective assistance of Counsel for failing to object to the base level for the drugs T h e Court has addressed this claim in section G. This claim will be denied. J. Ineffective assistance of Counsel for being ill-equipped for the defense M o v a n t alleges that Counsel should have prepared a stronger defense based on M o v a n t's status as a drug addict. (Dkt. No. 1, 9.) Movant claims that a defense based on his c rim in a l history of simple possession and use "was plausible" and could have resulted in his s e n te n c e being reduced. (Dkt. No. 11, 19.) In general, trial tactics are given great deference, a n d debatable trial tactics do not necessarily constitute ineffective assistance of counsel. S a m a ta r v. Clarridge, 225 Fed. App'x. 366 (6th Cir. 2007). Movant provides no evidence t h a t Counsel did not prepare a defense, and the record shows that Counsel stated he was p re p a re d and ready for trial as of the final pre-trial hearing.1 (Tr. of Final Pre-Trial Hr'g, 9-

Notably, Counsel must have investigated the issue, as he specifically discussed M o v an t's history as a drug addict as a mitigating factor at sentencing. (Sent. Tr., 14-18.) 15

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1 0 .) Movant has also failed to show that he was prejudiced by Counsel's actions. Movant p lea d e d guilty to count one, and waived his right to go to trial. (File No. 1:04-CR-52, Dkt. N o . 212, Mins. of Change of Plea.) Movant could not be prejudiced by Counsel's alleged f a ilu re to prepare for trial when there was no trial. This claim will be denied. K. Ineffective assistance of Counsel for not objecting to the court's denial of a c o n tin u a n ce at sentencing M o v a n t states that Counsel was ineffective for failing to object to the Court's denial o f the continuance at sentencing based on Movant's inability to review the PSR. (Dkt. No. 1 , 9.) Movant states that he did not have an opportunity to go over the amended PSR with c o u n se l. (Dkt. No. 11, 19.) However, Movant stated at sentencing that he had prepared his o w n notes of his objections to the PSR, (Sent. Tr., 12), and he does not dispute that he and C o u n s e l had reviewed the previous drafts of the PSR. (Dkt. No 1, Attach. 2, 6.) Movant also " d o e s not contend that the amended PSR was substantially different than the previous v e rs io n ." (Dkt. No 1, Attach. 2, 6.) Movant's allegations that he did not have proper time to review the PSR with Counsel is irrelevant because he personally had reviewed the a m e n d e d report, and he had reviewed the previous, and materially similar, reports with C o u n s e l. Notably, Movant's claims that Counsel failed to object are contradicted by the fact th a t Counsel moved for an adjournment on the grounds that Movant had been unable to re v ie w the PSR, but the Court denied the motion.2 (Dkt. No. 1, Attach. 1, at 6; Sent. Tr., 4.)

On direct appeal, the court of appeals rejected Movant's claim that the Court abused its discretion by failing to grant the continuance because Movant had not shown actual prejudice. Tarpley, 295 F. App'x at 16.

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M o v a n t's claim is without merit and will be denied. L. Ineffective assistance of Counsel for rendering imprudent advice Movant claims that Counsel was ineffective for telling Movant that he should not w ith d ra w his plea. (Dkt. No. 1, 9.) Movant alleges that Counsel told Movant that if Movant w it h d r e w his plea, he would be "on his own." Id. Movant claims this left him with no c h o ic e but to continue with the plea. This claim is contradicted by the record because M o v a n t did later withdraw his first plea and Counsel did not leave him.3 (Dkt. No. 11, 20.) M o v a n t has not shown how Counsel's statements, if made, prejudiced Movant because he w ith d re w his original plea. This claim will be denied. M. Ineffective assistance of Counsel for allowing Movant to make incriminating s ta te m e n ts at sentencing M o v a n t alleges that Counsel was ineffective for allowing Movant to make statements a t sentencing that were incriminating. (Dkt. No. 1, 10.) Movant claims he felt compelled to say something at sentencing because Counsel was "doing nothing to help the situation." (D k t. No. 1, 10.) Movant's claim has no merit because at the time he was making the s ta te m e n ts , his guilt had already been determined by his guilty plea, and therefore the s ta te m e n ts could not have been incriminatory. Movant has not shown prejudice or that any o f the statements were used against him to increase his sentence. This claim will be denied.

The plea agreement referenced is the first plea entered into on May 24, 2005, and withdrawn on November 2, 2005. (Dkt. No. 11, Attach. 14, at 5; File No. 1:04-CR-52, Dkt. Nos. 170, 198.)

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N . Ineffective assistance of Counsel for failing to move for a continuance at the time of th e plea M o v a n t claims that Counsel was ineffective for not moving for a continuance at the tim e of the plea due to "an untimely receipt of an exorbitant amount of Jencks material." (D k t. No. 1, 10.) Movant claims that he was unable to adequately review the material with C o u n s e l prior to trial. Id. Movant's claim is without merit for several reasons. First, Jencks m a te ria l, or evidence relied upon by the government witnesses who testify at trial, need not b e presented until after the witness testifies. 18 U.S.C. § 1500(a)-(b). The materials were th e re f o re early, and Counsel was not unreasonable for not moving for a continuance to re v iew the materials with Movant. Second, Movant has not shown how inadequate time to re v ie w the material with Counsel prejudiced Movant because Movant pleaded guilty and th e re was no trial. Counsel stated that the information provided "came as no surprise" and th a t he was unquestionably prepared to go to trial. (Dkt. No. 7, Attach. 1, 6.) Therefore, this c la im is contradicted by the record and will be denied. O. Ineffective assistance of Counsel for not investigating the defense thoroughly M o v a n t alleges that Counsel was ineffective because Counsel should have prepared a stronger defense including utilizing Movant's probation officer as a witness. (Dkt. No. 1, 1 0 .) Movant claims that "if counsel had called [Movant's] Parole Officer, Juanita Ball[,] to te s tif y, the outcome of the events would have been more favorable." (Dkt. No. 1, 10.) C o u n s e l claims that he could not have called Ms. Ball because it was clear after interviewing h e r that "she was no supporter of [Movant] and would not be any assistance to his defense 18

w h a ts o e v e r." (Dkt. No. 7, Attach. 1, 6.) In general, trial tactics are given great deference, a n d debatable trial tactics do not necessarily constitute ineffective assistance of counsel. S a m a ta r , 225 Fed. App'x. at 366. This Court finds that this was not an unreasonable trial ta c tic by Counsel. Moreover, because there was no trial, Movant was not prejudiced by C o u n s e l's failure to list Ms. Ball as a potential witness. The record shows that Counsel s ta te d he was prepared and ready for trial as of the final pre-trial hearing. (Tr. of Final PreT ria l Hr'g, 9-10.) This claim is without merit and will be denied. P . Ineffective assistance of Counsel for failing to review the pre-sentence report with M ovant T h e Court has addressed this claim in sections D, G, and K. This claim will be d e n ie d . Q. Ineffective assistance of Counsel for failing to object to the Court extending M o v a n t 's sentence for rehabilitation purposes M o v an t claims that Counsel was ineffective because he did not object to the Court's a p p lic a tio n of a longer sentence for the purposes of rehabilitation. (Dkt. No. 1, 11.) Movant is correct that a judge cannot extend incarceration for rehabilitation purposes, but he or she m a y consider factors such as the need for medical care and substance abuse treatment in d e te rm in in g a sentence. 18 U.S.C. § 3555(a). The record contradicts Movant's claim that h is sentence was extended for the purpose of rehabilitation. Movant was actually sentenced b e lo w the recommended maximum, partially due to Counsel's statements at sentencing that M o v a n t was an addict in need of treatment, and based on this Court's evaluation of all f a cto rs . (Sent. Tr., 24) (the Court recognized its "duty to impose a sentence sufficient but not g re a te r than necessary to comply with the purposes of Section 3553(a)."). Movant's sentence

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in c lu d e d evaluation for mental health and substance abuse treatment, which is an appropriate m e th o d of rehabilitation. (Sent. Tr., 26-27; 18 U.S.C. § 3553(a)(2)(D).) This claim is w ith o u t merit and will be denied. IV. The files and records in this case conclusively show that the Movant is entitled to no re lie f under § 2255. Accordingly no evidentiary hearing is required to resolve the merits of th e pending motion. For the reasons stated herein, Movant's motion to vacate, set aside or c o rr e c t his sentence pursuant to 28 U.S.C. § 2255 will be denied. Pursuant to 28 U.S.C. § 2253(c), the Court must also assess whether to issue a c e rtif ic a te of appealability to Movant. To warrant a grant of a certificate of appealability, M o v a n t "must demonstrate that reasonable jurists would find the district court's assessment o f the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 ( 2 0 0 0 ). The Sixth Circuit Court of Appeals has disapproved of the issuance of blanket d e n ia ls of a certificate of appealability. Murphy v. Ohio, 263 F.3d 466, 467 (6th Cir. 2001). R a th e r, the district court must "engage in a reasoned assessment of each claim" to determine w h e th e r a certificate is warranted. Id. Upon review of each claim, the Court does not believe th a t reasonable jurists would find its assessment of Movant's claims to be debatable or w r o n g . Accordingly, a certificate of appealability will also be denied as to each claim. A n order and judgment consistent with this opinion shall be entered.

Dated: November 8, 2010

/s/ Robert Holmes Bell ROBERT HOLMES BELL UNITED STATES DISTRICT JUDGE

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