Cole #15203-040 v. United States of America
Filing
14
OPINION ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
WILLIE COLE,
Movant,
File No. 1:11-cv-1309
v.
HON. ROBERT HOLMES BELL
UNITED STATES OF AMERICA,
Respondent.
/
OPINION
This matter is before the Court on Movant Willie Cole’s amended motion to vacate,
set aside, or correct his sentence, pursuant to 28 U.S.C. § 2255. (Dkt. No. 5.) For the reasons
that follow, his motion will be denied.
Movant was indicted on April 29, 2010, on five counts of Possession with Intent to
Distribute in violation of 21 U.S.C. § 841(a)(1), (b)(1)(c), one count of Possession with Intent
to Distribute in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(iii), and one count of Felon in
Possession of Firearms in violation of 18 U.S.C. §§ 921(a), 922(g)(1), 924(a)(2).
On September 7, 2010, Movant entered into a plea agreement. (File No. 1:10-cr-110,
Dkt. No. 16.) As part of the plea agreement, Movant waived his right to appeal. (Id.) In this
plea agreement, the 2010 United States Sentencing Guidelines (“Original Guidelines”)1 were
1
On August 3, 2010, Congress passed the Fair Sentencing Act of 2010 (“FSA”), Pub. L.
(continued...)
used to calculate the stipulated sentencing factors to be applied, resulting in a final offense
level of 29 and creating a sentencing range of 108-135 months. (Id.)
On, September 10, 2010, before the defendant entered his plea, all parties were given
notice that the Amended Guidelines would go into effect on November 1, 2010. Further, all
parties were informed by the Court that the Amended Guidelines would likely change the
sentencing range from what was stipulated in the plea agreement. (File No. 1:10-cr-110, Dkt.
No. 29, Tr. 2:13-22.) Movant’s counsel advised him that these changes would likely reduce
his sentence. (Id. at 3:12-17.) Last, before entering his plea, Movant stated that he entered into
the plea agreement intelligently, knowingly, and voluntarily, that he was satisfied with
counsel’s representation, and that he understood that he would be subject to the new
sentencing provisions. (Id. at 4-5.) Movant pleaded guilty to one count of Possession with
Intent to Distribute in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(iii) and one count of Felon
in Possession of Firearms. The remaining charges were dismissed.
On December 14, 2010, the Amended Guidelines were used at sentencing. While the
Amended Guidelines lowered the base offense level by four, it contained a new two-level
increase for operating a premises for the purpose of distributing a controlled substance
1
(...continued)
No. 111-20, which reduced the penalties for crack cocaine offenses. The FSA authorized the
United States Sentencing Commission to amend the 2010 United States Sentencing Guidelines to
give the reductions effect on an emergency basis. The Amended Guidelines went into effect
November 1, 2010. A year later, on November 1, 2011, the Amended Guidelines were made
retroactive. When referencing the differing Guidelines, the court will distinguish them as
“Original Guidelines” and “Amended Guidelines” respectively.
2
(“Premises Enhancement”). U.S.S.G. § 2D1.1(b)(12). This resulted in a final offense level of
27 and a sentencing range of 87-108 months – lower than the Original Guidelines’ range.
Movant was sentenced to 96 months of imprisonment. Movant did not appeal.
On December 15, 2011, Movant filed his § 2255 motion. (Dkt. No. 1.) He filed his
amended motion on March 15, 2011. (Dkt. No. 5.) Movant argues that the waiver in his plea
agreement is inapplicable to this motion for three reasons: (1) the waiver is invalid because,
prior to Movant entering his plea, Counsel did not inform Movant of the Premises
Enhancement or that the Amended Guidelines’ reductions were going to be made retroactive,
and thus the waiver was a product of ineffective counsel; (2) even if the waiver is valid, this
motion is beyond the scope of the waiver; and (3) enforcing the waiver would result in a
“miscarriage of justice.” Movant’s sole substantiative argument is that he was denied effective
counsel because his counsel failed to object to the Premises Enhancement on ex post facto
grounds. (Dkt. No. 5, Attach. 2.)
II.
A prisoner who moves to vacate his sentence under § 2255 must show that the sentence
was imposed in violation of the Constitution or laws of the United States, that the court was
without jurisdiction to impose such sentence, that the sentence was in excess of the maximum
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 error of constitutional
magnitude which had a substantial and injurious effect or influence on the guilty plea or the
3
jury’s verdict.” Humphress v. United States, 398 F.3d 855, 858 (6th Cir. 2005) (quoting Griffin
v. United States, 330 F.3d 733, 736 (6th Cir. 2003)). Non-constitutional errors are generally
outside the scope of § 2255 relief. United States v. Cofield, 233 F.3d 405, 407 (6th Cir. 2000).
A petitioner can prevail on a § 2255 motion alleging non-constitutional error only by
establishing 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.” Watson v. United States,
165 F.3d 486, 488 (6th Cir. 1999) (quoting United States v. Ferguson, 918 F.2d 627, 630 (6th
Cir. 1990) (internal quotations omitted)).
As a general rule, claims not raised on direct appeal are procedurally defaulted and may
not be raised on collateral review unless the petitioner shows either (1) “cause” and “actual
prejudice”; or (2) “actual innocence.” Massaro v. United States, 538 U.S. 500, 504 (2003);
Bousley v. United States, 523 U.S. 614, 621-22 (1998); United States v. Frady, 456 U.S. 152,
167-68 (1982). However, an ineffective assistance of counsel claim is not subject to the
procedural default rule. Massaro, 538 U.S. at 504. An ineffective assistance of counsel claim
may be raised in a collateral proceeding under § 2255, whether or not the petitioner could have
raised the claim on direct appeal. Id.
A court is required to grant a hearing to determine the issues and make findings of fact
and conclusions of law on a § 2255 motion “[u]nless the motion and the files and records of the
case conclusively show that the prisoner is entitled to no relief . . . .” 28 U.S.C. § 2255(b). No
evidentiary hearing is required if the petitioner’s allegations “cannot be accepted as true because
they are contradicted by the record, inherently incredible, or conclusions rather than statements
4
of fact.” Valentine v. United States, 488 F.3d 325, 333 (6th Cir. 2007) (quoting Arredondo v.
United States, 178 F.3d 778, 782 (6th Cir. 1999)). “If it plainly appears from the motion, any
attached exhibits, and the record of prior proceedings that the moving party is not entitled to
relief, the judge must dismiss the motion.” Rules Governing § 2255 Cases, Rule 4(b). Where the
judge considering the § 2255 motion also conducted the trial, the judge may rely on his or her
recollections of the trial. Blanton v. United States, 94 F.3d 227, 235 (6th Cir. 1996).
III.
Movant’s arguments go to two general issues: (1) the applicability of the waiver to this
motion; and (2) whether Counsel was ineffective for not objecting to the Premises Enhancement
or the use of the Amended Guidelines on ex post facto grounds. The Court will address each of
these issues in turn.
A. Waiver
The Court must first address whether Movant’s § 2255 motion is barred by the waiver
within his plea agreement:
[T]he Defendant knowingly waives the right to appeal any sentence that is at or
below the maximum guideline range. . . . The Defendant also waives the right to
challenge such a sentence and the manner in which it was determined in any
collateral attack, including but not limited to, a motion brought under Title 28,
United States Code, Section 2255 (except a challenge that goes to the validity of
his waiver, such as a claim that the waiver was involuntary or the product of
ineffective counsel).
(File No. 1:10-cr-110, Dkt. No. 16, at ¶ 11.) “A defendant may waive any right in a plea
agreement, including a constitutional right, if the waiver is made knowingly and voluntarily.”
United States v. Fleming, 239 F.3d 761, 763-64 (6th Cir. 2001). The Sixth Circuit has held, in
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particular, that a movant’s waiver by plea agreement of his right to directly appeal or collaterally
attack his sentence is generally enforceable. United States v. Calderon, 388 F.3d 197 (6th Cir.
2004); In re Acosta, 480 F.3d 421, 422 (6th Cir. 2007). To allow a defendant to attempt to claim
that the agreement is something different from what it unambiguously appears, would violate
established contract law standards. Baker v. United States, 781 F.2d 85, 90 (6th Cir. 1986);
Ramos v. Rogers, 170 F.3d 560, 563 (6th Cir. 1999).
1. Invalidity of Waiver
A waiver of collateral attack may nonetheless be unenforceable:
[I]n cases where a defendant argues that his plea was not knowing or voluntary,
or was the product of ineffective assistance of counsel[,] it would be entirely
circular for the government to argue that the defendant has waived his right to
an appeal or a collateral attack when the substance of his claim challenges the
very validity of the waiver itself.
Acosta, 480 F.3d at 422 (internal citation omitted). Movant claims that his decision to enter into
a plea agreement was the “product of ineffective assistance of counsel,” and that his waiver of
collateral attack is consequently inapplicable to this claim.
When ineffective assistance of counsel allegations are raised in the context of a plea
process, the two-pronged analysis from Strickland v. United States, 466 U.S. 688 (1984), applies
with a minor revision. Hill v. Lockhart, 474 U.S. 52, 58 (1985); Nagi v. United States, 90 F.3d
130, 135-36 (6th Cir. 1996). The first prong of Strickland remains virtually the same – whether
counsel fell below an objective standard of reasonableness. Hill, 474 U.S. at 58. The second
prong, or “prejudice” requirement, focuses on whether counsel’s constitutionally ineffective
performance affected the outcome of the plea process. Id. at 59. Movant must show a reasonable
6
probability that, but for counsel’s errors, he would have insisted on going to trial. Id.; Roe v.
Lucio Flores-Ortega, 528 U.S. 470 (2000). The Court does not need to “address both
components of the inquiry if the defendant makes an insufficient showing on one. . . . If it is
easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, [then]
that course should be followed.” Strickland, 466 U.S. at 697.
Here, Movant claims that his plea agreement was not knowingly entered into because
Counsel did not explain the new Premises Enhancement. (Dkt. No. 5, Attach. 2 at 31.) However,
Movant made no showing that, but for Counsel’s alleged errors in explaining the Amended
Guidelines, Movant would have insisted on going to trial. As such, Movant has failed to show
how he has been prejudiced by counsel. Even so, failure to explain every nuance of the Amended
Guidelines, before they were published, would not fall below an objective standard of reasonableness.
a) First Prong: Objectively Unreasonable
In Magana v. Hofbauer, the court found ineffective assistance of counsel when the
defense counsel’s erroneous advice concerning sentence exposure “fell below an objective
standard of reasonableness under prevailing professional norms.” 263 F.3d 542, 550 (6th Cir.
2001). The Sixth Circuit has held as follows:
A criminal defendant has a right to expect at least that his attorney will review
the charges with him by explaining the elements necessary for the government
to secure a conviction, discuss the evidence as it bears on those elements, and
explain the sentencing exposure the defendant will face as a consequence of
exercising each of the options available. In a system dominated by sentencing
guidelines, we do not see how sentence exposure can be fully explained without
completely exploring the ranges of penalties under likely guideline scoring
scenarios, given the information available to the defendant and his lawyer at the
time.
7
Smith v. United States, 348 F.3d 545, 553 (6th Cir. 2003). In Magana, the defense counsel
demonstrated “complete ignorance of the relevant law under which his client was charged” and
gave “gross misadvice.” Magana, 263 F.3d at 548.
While “[f]amiliarity with the structure and basic content of the Guidelines . . . has become
a necessity for counsel who seek to give effective representation,” United States v. Merritt, 102
F. App’x 303, 308 (4th Cir. 2004) (quoting United States v. Day, 969 F.2d 39, 43 (3d Cir. 1992),
plea agreements are generally held to be knowing and voluntary notwithstanding “a defense
attorney’s erroneous calculation and prediction of the sentencing guidelines.” United States v.
Hicks, 4 F.3d 1358, 1363 n.3 (6th Cir. 1993) (citing United States v. Stephens, 906 F.2d 251, 254
(6th Cir. 1990)). Failure of defense counsel to accurately predict a sentence does not constitute
defective performance. See Sullivan v. United States, 11 F.3d 573, 576 (6th Cir. 1993); United
States v. Khouri, 169 F. App’x 459, 464 (6th Cir. 2006); Stephens, 906 F.2d at 254 (holding that
“[t]he fact that the range was . . . estimated incorrectly by [defendant’s] counsel[ ]does not
justify withdrawing his plea”).
Additionally, in reviewing whether counsel was reasonable, the Supreme Court has held
as follows:
Judicial scrutiny of counsel’s performance must be highly deferential. . . . A fair
assessment of attorney performance requires that every effort be made to
eliminate the distorting effects of hindsight, to reconstruct the circumstances of
counsel’s challenged conduct, and to evaluate the conduct from counsel’s
perspective at the time. . . . [A] court deciding an actual ineffectiveness claim
must judge the reasonableness of counsel’s challenged conduct on the facts of the
particular case, viewed as of the time of counsel’s conduct.
8
Strickland, 466 U.S. at 689-90. Furthermore, Movant cannot claim his plea is invalid because
of changes in the law. See United States v. Bradley, 400 F.3d 459, 464-66 (6th Cir. 2005) (“[A]
voluntary plea of guilty intelligently made in light of the then applicable law does not become
vulnerable because later judicial decisions indicate that the plea rested on a faulty premise.”)
(quoting Brady v. United States, 397 U.S. 742, 757 (1970)).
Movant claims that it was unreasonable for Counsel to not know and warn Movant about
the Premises Enhancement in the Amended Guidelines or that the Amended Guidelines’
reductions were going to be made retroactive the following year. (Dkt. No. 5, Attach. 2, 31)
However, the Fair Sentencing Act of 2010, Pub. L. 111-220, was signed into law only a month
prior to the plea agreement, and it was reasonable for Counsel to not be fully aware of the
nuances of the new act. Moreover, at the time of the plea agreement, the Amended Guidelines
were still being revised and were not to take effect for another two months.2 Further, it would
have been impossible for Counsel to anticipate that Congress was going to make the changes
retroactive the following year. See Sistrunk v. Vaughn, 96 F.3d 666, 670-71 (3d Cir. 1996) (“In
making litigation decisions, there is no general duty on the part of defense counsel to anticipate
changes in the law.”) (internal quotations omitted).
In this case, Counsel informed Movant that, under the Original Guidelines, his
sentencing range would be between 108-135 months, but that the sentencing range would
2
The supplement to the Guidelines, which contained the Fair Sentencing Act
amendments – including the Premises Enhancement – was released on October 18, 2010, over a
month after Movant entered the plea agreement. U.S.S.G. Supplement Memo, available at
http://www.ussc.gov/Guidelines/2010_guidelines/Manual_PDF/2010_Guidelines_Manual_Suppl
ement.pdf.
9
“likely be lower” after the Amended Guidelines went into effect. (File No.1:10-cr-110, Dkt. No.
29, Tr. 2:13-22.) Given the circumstances, it would be unreasonable to require Counsel to give
a more accurate prediction because the Amended Guidelines had not been written at the time
of the plea agreement. Under the Amended Guidelines, Movant’s recommended range was 85108 months, and he was sentenced to 96 months. (File No. 1:10-cr-110, Dkt. No. 30.) Counsel’s
advice that the sentencing range would “likely be lower” under the Amended Guidelines in
comparison to the Original Guidelines was factually true and objectively reasonable.
b) Second Prong: Prejudice
To establish prejudice, the movant must show a reasonable probability that counsel’s
errors affected the outcome of the proceeding. Strickland, 466 U.S. at 691-96. “In the context
of an allegedly involuntary guilty plea, prejudice can be demonstrated by showing that ‘but for
counsel’s errors, [the movant] would not have pleaded guilty.’” Anderson v. Carlton Hill, 150
F. App’x 499, 501 (6th Cir. 2005) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)).
Movant has not made any showing that but for Counsel’s errors, Movant would not have
pleaded guilty. Furthermore, Counsel did not mislead or prejudice Movant by saying that his
sentence would “likely be lower” than what was stipulated in the plea agreement because it was
factually accurate. However, even if Counsel provided misleading information to Movant, it
was “remedied by the plea colloquy.” Boyd v. Yukins, 9 F. App’x 699, 703, 705 (6th Cir. 2004).
Prior to the plea hearing, Movant was given the plea agreement itself which stated that the
stipulated sentencing guidelines could change and that the Court was not bound by the
agreement in sentencing. (File No. 1:10-cr-110, Dkt. No. 16.) At the plea colloquy, the Court
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also explicitly told Movant that the stipulated sentencing guidelines would change because of
the Amended Guidelines. (File No. 1:10-cr-110, Dkt. No. 29, Tr. 2:13-22.) Movant responded
that he understood those warnings. (Id. at 4-5.) Thus, even assuming that Counsel provided
inaccurate information, “the trial court remedied any misconception by informing [Movant] of
the potential maximum and minimum terms of imprisonment.” Boyd, 99 F. App’x at 703.
Movant’s allegation that he did not know the possible sentencing range, or that the Amended
Guidelines would be applied, is contradicted by the record.3 Movant 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,” and therefore Movant was not
prejudiced by Counsel’s estimations. See Stephens, 906 F.2d at 254.
Movant has failed to show that Counsel was objectively unreasonable or that he was
prejudiced. Thus the plea agreement, and the waiver it contained, are valid.
2. Scope of Waiver
Alternatively, Movant claims his § 2255 motion is outside the scope of the waiver
because: (1) the Premises Enhancement did not exist when the waiver was entered and thus
could not have been contemplated by the waiver; (2) the waiver allowed parties “to argue
additional adjustments and departures” and thus gives Movant the right to argue the merits
of those adjustments or departures on appeal; and (3) the waiver is ambiguous because it
3
See Ramos v. Rogers, 170 F.3d 560, 566 (6th Cir. 1999) (“If we were to rely on Ramos’s
alleged subjective impression rather than the record, we would be rendering the plea colloquy
process meaningless, for any convict who alleges that he believed the plea bargain was different
from that outlined in the record could withdraw his plea, despite his own statement during the
plea colloquy.”).
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does not expressly exclude collateral attack on ex post facto grounds.4 (Dkt. No. 5, Attach.
2, 32-35.)
The plea agreement unambiguously states that Movant waives all rights to make a
motion under 28 U.S.C. § 2255 with the exception of challenges to the validity of the waiver.
(File No. 1:10-cr-110, Dkt. No. 16, 9-10.) The use of the words “any” and “all” in the waiver
makes the waiver clear and unlimited in scope. United States v. Calderon, 388 F.3d 197, 199
(6th Cir. 2004). The fact that the plea agreement pre-existed the Premise Enhancement, is
irrelevant. As per the waiver, Movant would maintain the right to challenge the sentence
only if it exceeded the statutory maximum or the sentence was based upon an
unconstitutional factor. (File No. 1:10-cr-110, Dkt. No. 16, 9-10.) The sentence was 96
months, within the 87-108 month range of the Amended Guidelines and under the 108-135
month range of the Original Guidelines stipulated to in the plea agreement. Further, the right
to seek an adjustment at sentencing does not preserve the right to appeal that adjustment.
Calderon, 388 F.3d at 200. Therefore, Movant has waived his right to collaterally attack his
sentence or conviction.
3. Enforcement of Waiver
Last, Movant claims that even if this motion is barred by the waiver, enforcing the
4
Movant cites United States v. Bowman, 634 F.3d 357 (6th Cir. 2011) in support of his
claim of ambiguity. However Bowman is not relevant to this case. The issue in Bowman was
whether or not the waiver language prevented a challenge of the application of U.S.S.G. § 5G1.3
to allow a federal sentence to run consecutively to a state sentence. This is not the issue in this
case.
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waiver would result in a “miscarriage of justice.” (Dkt. No. 5, Attach. 2, at 36.) Presumably
Movant is relying on the standard, put forth in Watson v. United States, 165 F.3d 486, 488
(6th Cir. 1999), for a § 2255 motion alleging non-constitutional error. However, Movant
fails to explain how enforcing this waiver will result in a miscarriage of justice or a loss of
substantial rights. This allegation is conclusatory and not supported by the record or facts,
thus it is without merit. See Valentine v. United States, 488 F.3d 325, 333 (6th Cir. 2007).
Further, because Movant was sentenced within the guideline range, the sentence is
presumptively reasonable, and Movant is not denied a substantive right by being barred from
appealing a reasonable sentence. See United States v. Duane, 533 F.3d 441, 453 (6th Cir.
2008); United States v. Williams, 436 F.3d 706, 708 (6th Cir. 2006).
Because Movant knowingly, intelligently, and voluntarily entered into the plea
agreement, the waiver contained within the plea agreement is valid. The waiver only allows
collateral attacks going to the validity of the plea agreement. Thus the waiver bars Movant’s
substantive claim.
B. Ex Post Facto
Even if the waiver was not valid, Movant’s claim that Counsel was ineffective for
failing to object to the Premises Enhancement on ex post facto grounds is without merit.
“The purpose of the [Ex Post Facto] [C]lause is to protect citizens against a lack of fair
notice and governmental restraint when the legislature increases punishment beyond what
was prescribed when the crime was consummated.” Duane, 533 F.3d at 445. “[A] statute
violates the Clause if it is both retrospective and more onerous that the law in effect on the
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date of the offense.” Weaver v. Graham, 450 U.S. 24, 30-31 (1981).
While the Amended Guidelines – and the Premises Enhancement – were
retrospective, they were not more onerous than the Original Guidelines which were in place
at the time the crime was committed. Movant relies on the argument that he could have been
sentenced under the Original Guidelines, received the Amended Guidelines’ reduction
retroactively, and avoided the Amended Guidelines’ Premises Enhancement. (Dkt. No. 5,
Attach. 2, 22-27.) Under this theory, Movant claims he would have received a sentencing
range of 70-87 months, rather than the 87-108 months he was sentenced under or the 108135 month range the Original Guidelines provided. (Id.) Movant claims that Counsel was
ineffective for not knowing that the Amended Guidelines’ reductions were going to be made
retroactive and thus failing to make an objection to their use on ex post facto grounds. (Id.
at 6-27.) This theory fails for several reasons.
Most importantly, the Amended Guidelines’ reduction would not have been applied
without also invoking the Premises Enhancement. “The Guidelines Manual in effect on a
particular date shall be applied in its entirety.” U.S.S.G. § 1B1.11(b)(2). “Under this one
book rule, courts shall not apply one guideline section from one edition of the Guidelines
Manual and another guidelines section from another edition.” Duane, 533 F.3d at 447 (citing
U.S.S.G. § 1B1.11(b)(2)). Thus, no matter when the Amended Guidelines’ reduction was
applied, whether initially or retrospectively, the Premises Enhancement would have also been
applied at that time. Movant would not have had a sentencing range of 70-87 months. The
14
only ranges available to the court were the 108-135 month range of the Original Guidelines
and the 87-108 month range of the Amended Guidelines.
Further, the Amended Guidelines were the appropriate guidelines to determine
Movant’s sentence. “Guideline policy statements provide that a sentencing court must apply
the version of the Guidelines in effect at the time of sentencing unless doing so would violate
the Ex Post Facto Clause.” Id. (citing U.S.S.G. § 1B1.11(a), (b)(1)). The Amended
Guidelines went into effect on November 1, 2010, and the Movant was sentenced on
December 14, 2010. Because the 87-108 month range of the Amended Guidelines is not
more onerous than the 108-135 month range of the Original Guidelines, applying the
Amended Guidelines did not violate the Ex Post Facto Clause.
As such, Counsel was not ineffective for failing to object to the use of the Amended
Guidelines. First, Movant’s premise that Counsel was unreasonable for not predicting that
Congress would make the changes retroactive the following year is baseless. See Sistrunk
v. Vaughn, 96 F.3d 666, 670-71 (3d Cir. 1996). Second, even had Counsel predicted that the
changes would be made retroactive, he is not required to raise futile objections, which any
objection would have been. McQueen v. Scroggy, 99 F.3d 1302, 1328 (6th Cir. 1996); see
also United States v. Johnson, 9 F. App’x 373, 374 (6th Cir. 2001). Because the ex post facto
claim was not valid, counsel was not unreasonable nor Movant prejudiced as a result of
Counsel not bringing the claim. United States v. Martin, 45 F. App’x 378, 381 (6th Cir.
2002) (“Failure of trial counsel to raise wholly meritless claims cannot be ineffective
15
assistance of counsel.”) (citing Strickland, 466 U.S. at 686-87).
IV.
The files and records in this case conclusively show that Movant is entitled to no
relief under § 2255. Accordingly, no evidentiary hearing is required to resolve the merits of
the pending motion. For the reasons stated, Movant’s motion to vacate, set aside, or correct
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
certificate of appealability to Movant. To warrant a grant of a certificate of appealability,
Movant “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). The Sixth Circuit Court of Appeals has disapproved of the issuance of blanket
denials of a certificate of appealability. Murphy v. Ohio, 263 F.3d 466, 467 (6th Cir. 2001).
Rather, the district court must “engage in a reasoned assessment of each claim” to determine
whether a certificate is warranted. Id. Upon review of each claim, the Court does not believe
that reasonable jurists would find its assessment of Movant’s claims to be debatable or
wrong. Accordingly, a certificate of appealability will also be denied as to each claim.
An order and judgment consistent with this opinion shall be entered.
Dated: September 27, 2012
/s/ Robert Holmes Bell
ROBERT HOLMES BELL
UNITED STATES DISTRICT JUDGE
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