Antony #11073-040 v. United States of America
OPINION; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
DAVID CHRISTIAN ANTONY,
Case No. 1:12-CV-1040
(Criminal Case No. 1:01-CR-236-1)
UNITED STATES OF AMERICA,
HON. GORDON J. QUIST
Movant, David Antony, has filed a motion to vacate, set aside, or correct his sentence
pursuant to 28 U.S.C. § 2255. The Government has filed a response, and Antony has filed a reply.
After reviewing the motion, briefs, and pertinent portions of the record, the Court concludes that
Antony is not entitled to relief, and his motion will be denied.
I. PROCEDURAL HISTORY
On or about October 2, 2002, Antony pled guilty to a Superseding Information charging him
with manufacture of an unspecified amount of marijuana in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(D) (Count 1), and being a felon in possession of firearms, in violation of 18 U.S.C. §
922(g)(1) (Count 2). He also admitted to having a prior felony drug conviction, which increased the
maximum penalty on Count 1 to 10 years of incarceration. The maximum penalty on Count 2 was
also 10 years. In February 2003, the Court accepted Antony’s guilty plea and sentenced him to 120
months on Count 1 and 24 months on Count 2, for a total of 144 months, to be served consecutively.
The Court also sentenced him to a supervised release term of four years on Count 1 and three years
on Count 2, to run concurrently. This sentence reflected a downward departure pursuant to U.S.S.G.
§ 5K1.1 for substantial assistance in the prosecution of others. In 2003, the Court also granted a
Rule 35(b) motion, reducing Antony’s sentence from 120 months to 84 months on Count 1, to run
consecutively with 24 months on Count 2, for a total of 108 months. The Court did not alter the
length of supervised release.
On June 19, 2012, Antony pled guilty to violations of his conditions of supervised release
related to possession and use of marijuana and methamphetemine, and failure to appear for drug
testing. The Court revoked Antony’s supervised release and imposed a sentence of 24 months on
Count 1 and three months on Count 2, to be served consecutively, for a total of 27 months. The
Court also sentenced Antony to an additional 18 months of supervised release. Judgment was
entered on June 20, 2012, and Antony did not appeal. On September 26, 2012, Antony filed this
motion to vacate, set aside, or correct his supervised release violation sentence.
To obtain relief under 28 U.S.C. § 2255, a movant must show that his “sentence was imposed
in violation of the Constitution or laws of the United States, or that the court was without jurisdiction
to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or
is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). “To prevail on a § 2255 motion
alleging constitutional error, the petitioner must establish an error of constitutional magnitude which
had a substantial and injurious effect or influence on the proceedings.” Watson v. United States, 165
F.3d 486, 488 (6th Cir. 1999) (citing Brecht v. Abrahamson, 507 U.S. 619, 637–38, 113 S. Ct. 1710,
1721–22 (1993)). “To prevail on a § 2255 motion alleging a non-constitutional error, the petitioner
must establish a fundamental defect which inherently results in a complete miscarriage of justice,
or an error so egregious that it amounts to a violation of due process.” Id. (internal quotation marks
and citations omitted).
In this case, Antony argues that (1) his sentence is in excess of the maximum sentence
authorized by law, (2) the Court failed to consider the factors listed in 18 U.S.C. § 3553(a) in
imposing his sentence, and (3) he received ineffective assistance of counsel.
A. Excessive Sentence
Antony first argues that because he was convicted of a Class C felony, the maximum
sentence the Court could impose was 24 months. Specifically, he argues that 18 U.S.C. § 3583(e)(3)
“applies in the aggregate on sentences imposed on multiple revocations of defendant’s supervised
release from an original conviction rather than to each revocation.” (Docket no. 1, Page ID 1.)
Antony’s argument lacks merit.
Section 3583(e)(3) allows a court to revoke a term of supervised release and require a
defendant to serve in prison all or part of the term of supervised release without credit for time
previously served on post-release supervision if the Court finds by a preponderance of the evidence
that the defendant violated a condition of supervised release, except that a defendant whose term is
revoked may not be required to serve more than two years in prison for a class C felony. See 18
U.S.C. § 3583(e)(3). A court may impose a sentence for each count, and the sentences may run
consecutively. See id; 18 U.S.C. § 3584(a); United States v. Cordova, 461 F.3d 1184, 1189 (10th
In this case, the Court sentenced Antony to the maximum sentence for a Class C
violation—two years—on Count 1 and three months on Count 2, to run consecutively. The Court
was authorized to sentence him to up to 24 months for each count. Therefore, the Court did not
exceed its authority in imposing Antony’s sentence.
B. Additional Supervised Release
Antony also argues that the Court committed “clear error” by sentencing him to an additional
18-month term of supervised release. Antony’s argument fails as a matter of law.
Section 3583(h) provides:
When a term of supervised release is revoked and the defendant is required to serve a term
of imprisonment, the court may include a requirement that the defendant be placed on a term
of supervised release after imprisonment. The length of such a term of supervised release
shall not exceed the term of supervised release authorized by statute for the offense that
resulted in the original term of supervised release, less any term of imprisonment that was
imposed upon revocation of supervised release.
18 U.S.C. § 3583(h).
In this case, the minimum length of supervised release required by statute for Count 1 is “at
least 4 years,” 21 U.S.C. 841(b)(1)(D), and Count 2 is three years, 18 U.S.C. §§ 3559(a)(3),
3583(b)(2). Therefore, in accordance with § 3583(h), the Court was authorized to impose an
additional term of supervised release of up to life less 24 months for Count 1 and 36 months less 3
months (or 33 months) for Count 2. Thus, the Court’s sentence of 18 additional months of
supervised release did not violate § 3583(h).
C. Sentencing Factors
Antony also argues that the Court “fail[ed] to demonstrate on the record it’s [sic]
consideration of the factors listed in 18 U.S.C. § 3583(a).” (Docket no. 1, Page ID 2.)
“[I]n determining whether to include a term for supervised release, and, if a term of
supervised release is to be included, in determining the length of the term and the conditions of
supervised release, [a court] shall consider the factors set forth in section 3553(a)(1), (a)(2)(B),
(a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7).” 18 U.S.C. § 3583(c). The § 3553 factors
(1) the nature and circumstances of the offense and the history and characteristics of the
(2) the need for the sentence imposed-***
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical
care, or other correctional treatment in the most effective manner;
(4) the kinds of sentence and the sentencing range . . .
(5) any pertinent policy statement
(6) the need to avoid unwarranted sentence disparities among defendants with similar
records who have been found guilty of similar conduct; and
(7) the need to provide restitution to any victims of the offense.
18 U.S.C. § 3553. “[A] reasonable sentence based on consideration of the [§ 3553] factors does not
require a rote listing.” United States v. Collington, 461 F.3d 805, 809 (6th Cir. 2006). “[T]his Court
does not require ‘the ritual incantation of these factors to affirm a sentence.’” Id. (quoting United
States v. Williams, 436 F.3d 706, 708–09 (6th Cir. 2006)). “We have held that ‘we may conclude
that a sentence is unreasonable when the district judge fails to “consider” the applicable guidelines
range or neglects to “consider” the other factors listed in 18 U.S.C. § 3553(a), and instead simply
selects what the judge deems an appropriate sentence without such consideration.’” Id. (quoting
United States v. Webb, 403 F.3d 373, 383 (6th Cir. 2005)).
At Antony’s supervised release revocation hearing and sentencing, the Court identified the
following factors that it considered in imposing a sentence of 27 months of incarceration and 18
additional months of supervised release: policy statements issued by the Sentencing Commission,
the applicable guideline range, the nature and circumstances of the offenses and violations, and the
need for the sentence imposed. The Court explicitly noted Antony’s prior success on supervised
release and sentenced Antony to the amount of time the Court deemed necessary for Antony to “get
ahold” of his marijuana addiction—a sentence that included a recommendation for participation in
a drug treatment program and required drug testing during supervised release. Thus, the Court
adequately considered the relevant sentencing factors in arriving at its sentence.
D. Ineffective Assistance of Counsel
Finally, Antony argues that he received ineffective assistance of counsel because (1) his
counsel failed to object to a sentence in excess of 24 months, and (2) his counsel failed to appeal the
The Supreme Court in Strickland v. Washington articulated the standard for evaluating
ineffective assistance of counsel claims:
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. Second, the defendant must
show that the deficient performance prejudiced the defense. This requires showing that
counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result
is reliable. Unless a defendant makes both showings, it cannot be said that the conviction
. . . resulted from a breakdown in the adversary process that renders the result unreliable.
466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); see also Ludwig v. United States, 162 F.3d 456,
458 (6th Cir. 1998). In order to show prejudice from a failure to object, a defendant must show that
“‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.’” Stone v. United States, 258 F. App’x 784, 787 (2007)
(quoting Strickland, 466 U.S. at 694, 104 S. Ct. at 2068).
The two-part Strickland test also applies to claims of ineffective assistance of counsel for
failure to file a notice of appeal. Roe v. Flores-Ortega, 528 U.S. 470, 477, 120 S. Ct. 1029, 1034
(2000). “[C]ourts 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,’ and ‘[j]udicial scrutiny of counsel’s
performance must be highly deferential.’” Id. (quoting Strickland, 466 U.S. at 689, 690, 104 S. Ct.
at 2065, 2066). The Roe Court rejected a per se rule that an attorney must always file an appeal
unless specifically told otherwise. Rather, the Court divided failures to file notices of appeal into
three categories: when the defendant (1) specifically requests that his counsel file an appeal, (2)
explicitly instructs his counsel not to file an appeal, and (3) does not clearly convey his preference.
When a defendant specifically requests an appeal, “a lawyer who disregards specific instructions
from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable,”
and the defendant “is entitled to [a new] appeal without showing that his appeal would likely have
had merit.” 528 U.S. at 477, 120 S. Ct. at 1035 (internal citation and quotation marks omitted).
When a defendant expressly instructs his counsel not to file an appeal, the defendant has no claim
of ineffective assistance of counsel. Id. When a defendant does not clearly convey his preference,
the Supreme Court looks to whether counsel “consulted” with the defendant about the benefits and
drawbacks of bringing an appeal. Id. at 478, 120 S. Ct. at 1035. Consultation occurs when the
attorney “advis[es] the defendant about the advantages and disadvantages of taking an appeal, and
mak[es] a reasonable effort to discover the defendant’s wishes.” Id. If consultation has occurred,
then “[c]ounsel performs in a professionally unreasonable manner only by failing to follow the
defendant’s express instructions with respect to an appeal.” Id. at 478, 120 S. Ct. at 1036. If, on the
other hand, counsel failed to consult with his client, then the court must address whether the failure
to consult, by itself, is indicative of deficient performance. See id. Even if counsel’s failure to
consult was deficient, the defendant “must demonstrate that there is a reasonable probability that,
but for counsel’s deficient failure to consult with him about an appeal, he would have timely
appealed.” Id. at 484, 120 S. Ct. at 1038.
Regarding Antony’s first argument, Antony has not shown that his attorney’s failure to
object to his 27-month sentence was an error “so serious” that his counsel was not functioning as
the “‘counsel’ guaranteed [Antony] by the Sixth Amendment.” Strickland, 466 U.S. at 687, 104 S.
Ct. at 2064. Moreover, even if Antony were to establish that his counsel’s performance were
deficient, Antony has not shown that he was prejudiced—in other words, he has not demonstrated
a reasonable probability that the result of the proceeding would have been different. See Stone, 258
F. App’x at 787. As the above analysis illustrates, the Court did not err in sentencing Antony to 27
months, instead of 24 months, of incarceration, so his counsel’s objection would not have changed
the outcome of the proceeding.
Antony also argues that his attorney failed to appeal despite that Antony “specifically
instructed” counsel to appeal. However, Antony has failed to present any evidence in support of his
allegation. Absent a sworn statement of facts, Antony has made a bald allegation of ineffective
assistance of counsel. The burden is on Antony to establish that he gave his attorney express
instructions to appeal and his attorney failed to do so. See Watson, 165 F.3d at 488 (citing Brecht,
507 U.S. at 637–38, 113 S. Ct. 1721–22). However, even if this Court were to consider Antony’s
claim, Antony’s claim lacks merit. The Government has introduced evidence from Antony’s
counsel, including an affidavit from Antony’s counsel, that Antony did not request an appeal. There
is no evidence that Antony requested that his counsel file an appeal, and evidence supports that
Antony’s counsel consulted with Antony regarding Antony’s right to appeal and the procedure for
filing a notice of appeal. Therefore, Antony’s argument lacks merit.
III. NO CERTIFICATE OF APPEALABILITY
Under 28 U.S.C. § 2253(c)(2), the Court must also determine whether a certificate of
appealability should be granted. A certificate should issue if Antony has demonstrated a “substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The Sixth Circuit has
disapproved 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. at 467. Each issue must be considered
under the standards set forth by the Supreme Court in Slack v. McDaniel, 529 U.S. 473, 120 S. Ct.
1595 (2000). Murphy, 263 F.3d at 467. Consequently, this Court has considered Antony’s claim
under the Slack standard.
Under Slack, 529 U.S. at 484, 120 S. Ct. at 1604, to warrant a grant of the certificate, “[t]he
petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.” The Court finds that reasonable jurists could not find that
this Court’s dismissal of Antony’s claims regarding an excessive sentence, failure to apply the §
3553(a) factors, or ineffective assistance of counsel was debatable or wrong. Therefore, the Court
will deny Antony a certificate of appealability.
For these reasons, Antony’s § 2255 Motion (docket no. 1) will be dismissed. In addition,
the Court will deny Antony a certificate of appealability because he has failed to make a “substantial
showing of a denial of a constitutional right.”
A separate order will issue.
Dated: July 8, 2013
/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE
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