Parker v. USA

Filing 5

MEMORANDUM AND OPINION. Signed by District Judge Travis R McDonough on 3/7/25. (CNC) Mailed to Jamaal Parker (CNC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT CHATTANOOGA
UNITED STATES OF AMERICA,
v.
JAMAAL PARKER

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Case No. 1:24-cv-381
Judge Travis R. McDonough
Magistrate Judge Michael J. Dumitru

MEMORANDUM OPINION
Before the Court is Petitioner Jamaal Parker’s motion to vacate his sentence pursuant to
28 U.S.C. § 2255(f) (Doc. 1; Doc. 484 in Case No. Case No. 1:19-cr-46). For the following
reasons, Petitioner’s motion (id.) will be DENIED.
I.

BACKGROUND
On June 8, 2022, a jury found Petitioner guilty of:
1. Conspiracy to distribute cocaine and crack (21 U.S.C. §§ 841(a)(1), (b)(1)(A),
(b)(1)(B), and 21 U.S.C. § 846);
2. Maintaining a place for the purposes of distributing cocaine and crack cocaine
(21 U.S.C. § § 856(a)(1), 856(b), and 18 U.S.C. § 2); and
3. Possessing a firearm in furtherance of a drug trafficking crime (18 U.S.C. §
924(c)(1)(A)).

(See Docs. 419, 455 in Case No. 1:19-cr-46.)1
At Petitioner’s sentencing hearing, the Court calculated his guidelines range to be 188–
235 months imprisonment. (See Doc. 457, at 12 in Case No. 1:19-cr-46.) The Court noted that
with the 60-month mandatory minimum sentence for the § 924 conviction, Petitioner’s effective
guideline range was 248–295 months. (Id.) The Court imposed a within-guidelines sentence of

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The jury found Defendant not guilty of money laundering. (See Doc. 419.)

290 months; 230 months for each cocaine-distribution charge, to be run concurrently, and 60
months for the gun charge, to be run consecutively. (See Doc. 455 at 2; Doc. 457, at 41, 46–47
in Case No. 1:19-cr-46.)
Petitioner’s counsel, Howard Anderson timely filed a notice of appeal, challenging “both
the procedural and substantive reasonableness of [Petitioner’s] sentence.” (Doc. 476, at 15 in
Case No. 1:19-cr-46.) Anderson argued that the Court had “failed to address several mitigation
arguments,” including that Petitioner’s § 924 mandatory minimum sentence would make his
overall sentence unusually harsh. (Id. at 16.) The Sixth Circuit rejected Petitioner’s argument
and affirmed the judgment of the Court. (See id. at 17.) On May 3, 2024, Anderson filed a
petition for certiorari with the Supreme Court. (See Doc. 480 in Case No. 1:19-cr-46.) The
Supreme Court denied certiorari on June 10, 2024. (See Supreme Court Case No. 23-7398.)
On December 9, 2024, Petitioner moved to vacate his sentence pursuant to 28 U.S.C. §
2255(f). (Doc. 1.) Petitioner argues that his counsel was ineffective because he “fail[ed] to file a
petition for certiorari to the United States Supreme Court in light of Dean v. United States, 581
U.S. 62 (2017), which authorized district courts to consider the harshness of § 924(c)’s
mandatory minimum sentences when determining sentences on other counts.” (Id. at 14.) The
Government opposes Petitioner’s motion. (Doc. 4.)
II.

STANDARD OF LAW
To obtain relief under 28 U.S.C. § 2255, a petitioner must demonstrate: “(1) an error of

constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of
fact or law . . . so fundamental as to render the entire proceeding invalid.” Short v. United States,
471 F.3d 686, 691 (6th Cir. 2006) (quoting Mallett v. United States, 334 F.3d 491, 496–97 (6th
Cir. 2003)). He “must clear a significantly higher hurdle than would exist on direct appeal” and

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establish a “fundamental defect in the proceedings which necessarily results in a complete
miscarriage of justice or an egregious error violative of due process.” Fair v. United States, 157
F.3d 427, 430 (6th Cir. 1998).
Section 2255(f) imposes a one-year limitations period on all petitions for collateral relief
under § 2255 running from the latest of: (1) the date when the judgment of conviction becomes
final; (2) the date when the impediment to making a motion created by governmental action in
violation of the Constitution or laws of the United States is removed, if the movant was
prevented from making a motion by such governmental action; (3) the date when the right
asserted was initially recognized by the Supreme Court, if that right has been newly recognized
by the Supreme Court and made retroactively applicable to cases on collateral review; or (4) the
date when the facts supporting the claim or claims presented could have been discovered through
the exercise of due diligence. 28 U.S.C. § 2255(f). “[A] conviction becomes final at the
conclusion of direct review.” Johnson v. United States, 246 F.3d 655, 657 (6th Cir. 2001). In
the case of defendants who file a direct appeal but do not file a petition for certiorari with the
Supreme Court “[Section] 2255’s one-year limitation period starts to run when the time for
seeking such review expires.” Clay v. United States, 537 U.S. 522, 532 (2003)
In ruling on a § 2255 petition, the Court must also determine whether an evidentiary
hearing is necessary. “An evidentiary hearing is required unless the record conclusively shows
that the petitioner is entitled to no relief.” Martin v. United States, 889 F.3d 827, 832 (6th Cir.
2018) (quoting Campbell v. United States, 686 F.3d 353, 357 (6th Cir. 2012)); see also 28 U.S.C.
§ 2255(b). “The burden for establishing entitlement to an evidentiary hearing is relatively light,
and where there is a factual dispute, the habeas court must hold an evidentiary hearing to
determine the truth of the petitioner’s claims.” Martin, 889 F.3d at 832 (quoting Turner v.

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United States, 183 F.3d 474, 477 (6th Cir. 1999)) (internal quotation marks omitted). While a
petitioner’s “mere assertion of innocence” does not entitle him to an evidentiary hearing, the
district court cannot forego an evidentiary hearing unless “the petitioner’s allegations cannot be
accepted as true because they are contradicted by the record, inherently incredible, or
conclusions rather than statements of fact.” Id. When a petitioner’s factual narrative of the
events is not contradicted by the record and not inherently incredible and the government offers
nothing more than contrary representations, the petitioner is entitled to an evidentiary hearing.
Id.
III.

ANALYSIS
Petitioner sets out only one ground for vacating his sentence: ineffective assistance of

counsel in preparing his petition for certiorari.2 (See Doc. 1, at 15.)
The Sixth Amendment provides, in relevant part, that “[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.” U.S. Const.
amend. VI. This includes the right to counsel both “at trial and on direct ‘first tier’ appeal.”
Nichols v. United States, 563 F.3d 240, 248 (6th Cir. 2009) (citing Halbert v. Michigan, 545 U.S.
605, 610 (2005)). However, “the Constitution does not entitle a defendant to the assistance of
counsel for a discretionary appeal (e.g., a petition for certiorari).” Id. (emphasis added).
Because a defendant has no right to counsel in preparing a petition for certiorari, “counsel’s
performance at [the petition for certiorari] stage cannot be constitutionally ineffective.” Harper
v. United States, 792 F. App’x 385, 391 (6th Cir. 2019). As a result, “an alleged error by counsel
in the filing of [a] petition [for certiorari] does not raise a constitutional claim and is thus not

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Petitioner’s § 2255 petition was timely filed, as the Government acknowledges. (See Doc. 1;
Doc 4, at 2.)
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cognizable under § 2255.” Ajan v. United States, No. 2:02-CR-71, 2009 WL 1421183, at *18
(E.D. Tenn. May 20, 2009).
Here, Petitioner argues that his counsel was deficient because he failed to raise a specific
argument in Petitioner’s petition for certiorari. (Doc. 1, at 14–15.) However, even if failure to
raise this issue was an error, Sixth Circuit precedent makes clear that counsel’s performance in
preparing a petition for certiorari cannot, as a matter of law, be a constitutional error. See
Nichols, 563 F.3d at 248 (“[W]here there is no constitutional right to counsel there can be no
deprivation of effective assistance”) (citation and internal quotations omitted). Because
Petitioner was not entitled to counsel in preparing his petition for certiorari, he has not shown
any constitutional violation.
IV.

CONCLUSION
For the foregoing reasons, Petitioner’s motion to vacate his sentence (Doc. 1; Doc. 484 in

Case No. 1:19-cr-46) is DENIED. This action will be DISMISSED WITH PREJUDICE.
Should Petitioner give timely notice of an appeal from this order, such notice will be treated as
an application for a certificate of appealability, which is DENIED because he has failed to make
a substantial showing of the denial of a constitutional right or to present a question of some
substance about which reasonable jurists could differ. See 28 U.S.C. § 2253(c)(2); Fed. R. App.
P. 22(b); Slack v. McDaniel, 529 U.S. 473, 484 (2000). Additionally, the Court has reviewed
this case pursuant to Rule 24 of the Federal Rules of Appellate Procedure and hereby
CERTIFIES that any appeal from this action would not be taken in good faith and would be
totally frivolous. Therefore, any application by Petitioner for leave to proceed in forma pauperis
on appeal is DENIED. See Fed. R. App. P. 24.
AN APPROPRIATE JUDGMENT SHALL ENTER.

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/s/ Travis R. McDonough
TRAVIS R. MCDONOUGH
UNITED STATES DISTRICT JUDGE

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