Swatzell v. USA
Filing
11
MEMORANDUM AND OPINION as set forth in following order. Signed by District Judge R Leon Jordan on 10/21/19. (c/m to David Keith Swatzell, 51369-074, TERRE HAUTE U.S. PENITENTIARY, Inmate Mail/Parcels, P.O. BOX 33, TERRE HAUTE, IN 47808)(ABF)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT GREENEVILLE
DAVID KEITH SWATZELL,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
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Nos.
2:17-CV-52; 2:16-CR-33
Judge Jordan
MEMORANDUM OPINION
Before the Court is Petitioner David Keith Swatzell’s pro se motion to vacate, set aside, or
correct his sentence under 28 U.S.C. § 2255 [Doc. 1], 1 and the United States’ response in
opposition [Doc. 6]. The Court finds the materials thus submitted, together with the record of the
underlying criminal case, conclusively show that Petitioner is not entitled to relief on the claims
asserted in his motion. Accordingly, the Court will decide this matter without an evidentiary
hearing. See United States v. Todaro, 982 F.2d 1025, 1028 (6th Cir. 1993). For the reasons
discussed below, the Court will find that Petitioner’s motion to vacate is without merit and, thus,
will DENY and DISMISS his § 2255 motion WITH PREJUDICE.
I.
PROCEDURAL AND FACTUAL BACKGROUND
On March 8, 2016, a federal grand jury issued an indictment charging Petitioner and two
co-defendants with conspiracy to distribute and to possess with intent to distribute fifty grams or
more of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846 (Count 1)
1
Unless otherwise noted, all docket references in this Memorandum Opinion are to the document
numbers in Petitioner’s civil case, Case Number 2:17-CV-52.
[Doc. 1, Case No. 2:16-CR-33]. Petitioner alone was charged with possession with the intent to
distribute five grams or more of methamphetamine, an offense under 21 U.S.C. §§ 841(a)(1) and
(b)(1)(B) (Count 4) [Id.]. Just under two months later, Petitioner entered into a plea agreement
with the government [Doc. 28, Case. No. 2:16-CR-33].
The Court draws the facts from those to which Petitioner stipulated, as contained in the
factual basis in the plea agreement [Id. at ¶ 4]. In the factual basis, Petitioner admitted that he was
involved in a conspiracy to distribute methamphetamine in the Greeneville, Tennessee area of the
Eastern District of Tennessee for financial gain and that he regularly supplied his two codefendants and others with methamphetamine [Id. at ¶ 4(a)].
More specifically, Petitioner acknowledged that on February 22, 2017, he supplied
approximately 36 grams of methamphetamine to his two co-defendants for purposes of resale and
that they were caught later that day with some of the methamphetamine he had supplied to them
and also with a loaded shotgun [Id. at ¶ 4(b)]. The shotgun, so Petitioner stipulated, had been used
as collateral for a previous drug deal between Petitioner and one co-defendant, and Petitioner had
returned the shotgun to that co-defendant during the drug transaction earlier that day [Id.].
In the early morning hours of March 1, 2017, a Greene County Deputy Sheriff saw
Petitioner and a woman leave a local café in Greeneville [Id. at ¶4(c)]. The Deputy Sheriff knew
that the woman had an active arrest warrant against her so he ran the license plate on the vehicle
that the couple entered and saw that the plate had been switched [Id.]. The Deputy Sheriff pulled
behind the vehicle, activated the blue lights on his cruiser, and pursued the vehicle until Petitioner
blew out the engine on the vehicle [Id.]. The vehicle was searched and approximately 30 grams
of methamphetamine, several ounces of marijuana, hundreds of small baggies commonly
2
associated with drug trafficking, several pipes and various other paraphernalia, digital scales, and
7 cell phones were discovered [Id.].
During an interview, Petitioner admitted to selling methamphetamine to numerous
individuals. He agreed, for purposes of the plea agreement, that he should be held responsible for
at least 150 grams but less than 500 grams of actual methamphetamine [Id.]. Petitioner agreed to
plead guilty to Count 1, the methamphetamine conspiracy, as charged in the indictment, with the
remaining count to be dismissed at sentencing [Id. at ¶¶ 1-2]. The plea agreement provided that,
in exchange for his guilty plea, Petitioner waived his right to file a direct appeal, with one
exception, and his right to file a § 2255 motion or a collateral attack on his conviction or sentence,
excluding claims of prosecutorial misconduct or ineffective assistance of counsel [Id. at ¶ 10(a)
and (b)].
On June 14, 2016, some six weeks after entry of the plea agreement, Petitioner pled guilty
to the methamphetamine conspiracy charge in count 1 in the indictment [Doc. 41, Case. No. 2:16CR-33]. Thereafter, the United States Probation Office issued a Presentence Investigation Report
(“PSR”) to assist the Court in sentencing Petitioner [Doc. 45, PSR (sealed), Case No. 2:16-CR33].
Using United States Sentencing Guideline (“USSG”) § 2D1.1 for § 846 offenses involving
at least 50 grams but less than 150 grams of actual methamphetamine, the probation officer who
prepared the PSR determined that Petitioner’s base offense level was 30 [Id. at ¶ 18]. Two levels
were added under USSG § 2D1.1(b)(1) for possession of a dangerous weapon, and the addition of
two levels for reckless endangerment during flight under USSG § 3C1.1 resulted in an adjusted
offense level of 34 [Id. at ¶¶ 19, 22-23]. A two-level and a one-level reduction for acceptance of
responsibility yielded a total offense level of 31 which, along with a criminal history category of
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VI, resulted in an advisory Guidelines range of 188 months to 235 months [Id., ¶¶ 25-27, 47, 68].
The PSR noted that Petitioner’s statutory sentence was ten years to life imprisonment [Id. at ¶ 67].
Petitioner objected to the dangerous-weapon enhancement as recommended in the PSR,
but the Court overruled his objection based on his stipulations regarding the firearm, dismissed the
remaining count upon motion of the government, and sentenced Petitioner to 188 months’
imprisonment, the lowest sentence in his Guidelines range, to be served concurrently with any
sentence in his then-pending Greene County Sessions Court case, Case No. GS-16CR-642, and to
be followed by five years of supervised release [Docs. 47, 74, and 788, Case No. 2:16-CR-33].
In keeping with the appeal waiver in the plea agreement, Petitioner did not file a direct
appeal. Instead, he submitted this timely pro se § 2255 motion to vacate on April 4, 2017, alleging
several claims of ineffective assistance of counsel and one claim of prosecutorial misconduct [Doc.
1].
II.
A.
STANDARDS OF REVIEW
Motions to Vacate
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)). To warrant relief under 28 U.S.C. § 2255 because of constitutional error, the error must
be one of constitutional magnitude which had a substantial and injurious effect or influence on the
proceedings. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (citation omitted) (§ 2254 case);
Jefferson v. United States, 730 F.3d 537, 549 (6th Cir. 2013) (applying Brecht test to § 2255
motion). A petitioner “must clear a significantly higher hurdle than would exist on direct appeal”
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to secure collateral relief. United States v. Frady, 456 U.S. 152, 166 (1982); Regalado v. United
States, 334 F.3d 520, 528 (6th Cir. 2003) (citing Frady, 456 U.S. at 166).
When a defendant files a § 2255 motion, he must set forth facts which entitle him to relief.
Green v. Wingo, 454 F.2d 52, 53 (6th Cir. 1972); O’Malley v. United States, 285 F.2d 733, 735
(6th Cir. 1961). “Conclusions, not substantiated by allegations of fact with some probability of
verity, are not sufficient to warrant a hearing.” O’Malley, 285 F.2d at 735 (citations omitted). A
motion that merely states general conclusions of law without substantiating allegations with facts
is without legal merit. Loum v. Underwood, 262 F.2d 866, 867 (6th Cir. 1959); United States v.
Johnson, 940 F. Supp. 167, 171 (W.D. Tenn. 1996).
B.
Ineffective Assistance of Counsel
When a § 2255 movant claims he was denied his Sixth Amendment right to effective
assistance of counsel, a court must presume that counsel provided effective assistance, and the
movant bears the burden of showing otherwise. Mason v. Mitchell, 320 F.3d 604, 616-17 (6th Cir.
2003). To meet that burden, a movant must prove that specific acts or omissions by his attorney
were deficient and that the attorney failed to provide “reasonably effective assistance,” Strickland
v. Washington, 466 U.S. 668, 687 (1987), which is measured by “prevailing professional norms,”
Rompilla v. Beard, 545 U.S. 374, 380 (2005). “[T]he constitutional right at issue here is ultimately
the right to a fair trial, not to perfect representation.” Smith v. Mitchell, 348 F.3d. 177, 201 (6th.
Cir. 2003) (citing Strickland).
Second, a petitioner must demonstrate “a reasonable probability that, but for [counsel’s
acts or omissions], the result of the proceedings would have been different.” Strickland, 466 U.S.
at 694. “A reasonable probability is a probability sufficient to undermine confidence in the
outcome,” id., and “requires a substantial, not just conceivable, likelihood of a different result.”
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Cullen v. Pinholster, 563 U.S. 170, 189 (2011) (citation and internal quotation marks omitted). In
the guilty plea context, to establish prejudice a petitioner “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). Yet, “[a]n error by counsel, even if
professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding
if the error had no effect on the judgment.” Strickland, 466 U.S. at 691; see also Smith v. Robbins,
528 U.S. 259, 285–86 (2000). Furthermore, if “it is easier to dispose of an ineffectiveness claim
on the ground of lack of sufficient prejudice . . . that course should be followed.” Strickland, 466
U.S. at 697.
“Surmounting Strickland’s high bar is never an easy task and the strong societal interest in
finality has ‘special force with respect to convictions based on guilty pleas.’” Lee v. United States,
137 S. Ct. 1958, 1967 (2017) (quoting United States v. Timmreck, 441 U.S. 780, 784 (1979)
(internal citation omitted).
III.
DISCUSSION
Petitioner’s claims of ineffective assistance presented in his § 2255 motion to vacate are
groundless. Petitioner’s final claim evinces a desire to pursue allegations involving prosecutorial
misconduct, but the claim is conclusory. The Court addresses each claim in turn.
A.
No Proof of Quantity and Quality of Methamphetamine [Doc. 1 at 4].
In this claim, Petitioner first asserts that he cannot be charged with conspiracy involving
50 grams or more of methamphetamine because there was insufficient proof showing the existence
of that drug quantity. Petitioner acknowledges that he supplied a co-defendant with 26 grams of
methamphetamine (the stipulated amount was 36 grams, not 26 grams [Doc. 28 at ¶ 4(b), Case.
No. 2:16-CR-33]), but contends that no cash was exchanged, while failing to explain the legal
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significance of an illicit drug transaction that involves no cash. Moreover, so Petitioner maintains,
he was not caught in any act of distribution. Instead, as Petitioner points out, his co-defendant was
the one who was caught riding around in a U-Haul with the drugs and who “got hit with the meth”
[Id.]. Petitioner similarly maintains that the purity of the methamphetamine was not challenged
and that counsel gave him ineffective assistance by failing to press the above issues in Petitioner’s
defense.
1.
Quantity
In its response, the government argues that the drug quantity (i.e., 50 grams or more of
methamphetamine) is inherent in the crime to which Petitioner pled guilty. Thus, so Respondent
suggests, there was no legitimate basis on which to ground an objection to that particular quantity
of controlled substance. The Court agrees with Respondent’s argument.
Petitioner’s indictment alleged, as count 1, that he conspired to distribute and possess with
the intent to distribute “fifty (50) grams or more of methamphetamine” [Doc. 1 at 1, Case No.
2:16-CR-33]. Petitioner thereafter pled guilty to count 1 of the indictment as charged. Petitioner’s
admissions that he committed that drug-trafficking conspiracy involving 50 grams or more of
methamphetamine during the entry of his guilty plea relieved the government of any burden it had
at sentencing to show that the amount of methamphetamine was 50 grams or more. See United
States v. Young, 847 F.3d 328, 366 (6th Cir. 2017) (recognizing that Ҥ 841(b)(1)(A) prescribes
mandatory sentences for conspiracy convictions involving certain threshold amounts of drugs”
(citing United States v. Robinson, 547 F.3d 632, 639 (6th Cir. 2008)); United States v. Leachman,
309 F.3d 377, 384 (6th Cir. 2002) (referring to the quantity of drugs in a §§ 841 and 846 controlled
substance offense as the “enhancement element” and finding that a defendant waived his right to
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challenge the drug amount by pleading guilty to an indictment properly charging the specified drug
amount as an element of the offense).
2.
Purity
The same is true of a challenge to the purity of the 50 grams or more of methamphetamine
for which Petitioner was charged and to which he pled guilty. The § 841(a)(1), (b)(1)(A), and §
846 violation alleged as count 1 in the indictment specified that it involved “fifty (50) grams or
more of methamphetamine, its salts, isomers, and salts of its isomers,” and not “500 grams or more
of a mixture or substance containing a detectable amount of methamphetamine, its salts, isomers,
and salts of its isomers,” see § 841(b)(1)(A)(viii) (italics added) [Doc. 6, Case No. 2:16-CR-33].
Because the methamphetamine offense contained both in the indictment and in Petitioner’s plea
agreement involved actual methamphetamine, as opposed to a mere substance or mixture
containing the drug, and because the government did not choose to have the methamphetamine
tested for purity so as to furnish a basis for an increased sentence, the Court concludes that purity
of the drug was not an issue that needed to be pursued. United States v. Moreno, No. 5:19CR002,
2019 WL 3557889, at *4 (W.D. Va. Aug. 5, 2019) (commenting that “because the determination
of purity can only be ascertained after laboratory testing, ‘the prevalence of high-purity
methamphetamine virtually guarantees that a defendant’s base offense level under the Guidelines
will substantially increase if the methamphetamine is tested for purity’” (quoting United States v.
Ferguson, No. CR 17-204 (JRT/BRT), 2018 WL 3682509, at *4 (D. Minn. Aug. 2, 2018)).
Moreover, Petitioner’s guilty plea “established the character and purity of the drug for
sentencing purposes, rendering his present allegations regarding the inadequacy of the evidence
possessed by the government beside the point.” United States v. Willinger, 95 F. App’x 281, 284
(10th Cir. 2004). And too, Petitioner stipulated in his plea agreement that he should be held
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responsible for trafficking in “150 to 500 grams of actual methamphetamine” [Doc. 28, at ¶ 4(c),
Case No. 2:16-CR-33].
3.
Counsel’s Representation
Because there was no foundation for counsel to attack the quantity or purity of the
methamphetamine involved in the conspiracy given Petitioner’s stipulation and guilty plea to the
quantity and type of methamphetamine, the Court concludes that counsel did not render ineffective
assistance in failing to object to the drug amount or its purity. See Christopher v. United States,
No. C07-0701-JCC, 2007 WL 4531782, at *5 (W.D. Wash. Sept. 10, 2007) (finding that the plea
agreement and Rule 11 hearing transcript showed a petitioner’s admission to manufacture and
possess “methamphetamine” which amounted to a concession as to both the amount and type of
methamphetamine), report and recommendation adopted as modified, No. C07-0701-JCC, 2007
WL 4026342 (W.D. Wash. Nov. 15, 2007); see also Polonio v. United States, No. 01 CIV. 11817
(LAP), 2002 WL 31627978, at *5 (S.D.N.Y. Nov. 21, 2002) (ruling that where petitioner “agreed
in her plea agreement that the drug quantity involved was [a specified amount] . . ., counsel’s
failure to [object] to drug quantity cannot constitute ineffective assistance”).
By the same token, any such an objection would have been rejected based on Petitioner’s
stipulations and guilty plea to the quantity and type of methamphetamine. “It is not error for a
court to sentence a defendant on the basis of facts to which the defendant himself admitted.”
United States v. Salas, 281 F. App’x 496, 500 (6th Cir. 2008) (citing United States v. Booker, 543
U.S. 220, 244 (2005)); see also United States v. Poole, 97 F. App’x 587, 588 (6th Cir. 2004)
(denying relief on direct appeal where defendant admitted under “oath the facts establishing the
essential elements of the offenses”); cf., Perrone v. United States, No. 09-CR-30016-DRH, 2016
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WL 2910004, at *5 (S.D. Ill. May 19, 2016) (denying § 2255 relief where a petitioner admitted to
the elements of the crime in a plea agreement), aff’d, 889 F.3d 898 (7th Cir. 2018).
Furthermore, Petitioner has not alleged that, but for counsel’s failure to make the objection
here cited, he would not have pled guilty but would have insisted on standing trial. Therefore,
because there was no prejudicial performance on the part of counsel, this entire claim lacks merit.
4.
Validity of Petitioner’s Plea
To the extent that Petitioner’s claim at bottom is that, on counsel’s advice, he pleaded guilty
to the distribution conspiracy involving 50 or more grams of methamphetamine when there was
insufficient evidence of the amount and purity of the methamphetamine, the law is settled that,
following the entry of an unconditional plea, a petitioner thereafter “may only attack the voluntary
and intelligent character” of the plea. Tollett v. Henderson, 411 U.S. 258, 267 (1973). The question
thus becomes whether Petitioner’s plea was voluntary and knowing.
Before accepting a guilty plea, a district court must advise the defendant of certain rights,
address the defendant in open court, determine that the plea is voluntary and did not result from
force, threats, or promises (other than promises in a plea agreement), and determine that a factual
basis exists for the plea. Fed. R. Crim. P. 11(b). This Court scrupulously complies with Rule 11
of the Federal Rules of Criminal Procedure governing acceptance of guilty pleas, and the record
reflects that it did so here [Doc. 41, Case No. 2:16-CR-33]. Had Petitioner expressed anything
other than a complete understanding of the rights he was relinquishing by virtue of his plea, of the
plea agreement provisions, and of the factual basis that supported the guilty plea or had he
indicated that the plea was induced by threats or promises or was not voluntarily and knowingly
made, the Court immediately would have stopped the proceedings to clarify any problems that
arose.
The proceedings then would have terminated unless the Court was convinced that
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Petitioner’s plea was intelligently and voluntarily entered with full understanding of the
consequences of pleading guilty. The record indicates that during the colloquy, Petitioner’s
answers, which are always given under oath, satisfied the Court of the constitutional validity of
his plea [Id.].
As the Supreme Court has explained, “[s]olemn declarations in open court carry a strong
presumption of verity. The subsequent presentation of conclusory allegations unsupported by
specifics is subject to summary dismissal, as are contentions that in the face of the record are
wholly incredible.” Blackledge v. Allison, 431 U.S. 63, 73-74 (1977). This Court finds that
Petitioner’s guilty plea was made knowingly and voluntarily. A valid guilty plea relinquishes any
claim that would contradict the ‘admissions necessarily made upon entry of a voluntary plea of
guilty.’” Class v. United States, 138 S. Ct. 798, 805, 200 L. Ed. 2d 37 (2018) (quoting United
States v. Broce, 488 U.S. 563, 573-74 (1989)). So, it is here with respect to all sub-sets of
Petitioner’s first claim for collateral relief.
B.
Not Actively Distributing Drugs When Apprehended [Doc. 1 at 4]
In his second main claim, Petitioner maintains that he was not caught in any act of
distribution, with the logical inference being that, absent such proof, he could not be guilty of
participating in a drug operation conspiracy [Id.]. Again, Petitioner contends that a co-defendant,
who was caught with methamphetamine, was the one who “got hit with the meth” [Id.].
Respondent maintains that, contrary to Petitioner’s suggestion, his offense of conviction
(methamphetamine trafficking conspiracy) did not require that he himself be caught with 50 grams
or more of methamphetamine on a single occasion because the nature of a drug conspiracy is the
distribution or possession with the intent to distribute the subject drug over a period of time. That
too is a correct statement of the law.
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To be found guilty on a charge of conspiracy to engage in drug trafficking, a defendant
must be aware of the object of the conspiracy and voluntarily associate himself with its purpose.
United States v. Hodges, 935 F.2d 766, 772 (6th Cir. 1991). A defendant “need not be an active
participant in every phase of the conspiracy, so long as he is a party to the general conspiratorial
agreement.” Id. (quoting United States v. Christian, 786 F.2d 203, 211 (6th Cir. 1986)).
Furthermore, the Sixth Circuit has held that “[w]here a defendant is part of a jointly undertaken
criminal activity involving drugs, the defendant is accountable for all quantities of contraband with
which [he] was directly involved and ... all reasonably foreseeable quantities of contraband that
were within the scope of the criminal activity that [he] jointly undertook.” United States v. Young,
847 F.3d 328, 367 (6th Cir 2017) (citations and internal citation marks omitted) (alterations in
original). And, a “jointly undertaken criminal activity” includes a conspiracy. Id. (citation
omitted).
Petitioner admitted to the elements of a conspiracy as set forth above [Doc. 28 at ¶ 4, Case
No. 2:16-CR-33]. Petitioner specifically acknowledged that he was involved in a conspiracy to
distribute methamphetamine, that he supplied his co-defendants and others with methamphetamine
on a regular basis, and they were participating in this drug trafficking operation for financial gain
[Id. at ¶4(a)]. Further, Petitioner stipulated that he had 30 grams of methamphetamine in the
vehicle when he was stopped and arrested and that his co-defendant was apprehended with 36
grams of methamphetamine which Petitioner had supplied to him earlier that day [Id. at ¶ 4(a)(c)].
As an admitted participant in the conspiracy involving that quantity of methamphetamine,
he was properly charged with conspiring to distribute and possess with intent to distribute 50 grams
or more of methamphetamine. Therefore, under the law and facts of this case, counsel had no
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legitimate basis for objecting to the “50 grams or more” enhancement element of the §§ 841 and
846 offense on the basis that Petitioner was not caught with that amount of controlled substance.
See Mapes v. Coyle, 171 F.3d 408, 413 (6th Cir. 1999) (no constitutional deficiency in failing to
raise meritless issues). Nor does prejudice ensue from a failure to make a groundless objection.
See, e.g., Hoffner v. Bradshaw, 622 F.3d 487, 499 (6th Cir. 2010) (explaining that counsel cannot
be held constitutionally ineffective for failing to pursue a meritless claim or raise a meritless
objection); United States v. Fry, 831 F.2d 664, 669 (6th Cir. 1987) (failure to raise a meritless
objection at sentencing not ineffective assistance).
C.
Firearm Enhancement [Doc 1 at 5]
Counsel’s next shortcoming, so alleges Petitioner, is his failure to raise the issue of the
two-point enhancement to Petitioner’s sentence, under USSG § 2D1.1(b)(1), for possession of the
shotgun. 2 Petitioner points out that he was not caught with a shotgun in his possession, that a codefendant was apprehended with the methamphetamine and a shotgun in his possession, and that
Petitioner did not commit a crime with the shotgun [Id.].
However, contrary to Petitioner’s allegation, counsel objected to the two-point
enhancement for possession of a dangerous weapon, to wit the loaded shotgun, and authored and
filed a sentencing memorandum elaborating on the objection [Docs. 47, 49, and 56, Case No. 2:16CR-33]. The Court carefully considered the objection, noting Petitioner’s stipulations in the plea
agreement as to the shotgun (i.e., that Petitioner regularly supplied his co-defendants with
methamphetamine, that the shotgun had been used as collateral for a previous drug deal between
2
Guideline 2D1.1(b)(1) applies “[i]f a dangerous weapon (including a firearm) was possessed . . . .” USSG
§ 2D1.1 (2015). “The enhancement should be applied if the weapon was present, unless it is clearly
improbable that the weapon was connected with the offense.” Id. cmt. n.11(A). This enhancement “reflects
the increased danger of violence when drug traffickers possess weapons.” Id.
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Petitioner and the co-defendant, that Petitioner returned the shotgun to the co-defendant during
their drug transaction on February 22, 2016, and that the co-defendant was arrested that same day
in possession of the methamphetamine and the loaded shotgun) [Doc. 74, Case. No. 2:16-CR-33].
Thereafter, the Court found the enhancement to be applied properly and overruled the objection,
citing to Sixth Circuit authority stating that weapons traded for drugs satisfied the requirements of
USSG 2D.1.1(b)(1) [Id.].
Counsel cannot be ineffective for failing to make objections that counsel in fact made. Cf.,
Williams v. Bobby, No. 1:09-CV-317, 2010 WL 5184803, at *8 (S.D. Ohio Sept. 3, 2010) (“A
lawyer cannot be ineffective for failure to make an objection unless he or she in fact failed to make
the objection.”), report and recommendation adopted sub nom. Williams v. Warden, Ohio State
Penitentiary, No. 1:09-CV-317, 2010 WL 5276988 (S.D. Ohio Dec. 15, 2010). The record belies
Petitioner’s claim regarding counsel’s failure to object to the dangerous firearm enhancement and
shows it to be groundless.
Finally, Petitioner’s request “to suppress evidence dealing with the gun” comes too late.
This is so because by entering a valid and unconditional guilty plea, Petitioner waived his right to
challenge any non-jurisdictional defects in the pre-plea proceedings. See Tollett, 411 U.S. at 267.
D.
Cellphones [Doc. 1 at 7]
Petitioner maintains that of the several cellphones discovered in his vehicle during his
arrest only one belonged to him. Petitioner asserts that he gave permission to the officers to look
at conversations and texts in his cellphone but no one gave the officers permission to look at and
“go in” to the other cellphones [Id.]. Petitioner’s implied claim is that the officers exceeded the
scope of his consent to search his own cellphone by searching all the other cellphones located in
his vehicle and that counsel gave ineffective assistance by failing to raise that issue.
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Respondent counters that Petitioner identifies no information gleaned from the cellphones,
does not allege that any information so obtained was used against him, and does not establish that
he had an expectation of privacy in cellphones that belonged to others.
The Court finds this allegation factually deficient and conclusory. The purpose of filing a
suppression motion is to exclude evidence secured through violations of the Fourth and Fifth
Amendments to the Constitution. See Wong Sun v. United States, 371 U.S. 471, 485 (1963)
(finding that evidence obtained or derived from an illegal search or seizure must be excluded). If
no such evidence is obtained or identified by a petitioner as having resulted from a constitutional
violation, then there is nothing to seek to suppress. See Short v. United States, 504 F.2d 63, 65
(6th Cir. 1974) (stating that claims asserted in a § 2255 motion “in the form of conclusions without
any allegations of facts in support thereof” are “legally insufficient to sustain review” of the
motion).
In addition, Petitioner’s assertion that officers searched cellphones found in his vehicle that
were not his cellphones without securing permission from the cellphones’ owners is not a claim
that he himself can advance because he lacks standing to assert the violation of rights of the owners
of the other cellphones. See United States v. Salvucci, 448 U.S. 83, 95 (1980) (“limit[ing] the
availability of the exclusionary rule to defendants who have been subjected to a violation of their
Fourth Amendment rights”).
Counsel cannot be ineffective for the failure to pursue a claim which has no legal basis.
See Mapes v. Coyle, 171 F.3d 408, 413 (6th Cir. 1999) (no constitutional deficiency in failing to
raise groundless issues).
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E.
Cumulative Error [Doc. 1 at 7]
Petitioner’s last claim in this category of claims is that there is substantial evidence that
counsel did not represent Petitioner and was ineffective as demonstrated by counsel’s failure to
raise the above issues [Id.]. The Court reads this allegation as a claim that counsel’s errors, when
considered collectively, amount to ineffective assistance.
“Errors that might not be so prejudicial as to amount to a deprivation of due process when
considered alone, may cumulatively produce a trial setting that is fundamentally unfair.” United
States v. Dado, 759 F.3d 550, 563 (6th Cir. 2014) (quoting United States v. Hughes, 505 F.3d 578,
597 (6th Cir. 2007)). Thus, a reviewing court evaluating claims of ineffective assistance must
consider “the combined effect of all acts of counsel found to be constitutionally deficient, in light
of the totality of the evidence in the case.” Id. (quoting Lundgren v. Mitchell, 440 F.3d 754, 770
(6th Cir. 2006)).
However, the Court has found that none of the attorney failings asserted above resulted in
the violation of Petitioner’s Sixth Amendment right to effective assistance. It is impossible to
accumulate errors that were never made. See Getsy v. Mitchell, 495 F.3d 295, 317 (6th Cir. 2007)
(holding that no relief is warranted if “there are simply no errors to cumulate.”). This claim too
lacks merit.
F.
Prosecutorial Misconduct [Doc. 1 at 8]
Embedded in Petitioner’s final claim of ineffective assistance is this statement: “I would
like to pursue prosecutorial misconduct” [Doc. 1 at 8]. No other facts accompany this bald
statement of intent to advance a claim, such as any details regarding a specific incident that
Petitioner views as misconduct on the part of the prosecutor, any circumstances surrounding that
incident, or an explanation as to how any questioned behavior adversely affected his case.
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A successful § 2255 claim must be clothed with facts that show entitlement to relief. See
Rule 2(b)(2), Rules Governing Section 2255 Proceedings (requiring a movant to “state the facts
supporting each ground”). Because a petitioner bears the burden of articulating sufficient facts to
state a viable claim for relief under 28 U.S.C. § 2255, Petitioner’s conclusory statement merely
expressing a desire to litigate claims of prosecutorial misconduct does not state a cognizable §
2255 claim. Green v. Wingo, 454 F.2d 52, 53 (6th Cir. 1972).
IV.
CONCLUSION
For the reasons discussed in this Memorandum Opinion, Petitioner’s § 2255 motion to
vacate [Doc. 1] will be DENIED and DISMISSED.
V.
CERTIFICATE OF APPEALABILITY
Under 28 U.S.C. § 2253(c)(2), the Court must determine whether a certificate of
appealability should be granted. A certificate should issue if a petitioner has demonstrated a
“substantial showing of a denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The Sixth
Circuit disapproves of the issuance of blanket denials of certificates of appealability. Murphy v.
Ohio, 263 F.3d 466 (6th Cir. 2001). 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
(2000).
A certificate of appealability should issue if a petitioner has demonstrated a “substantial
showing of a denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). A petitioner whose claims
have been rejected on the merits satisfies the requirements of § 2253(c) by showing that jurists of
reason would find the assessment of the claims debatable or wrong. Slack, 529 U.S. at 484.
Having examined each of Petitioner’s claims under the Slack standard, the Court finds that
17
reasonable jurists could not find that the dismissal of such claims were debatable or wrong.
Therefore, the Court will DENY issuance of a certificate of appealibility.
A separate judgment will enter.
IT IS SO ORDERED.
ENTER:
s/ Leon Jordan
United States District Judge
18
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