Fawbush v. USA
Filing
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MEMORANDUM AND OPINION as set forth in following order. Signed by District Judge R Leon Jordan on 4/3/20. (c/m to Kathy Evon Fawbush48701-074, CARSWELL FEDERAL MEDICAL CENTER, Inmate Mail/Parcels, P.O. BOX 27137FORT WORTH, TX 76127) (ABF)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT GREENEVILLE
KATHY EVON FAWBUSH,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
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Nos. 2:17-CV-209; 2:15-CR-107
MEMORANDUM OPINION
Petitioner Kathy Evon Fawbush has filed a pro se motion to vacate, set aside, or
correct her sentence under 28 U.S.C. § 2255. [Doc. 1]. 1 The United States has responded
in opposition to the motion [doc. 3], and Petitioner has not replied. The matter is now ripe
for resolution.
The Court finds the materials submitted, together with the record of the underlying
criminal case, conclusively show that Petitioner is not entitled to relief on the claims
asserted. Accordingly, the Court will decide this matter without an evidentiary hearing.
See 28 U.S.C. § 2255(b). For the reasons discussed below, the Court finds that Petitioner’s
motion to vacate is without merit and, thus, will deny and dismiss the motion with
prejudice.
1
All docket references are to Case No. 2:17-CV-209 unless otherwise noted.
I.
Background
Petitioner and 12 co-defendants were charged in a 50-count superseding indictment.
[Case No. 2:15-CR-107, doc. 40]. Petitioner was named in eight of those counts.
In March 2016, Petitioner entered into a plea agreement with the government. [Id.,
docs. 150-151]. She agreed to plead guilty to Count Two, a conspiracy to distribute and
possess with the intent to distribute 50 grams or more of actual methamphetamine in
violation of sections 841(a)(1), 841(b)(1)(A), and 846 of Title 21, United States Code.
Prior to Petitioner’s change of plea hearing, the United States filed a notice of intent
to seek increased punishment, pursuant to 21 U.S.C. § 851, due to Petitioner’s three prior
felony drug convictions. [Case No. 2:15-CR-107, doc. 142]. The plea agreement (signed
by Petitioner) stated the applicable mandatory minimum sentence—life imprisonment—
“[b]ecause of the defendant’s prior felony drug convictions.” [Id., doc. 150, p. 1].
In her plea agreement, Petitioner acknowledged that she conspired to distribute and
possess with the intent to distribute at least 1.5 but less than 4.5 kilograms of actual
methamphetamine during an 18-month period commencing in April 2014. [Id. p. 2]. The
plea agreement further makes clear that Petitioner: dealt in large quantities of
methamphetamine from her home; was a close associate of the lead defendant in the
conspiracy case; and knew that the methamphetamine came from Mexico. [Id., p. 3-4].
Additionally, the plea agreement contains Petitioner’s waiver of most of her appellate
rights, along with a waiver of the right to file any motions or pleadings pursuant to § 2255
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except as to “(i) prosecutorial misconduct not known to the defendant by the time of the
entry of judgment and (ii) ineffective assistance of counsel.” [Id., p. 12].
On April 21, 2016, the Court conducted a change of plea hearing. At that hearing,
the Court confirmed that Petitioner understood the charge to which she was pleading guilty,
including the mandatory lifetime term of imprisonment required by her prior felony drug
convictions. The Court also confirmed Petitioner’s understanding of the waiver of most of
her appellate and § 2255 rights.
The probation office subsequently disclosed its Presentence Investigation Report
(“PSR”) which deemed Petitioner a career offender pursuant to United States Sentencing
Guidelines Manual (“U.S.S.G.”) § 4B1.1 due to two prior controlled substance convictions.
[Case No. 2:15-CR-107, doc. 210]. Alternatively, the PSR increased Petitioner’s offense
level by two for maintaining a premises for the purpose of distributing a controlled
substance (U.S.S.G. § 2D1.1(b)(12)), and by another two levels because the offense
involved methamphetamine which Petitioner knew had been imported unlawfully
(U.S.S.G. § 2D1.1(b)(5)(A)). Ultimately, those guideline increases were of no import
because Petitioner’s statutorily mandated life sentence exceeded any alternate calculation
of her guideline range. See U.S.S.G. § 5G1.1(b). In other words, Petitioner’s guideline
range was life. 2
2
Defense counsel nonetheless objected to the career offender designation. [Case No. 2:15-CR-107, doc.
223]. That objection was overruled. [Id., doc. 469].
3
The Court held Petitioner’s sentencing hearing on August 3, 2017, and imposed a
sentence of 210 months’ imprisonment. That below-guideline (and below mandatory
minimum) sentence was the product of the United States’ five-level motion for downward
departure.
Petitioner did not file a direct appeal of her sentence or conviction. Instead, she
submitted this timely pro se § 2255 motion to vacate on November 13, 2017.
II.
Standards of Review
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 that was 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, 549-50 (6th Cir. 2013) (applying Brecht test to § 2255 motion). A petitioner
“must clear a significantly higher hurdle than would exist on direct appeal” 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).
4
“[A] pro se petitioner’s section 2255 motion is entitled to a generous construction.”
Fields v. United States, 963 F.2d 105, 109 (6th Cir. 1992). Nevertheless, when a movant
files a § 2255 motion, she must set forth facts which entitle her 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). A motion that merely states general conclusions of law without substantiating its
allegations with facts is without legal merit. Loum v. Underwood, 262 F.2d 866, 867 (6th
Cir. 1959).
When a § 2255 movant claims she was denied her 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 petitioner must prove that specific
acts or omissions by her attorney were deficient and that the attorney failed to provide
“reasonably effective assistance,” which is measured by “prevailing professional norms.”
Strickland v. Washington, 466 U.S. 668, 687-88 (1984), “[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, 206 (6th Cir. 2003) (citing Strickland). A court’s “role on habeas review is
not to nitpick gratuitously counsel’s performance. Smith, 348 F.3d at 206.
Next, a petitioner must demonstrate “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding 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
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of a different result.” Cullen v. Pinholster, 563 U.S. 170, 189 (2011) (citation and internal
quotation marks omitted). The prejudice test is modified in the context of a guilty plea—
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. Furthermore, if “it is
easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice .
. . that course should be followed.” Id. at 697.
A petitioner alleging ineffective assistance of counsel bears “a heavy burden of
proof.” Pough v. United States, 442 F.3d 959, 966 (6th Cir. 2006) (citation omitted).
“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 Padilla v. Kentucky, 559 U.S. 356,
371 (2010), and United States v. Timmreck, 441 U.S. 780, 784 (1979)).
III.
Discussion
Appended to Petitioner’s form § 2255 motion is a memorandum of law in support.
[Doc. 1]. At times, the memorandum is indeed what it purports to be—facts and law in
support of the claims articulated in the form § 2255 motion.
At other points, the
memorandum presents new claims. In deference to Petitioner’s pro se status, the Court has
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construed Petitioner’s form motion and her memorandum collectively as the § 2255 motion
of record in this case. The Court will now address in turn the claims presented in those
two associated documents.
A. Unconstitutional and Extreme Sentence
“Beyond the ineffective assistance of counsel,” Petitioner argues that her 210-month
prison sentence is so excessive as to be in violation of the Eighth and Fifth Amendments.
[Memorandum, p. 4, 9-12].
As noted earlier, at paragraph 11(b) of the plea agreement, Petitioner waived her
right to file a motion to vacate, except as to claims of ineffective assistance and certain
prosecutorial misconduct. It is well recognized that a party may waive a provision intended
for her benefit in a contract or statute. See, e.g., Shutte v. Thompson, 82 U.S. 151, 151-52
(1872).
Even fundamental constitutional rights may be waived, and the waiver is
enforceable if it is made knowingly and voluntarily. “[A] defendant’s informed and
voluntary waiver of the right to collaterally attack a conviction and sentence is
enforceable.” In re Acosta, 480 F.3d 421, 422 (6th Cir. 2007). Therefore, if Petitioner
understood the terms of the plea agreement and made the waiver of her right to file a §
2255 motion voluntarily and knowingly, the waiver is valid and enforceable.
Here, there is little doubt that Petitioner knowingly and voluntarily entered into the
waiver provision in her plea agreement. Although no transcript of the Court’s change of
plea hearing is in the record, this Court recalls that it verified, in testimony under oath by
Petitioner, that she had read the plea agreement or that the plea agreement had been read
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to her, and that she had discussed the plea agreement with counsel and understood all its
provisions including the appellate and § 2255 waivers. Thus, Petitioner’s claim that her
sentence violates the Eighth and Fifth Amendments is barred by the waiver provision.
Even if that were not the case, the Eighth Amendment “forbids only extreme
sentences that are ‘grossly disproportionate’ to the crime.” Harmelin v. Michigan, 501
U.S. 957, 1001 (1991) (affirming a sentence of life imprisonment for a first-time offender
who possessed 672 grams of cocaine) (citations omitted); see also United States v. Flowal,
163 F.3d 956, 963 (6th Cir. 1998) (rejecting Eighth Amendment challenge to a life sentence
mandated by 21 U.S.C. § 841(b)(1)(A) for defendant with two prior felony drug
convictions). Petitioner’s 210-month sentence for her involvement in the distribution of
large quantities of methamphetamine falls far short of the punishments imposed in
Harmelin and Flowal. 3
For all these reasons, Petitioner’s Eighth and Fifth Amendment claims will be
denied.
3
As to the Fifth Amendment, Petioner’s claim is wholly unsupported by facts or legal authority and would
be denied for that reason. See, e.g., Loum v. Underwood, 262 F.2d 866, 867 (6th Cir. 1959).
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B. Ineffective Assistance of Counsel
Petitioner ties her remaining claims to the purportedly ineffective performance of
her attorney.
1. Plea
“A guilty plea is open to attack on the ground that counsel did not provide the
defendant with ‘reasonably competent advice.’” Cuyler v. Sullivan, 446 U.S. 335, 344
(1980) (quoting McMann v. Richardson, 397 U.S. 759, 770-71 (1970)). As noted, in the
guilty-plea context, the Supreme Court employs the same two-part standard for
ineffectiveness that was developed in Strickland. See Hill v. Lockhart, 474 U.S. 52, 5859985). That is, a petitioner must demonstrate that (1) her attorney's performance was
outside the range of competence demanded of attorneys in the criminal context, and (2) the
professionally unreasonable performance prejudiced her.
The instant Petitioner offers several criticisms of her attorney’s performance at the
plea negotiation stage. According to Petitioner, “competent counsel” would have advised
that her “chief goal” was to limit her sentencing exposure, most effectively by way of “a
plea deal (perhaps coupled with cooperation).” [Memorandum, p. 5]. Further, according
to Petitioner, “Competent counsel would have realized, had he done adequate research,”
that she was facing a maximum ten years’ imprisonment. [Id.. p. 7]. Petitioner also argues
that counsel was ineffective in allowing a “first-time offender” to be sentenced to 210
months’ imprisonment. [Id., p. 4]. That is so because, according to Petitioner, “competent
counsel would have releaized [sic] and advised Fawbush that her biggest concern needed
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to be any 841 counts, because conviction on these counts mandated a lengthy prison
sentence.” [Id., p. 5]. 4
Each of these claims fails at Strickland’s second step. Petitioner “cannot satisfy the
prejudice prong in the absence of any statement that [s]he is actually innocent, or would
have gone to trial if [her] attorney's performance had been different.” Hunter v. United
States, 160 F.3d 1109, 1115 (6th Cir. 1998). She makes neither claim. Petitioner does not
allege she is innocent, nor does she claim that she would have decided to proceed to trial
but for counsel’s allegedly deficient performance.
Moreover, counsel obviously did not fail to advise her of the option of a “plea deal
(perhaps coupled with cooperation).” Petitioner entered into and benefitted from that very
“deal.” [Case No. 2:15-CR-107, docs. 150, 151, 465]. Further, Petitioner’s claim that she
could only be sentenced to “less than 10 years’ imprisonment” is, again, unsupported and
nonsensical. And her self portrait of a “first time offender” is wholly belied by the five
convictions listed in her PSR.
Petitioner may believe that her counsel was constitutionally ineffective because she
now thinks she could have secured a better deal if only her attorney were a better negotiator.
However, the law is well-settled that dissatisfaction with a plea deal does not rise to a
showing of constitutionally ineffective counsel. See, e.g., Hunter, 160 F.3d at 1115
4
This final claim (pertaining to 21 U.S.C. § 841) would appear to relate tangentially to Petitioner’s belief
that “the Government never sentenced her to an offense in violation of any offense or in violation of 21
U.S.C. § 841. Congress has not yet enacted a law that provides that intent plus, act, plus conduct constituted
the offense of attempt or conspiracy.” [Form Motion, numbered p. 6]. Petitioner’s theory regarding § 841
is unsupported and nonsensical. It will not be discussed further.
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(“[W]hile [petitioner] may later have decided that he could have done better, his
dissatisfaction does not rise to a showing of constitutionally ineffective counsel”); United
States v. Parker, 609 F.3d 891, 895 (7th Cir. 2010) (“[W]hether a petitioner ‘could have
negotiated a better plea deal is irrelevant in the ineffective assistance context.’”) (quoting
Bethel v. United States, 458 F.3d 711, 720 (7th Cir. 2006)).
Additionally, a criminal defendant has “no constitutional right to plea bargain.”
Weatherford v. Bursey, 429 U.S. 545, 561 (1977). The government was therefore under
no obligation to offer a more lenient plea.
For all these reasons, Petitioner’s ineffective assistance claims relating to her plea
will be denied.
2. Presentence Report
Petitioner’s remaining claims of ineffective assistance pertain to her sentencing.
Specifically, Petitioner alleges that her attorney failed to raise three meritorious challenges
to the PSR.
First, Petitioner claims that counsel should have objected to her career offender
designation because the predicate convictions were for conduct related to the instant
offense. [Form Motion, numbered p. 5]. Petitioner also faults her attorney for not objecting
to the “two point increase on her level of offense.” [Id.]. Lastly, Petitioner claims that her
attorney should have objected to the PSR’s omission of the guideline safety valve, U.S.S.C.
§ 5C1.2. [Memorandum, p. 15-16].
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These claims fail at both steps of the Strickland analysis. The foundation of each
claim is Petitioner’s incorrect belief that her guideline range was based on either her career
offender designation or her § 841 offense level calculation. True, the PSR computed what
Petitioner’s guideline range would be as a career offender. Also true, the PSR computed
what Petitioner’s § 841 offense level would be. However, as noted above, and as Petitioner
was advised at paragraph 72 of the PSR, and as Petitioner was advised by the Court at
sentencing, her applicable guideline range was based on none of these things. Instead, the
guideline range of life was due to her statutorily mandated life sentence. See U.S.S.G. §
5G1.1(b) (“Where a statutorily required minimum sentence is greater than the maximum
of the applicable guideline range, the statutorily required minimum sentence shall be the
guideline sentence.”).
Petitioner therefore cannot bear her burden of showing “a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694. Even if counsel had successfully raised all of
Petitioner’s enumerated objections, the guideline range would still have been life.
Additionally, each of Petitioner’s armchair quarterback objections lacks merit.
Neither the delivery of Oxycodone in 2008 (PSR ¶ 42) nor the 2009 extraction of
methamphetamine precursors for “home cooking” (PSR ¶43) are relevant conduct to her
2014 and 2015 participation in a conspiracy to distribute imported methamphetamine. See
U.S.S.G. § 1B1.3 (defining relevant conduct). Next, while it is unclear which “two point
increase” Petitioner disputes (imported methamphetamine or maintaining a premises), her
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plea agreement stipulates facts sufficient to support both. [Case No. 2:15-CR-107, doc.
150, p. 2-6]. Lastly, Petitioner did not qualify for safety valve because she had more than
one criminal history point. See U.S.S.G. § 5C1.2(a)(1) (2016); 18 U.S.C. § 3553(f)(1)
(2016).
Petitioner therefore cannot show that counsel failed to provide “reasonably effective
assistance” at sentencing. The omission of futile PSR objections is not constitutionally
ineffective performance. See Harris v. United States, 204 F.3d 681, 683 (6th Cir. 2000).
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.” Id. The district court must
“engage in a reasoned assessment of each claim” to determine whether a certificate is
warranted. Murphy v. Ohio, 263 F.3d 466, 467 (6th Cir. 2001). Each issue must be
considered under the standards set forth by the Supreme Court in Slack v. McDaniel, 529
U.S. 473 (2000). Id.
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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 reasonable jurists could
not find that the dismissal of those claims was debatable or wrong. Therefore, the Court
will DENY issuance of a certificate of appealability.
A separate judgment will enter.
IT IS SO ORDERED.
ENTER:
s/ Leon Jordan
United States District Judge
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