Cooper v. USA

Filing 10

MEMORANDUM AND OPINION as set forth in following order. Signed by District Judge Thomas A Varlan on 4/26/21. (c/m to Kenneth P Cooper #53307-074, ASHLAND FEDERAL CORRECTIONAL INSTITUTION, Inmate Mail/Parcels, P.O. BOX 6001, ASHLAND, KY 41105)(ABF)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
KENNETH P. COOPER,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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Nos.: 3:19-cv-371-TAV-DCP
3:18-cr-036-TAV-DCP-7

MEMORANDUM OPINION
Petitioner Kenneth Cooper has filed a motion to vacate, set aside, or correct his
sentence under 28 U.S.C. § 2255 [Doc. 711; Case No. 3:19-cv-371, Doc. 1].1 In his motion,
he presents one ineffective-assistance-of-counsel claim. Petitioner thereafter filed a motion
to amend [Case No. 3:19-cv-371, Doc. 5]. The government has responded in opposition
to petitioner’s § 2255 motion [Case No. 3:19-cv-371, Doc. 8]. Because, based on the
record, it plainly appears that petitioner is not entitled to relief, it is not necessary to hold
an evidentiary hearing,2 and petitioner’s § 2255 motion [Doc. 711; Case No. 3:19-cv-371,
Doc. 1] will be DENIED. Petitioner’s motion to amend [Case No. 3:19-cv-371, Doc. 5]
is GRANTED to the extent that the Court has considered the arguments contained therein.

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All docket citations refer to the underlying criminal case unless otherwise indicated.

An evidentiary hearing is required on a § 2255 motion unless the motion, files, and record
conclusively show that the prisoner is not entitled to relief. See 28 U.S.C. § 2255(b). It is the
prisoner’s ultimate burden, however, to sustain his claims by a preponderance of the evidence. See
Pough v. United States, 442 F.3d 959, 964 (6th Cir. 2006). Accordingly, where “the record
conclusively shows that the petitioner is entitled to no relief,” a hearing is not required. Arredondo
v. United States, 178 F.3d 778, 782 (6th Cir. 1999) (citation omitted).

I.

Background
On August 16, 2018, petitioner pleaded guilty to conspiracy to distribute fifty (50)

grams or more of methamphetamine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)
[Docs. 157, 165]. The revised presentence investigation report (“PSR”) ultimately deemed
petitioner a career offender under the Sentencing Guidelines, based on his prior convictions
for Attempt to Possess a Schedule II Controlled substance with Intent to Sell/Deliver and
Sale of Schedule II Controlled Substance [PSR ¶¶ 80, 88–89]. Based on his status as a
career offender, his criminal history score was increased from category III to category VI,
and his adjusted offense level was increased from 32 to 37 [Id., ¶¶ 79–80, 94–95]. With a
total offense level of 34 (accounting for a three-level reduction for acceptance of
responsibility), and a criminal history category of VI, petitioner’s guideline range was
262 to 327 months [Id., ¶ 110]. The government moved for a downward departure pursuant
to United States Sentencing Guidelines § 5K1.1 [Doc. 362] and the Court granted the
motion and sentenced petitioner to 156 months’ imprisonment [Doc. 571].
Petitioner now asks the Court to vacate, set aside, or correct his sentence, pursuant
to 28 U.S.C. § 2255, arguing that his counsel was constitutionally deficient in failing to ask
for a continuance of his sentencing hearing until after the Supreme Court issued its decision
in United States v. Davis, 139 S. Ct. 2319 (2019) [Doc. 711, p. 4; Case No. 3:19-cv-371,
Doc. 1, p. 4]. Petitioner contends that, because counsel failed to request this continuance,
he received an unconstitutional career-offender-enhanced sentence [Id.]. Although he
provides no other argument in this regard, petitioner also asks the Court to “review his
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sentence in light of” the Sixth Circuit’s decision in United States v. Havis, 927 F.3d 382
(6th Cir. 2019) [Id., p. 9].
Petitioner has also filed a motion to amend his § 2255 motion, seeking to add as an
exhibit an e-mail from his defense counsel, stating that Davis “guts a bunch of the career
offender sentencing guidelines” and “could dramatically reduce [petitioner’s] sentence”
[Doc. 5]. In this e-mail, defense counsel advises petitioner that “[n]o one knew this case
was coming down, but you should still say I should have known” [Id. at 3].
The government responds, in relevant part,3 that, while the Supreme Court held in
Davis that 18 U.S.C. § 924(c)(3)(B)’s definition of a crime of violence was
unconstitutionally vague, petitioner was not convicted under § 924(c), but rather, was
deemed a career offender under United States Sentencing Guidelines § 4B1.2 [Case No.
3:19-cv-371, Doc. 8, p. 3]. The government further argues that defense counsel was not
ineffective in failing to postpone the sentencing hearing until after Havis, which the
government admits precludes petitioner from being categorized as a career offender if
sentenced today, because counsel was not required to predict developments in the law
[Id. at 5–7].

The government also argues that any direct challenges to petitioner’s sentence are barred
by the collateral attack waiver in his plea agreement [Case No. 3:19-cv-371, Doc. 8, p. 2].
However, in his reply brief, petitioner clarifies that he is only seeking to raise an ineffectiveassistance-of-counsel claim, which was excluded from the plea agreement’s collateral attack
waiver [Case No. 3:19-cv-371, Doc. 9, p. 1]. Based on this representation, the Court will treat
petitioner’s arguments exclusively as raising an ineffective-assistance-of-counsel claim, and
therefore, the Court will not address the government’s collateral attack waiver argument [See
Doc. 157, ¶ 10(b) (excepting claims of ineffective assistance of counsel from petitioner’s collateral
attack waiver)].
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In reply, petitioner admits that counsel is “not required to possess talismanistic [sic]
powers to predict the future,” but he argues that, by counsel’s own admission, in his e-mail,
he was aware that Davis was pending and that a decision was immediately forthcoming
[Case No. 3:19-cv-371, Doc. 9, p. 2]. Accordingly, petitioner contends that counsel should
have requested a continuance until Davis was published [Id.].
II.

Legal Standard
The Court must vacate, set aside, or correct a prisoner’s sentence if it finds that “the

judgment was rendered without jurisdiction, or that the sentence imposed was not
authorized by law or otherwise open to collateral attack, or that there has been such a denial
or infringement of the constitutional rights of the prisoner as to render the judgment
vulnerable to collateral attack . . . .” 28 U.S.C. § 2255. To obtain relief under § 2255
because of a constitutional error, the error must be one 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
(1993)). A § 2255 petitioner has the burden of proving that he is entitled to relief by a
preponderance of the evidence, Pough v. United States, 442 F.3d 959, 964 (6th Cir. 2006),
and must clear a significantly higher hurdle than would exist on direct appeal. United
States v. Frady, 456 U.S. 152, 166 (1982).
Claims of ineffective assistance of counsel are cognizable under § 2255. Massaro
v. United States, 538 U.S. 500, 508–09 (2003). A petitioner alleging ineffective assistance
of counsel must satisfy the two-part test set forth in Strickland v. Washington, 466 U.S.
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668, 687 (1987). First, he must identify specific acts or omissions to prove that counsel’s
performance was deficient and that counsel did not provide “reasonably effective
assistance,” Strickland, 466 U.S. at 687, as measured by “prevailing professional norms.”
Rompilla v. Beard, 545 U.S. 374, 380 (2005). Counsel is presumed to have provided
effective assistance, and petitioner bears the burden of showing otherwise. Mason v.
Mitchell, 320 F.3d 604, 616–17 (6th Cir. 2003); see also Strickland, 466 U.S. at 689
(providing that a reviewing court “must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance”).
Second, a petitioner must also establish “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. “An 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.” Id. at 691; see also Smith v. Robbins, 528 U.S. 259, 285–86
(2000). Because a petitioner “must satisfy both prongs of Strickland to obtain relief on an
ineffectiveness claim, the inability to prove either one of the prongs—regardless of which
one—relieves the reviewing court of any duty to consider the other.” Nichols v. United
States, 563 F.3d 240, 249 (6th Cir. 2009) (en banc); accord Strickland, 466 U.S. at 697.
III.

Analysis
A.

Davis

First, to the extent that petitioner’s ineffective assistance of counsel claim is based
on Davis, because petitioner’s sentence would not be impacted by Davis, he cannot meet
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his burden of establishing either prong of Strickland. As background, in 2015, the Supreme
Court struck down the so-called “residual clause” of the Armed Career Criminal Act’s
(“ACCA”) definition of “violent felony” as unconstitutionally vague. Johnson v. United
States, 576 U.S. 591, 606 (2015). Under the ACCA, an enhanced 15-year mandatory
minimum sentence applied to violations of 18 U.S.C. § 922(g) if the defendant had three
or more prior convictions for a “serious drug offense” or “violent felony.” Id. at 593. The
ACCA defined a “violent felony” as any crime punishable by imprisonment for a term
exceeding one year that (1) “has as an element the use, attempted use or threatened use of
physical force against the person of another” (Elements Clause); (2) “is burglary, arson, or
extortion, involves use of explosives” (Enumerated Offenses Clause); or (3) “otherwise
involves conduct that presents a serious potential risk of physical injury to another”
(Residual Clause). Id. at 593–94 (quoting 18 U.S.C. § 924(e)(2)(B)). The Court struck
down this last clause of the “violent felony” definition, leaving the remaining clauses intact.
Id. at 606.
The Johnson decision ignited a deluge of litigation regarding similarly-worded
definitions of “violent felonies” or “crimes of violence” in other statutes. For example, in
Sessions v. Dimaya, the Supreme Court found that the residual clause of 18 U.S.C.
§ 16(b)’s definition of a “crime of violence,” which stated that “any other offense that is a
felony and that, by its nature, involves a substantial risk that physical force against the
person or property of another may be used in the course of committing the offense” was a

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“crime of violence,” was also unconstitutionally vague. 138 S. Ct. 1204, 1211, 1216 (2018)
(quoting 18 U.S.C. § 16(b)).
Likewise, in Davis, on which petitioner relies, the Supreme Court struck down the
residual clause of 18 U.S.C. § 924(c)(3), which defined a “crime of violence” in part as a
felony “that by its nature, involves a substantial risk that physical force against the person
or property of another may be used in the course of committing the offense.” 139 S. Ct.
2319, 2324, 2336 (quoting 18 U.S.C. § 924(c)(3)). Section 924(c) provides that “any
person who, during and in relation to any crime of violence or drug trafficking crime . . .
for which the person may be prosecuted in a court of the United States, uses or carries a
firearm, or who, in furtherance of such crime, possesses a firearm” is subject to additional
penalties in addition to the sentence for the underlying crime of violence or drug trafficking
crime. 18 U.S.C. § 924(c)(1)(A). In light of Davis, such additional penalties may only
apply, in the case of an underlying crime of violence, rather than drug trafficking offense,
if the offense qualifies as a “crime of violence” under § 924(c)(3)’s element’s clause.
The United States Sentencing Guidelines contain a “career offender” provision
which enhances a defendant’s offense level and criminal history category, for purpose of
calculating the guideline sentencing range, if: (1) “the defendant was at least eighteen years
old at the time the defendant committed the instant offense of conviction;” (2) “the instant
offense of conviction is a felony that is either a crime of violence or a controlled substance
offense;” and (3) “the defendant has at least two prior felony convictions of either a crime
of violence or a controlled substance offense.” U.S.S.G. § 4B1.1(a). The Guidelines
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definition of a “crime of violence” previously included,4 like the ACCA, an elements
clause, an enumerated offenses clause, and a residual clause. Beckles, 137 S. Ct. 886, 890–
91 (quoting U.S.S.G. § 4B1.2(a) (2015)). The former residual clause of the Guidelines’
definition of a “crime of violence” included any offense punishable by imprisonment for a
term exceeding one year that “otherwise involves conduct that presents a serious potential
risk of physical injury to another.” Id. at 891 (quoting U.S.S.G. § 4B1.2(a) (2015)).
Despite the similarity of the career offender guideline’s residual clause to the
residual clause in the ACCA, the Supreme Court held that the advisory Guidelines are not
subject to vagueness challenges under the Due Process Clause, and therefore, the
Guidelines’ residual clause was valid. Id. at 890, 985. The Supreme Court held that,
because the Guidelines “merely guide the district courts’ discretion” in sentencing, rather
than mandating a particular sentence, they are not subject to a constitutional vagueness
challenge. Id. at 894.
Petitioner here was not sentenced as an armed career criminal, nor was he convicted
of an offense under § 924(c). Instead, petitioner’s sentencing guideline calculations were
enhanced under the career offender guideline.

Notably, the PSR applied the 2018

Guidelines Manual, which, as noted above, had already eliminated the career offender
guideline’s residual clause, in calculating petitioner’s guideline range [PSR ¶ 73].
Moreover, petitioner’s career offender status was based on his instant offense of conviction

The 2016 Sentencing Guidelines Manual removed the residual clause from § 4B1.2(a)’s
definition of a “crime of violence.” See U.S. Sentencing Guidelines Manual, app. C., amend. 798.
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being a controlled substance offense, and his two prior convictions for controlled substance
offenses, rather than any crimes of violence [See id. ¶¶ 88–89]. For this reason alone,
petitioner’s claim of ineffective assistance of counsel based on Davis fails, as no changes
in the definition of a “crime of violence” would have altered his status as a career offender.
Nevertheless, even to the extent that petitioner’s career offender enhancement could
be deemed to have been based in part on the guideline’s former crime of violence
definition’s residual clause, his counsel was not deficient in failing to raise this argument
or postpone his sentencing until after the Davis decision issued. Because Davis involved
the application of § 924(c), and petitioner was not charged under § 924(c), counsel had no
legitimate grounds to seek a continuance of petitioner’s sentencing hearing until after Davis
was decided. Furthermore, to the extent that petitioner contends that Davis would have
had some application to his career offender enhancement, such argument is foreclosed by
Beckles, and was foreclosed by Beckles at the time of his sentencing. Therefore, his counsel
did not perform deficiently in failing to raise this argument or postpone his sentencing until
after Davis was decided.
For the same reasons, petitioner cannot show that he was prejudiced by any alleged
deficient performance. Even if counsel had postponed petitioner’s sentencing hearing until
after Davis was decided, Davis would not have altered his sentence in any way, and any
argument that the rationale of Davis should apply to his career offender guideline
enhancement would have been foreclosed by Beckles. Thus, to the extent that petitioner’s

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ineffective assistance claim is based on Davis, petitioner’s claim fails to meet either prong
of Strickland.
B.

Havis

In Havis, the Sixth Circuit, sitting en banc, held that the Sentencing Guidelines’
definition of a “controlled substance offense” does not include attempt crimes. 927 F.3d
at 387. The Court noted that the commentary to § 4B1.2(b) of the Guidelines stated that
attempt crimes qualified as a “controlled substance offense.” Id. at 385 (citing U.S.S.G.
§ 4B1.2(b), comment. (n.1)). However, the Circuit also noted that the plain language of
§ 4B1.2(b) itself did not include attempt crimes. Id. (citing U.S.S.G. § 4B1.2(b)). The
Court ultimately concluded that the Sentencing Commission could not amend the language
of the guideline through the commentary, and therefore, the Commission’s use of the
commentary to add attempt crimes to the definition of a “controlled substance offense”
deserved no deference, but rather, the text of the guideline itself controlled. Id. at 387.
The government concedes that, in light of Havis, if petitioner was sentenced today,
he would no longer qualify as a career offender [Case No. 3:19-cv-371, Doc. 8, p. 4].
However, whether petitioner’s sentence would remain the same, if sentenced today, is
insufficient in a § 2255 proceeding. Rather, petitioner 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.

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§ 2255(a). A “collateral attack” claim is “generally cognizable only if [it] involved a
fundamental defect which inherently results in a complete miscarriage of justice.” Bullard
v. United States, 937 F.3d 654, 658 (6th Cir. 2019) (quoting Snider v. United States, 908
“To meet this

F.3d 183, 189 (6th Cir. 2018)) (internal quotation marks omitted).

demanding standard, a prisoner typically must ‘prove that he is either actually innocent of
his crime or that a prior conviction used to enhance his sentence has been vacated.’” Id.
(quoting Spencer v. United States, 773 F.3d 1132, 1139 (11th Cir. 2014)).
Liberally construing petitioner’s pro se § 2255 motion, the Court concludes that
petitioner seeks to raise a claim that his counsel was constitutionally defective for failing
to postpone his sentencing until after the Havis decision.

Framed as an

ineffective-assistance-of-counsel claim, petitioner’s claim, if supported, could pass
constitutional muster. However, the Court finds that petitioner cannot establish the first
prong of Strickland, that his counsel performed deficiently, with regard to any Havis claim.
Although petitioner relies extensively on the e-mail from his defense counsel, which
petitioner characterizes as admitting that counsel was aware that the Davis decision was
pending, and therefore, should have sought a continuance until after that decision was
issued, the Court has reviewed the e-mail, and counsel made no reference to the Sixth
Circuit’s decision in Havis [See Case No. 3:19-cv-371, Doc. 5, p. 3]. As petitioner himself
acknowledged in his reply brief [Case No. 3:19-cv-371, Doc. 9, p. 2], counsel’s failure to
anticipate a change in the law is not constitutionally deficient performance. See Alcom v.

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Smith, 781 F.2d 58, 62 (6th Cir. 1986) (“errors such as failure to perceive or anticipate a
change in the law . . . cannot be considered ineffective assistance of counsel”); Robinson
v. United States, 636 F. Supp. 2d 605, 613 (E.D. Mich. 2009) (holding that counsel was
not constitutionally deficient in failing to anticipate the Supreme Court’s ruling that the
Sentencing Guidelines are not mandatory). Petitioner has provided no indication that his
counsel was, or should have been, aware of the pending Havis appeal, nor any reason that
counsel should have anticipated the change of law encompassed by Havis. Accordingly,
petitioner has not met his burden of establishing that his counsel’s performance was
constitutionally deficient in failing to seek a sentencing continuance until after the Sixth
Circuit’s en banc decision in Havis.
IV.

Conclusion
Petitioner’s motion to amend [Case No. 3:19-cv-371, Doc. 5] is GRANTED to the

extent that the Court has considered the arguments contained therein. However, the Court
finds that Petitioner is not entitled to relief pursuant to 28 U.S.C. § 2255, and his motion
to vacate, set aside or correct sentence [Doc. 711; Case No. 3:19-cv-371, Doc. 1] will be
DENIED and this action will be DISMISSED. A hearing is unnecessary in this case. The
Court will CERTIFY that any appeal from this action would not be taken in good faith
and would be totally frivolous. Therefore, this Court will DENY petitioner leave to
proceed in forma pauperis on appeal. See Fed. R. App. P. 24. Petitioner having failed to
make a substantial showing of the denial of a constitutional right, a certificate of

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appealability SHALL NOT ISSUE. 28 U.S.C. § 2253; Fed. R. App. P. 22(b). A separate
judgment will enter.
IT IS SO ORDERED.

s/ Thomas A. Varlan
UNITED STATES DISTRICT JUDGE

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