Syharath v. USA
Filing
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MEMORANDUM AND OPINION. For the reasons stated herein, Syharath has failed to establish any basis upon which § 2255 relief could be granted, and his § 2255 motion, along with his motion to appoint counsel, will be DENIED. A COA from the denial of his § 2255 motion will be DENIED. Signed by District Judge Harry S Mattice, Jr on 6/7/2019. (BDG) Memorandum mailed to Syharath.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT WINCHESTER
SOURIYA SYHARATH,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
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No.:
4:17-CV-18-HSM
MEMORANDUM OPINION
Federal inmate Souriya Syharath has filed a motion to vacate, set aside, or correct sentence
pursuant to 28 U.S.C. § 2255. Respondent has filed a response in opposition to the motion, to
which Syharath has replied. Having considered the pleadings and the record, along with the
relevant law, the Court finds that it is unnecessary to hold an evidentiary hearing1, and Syharath’s
§ 2255 motion will be denied.
I.
BACKGROUND FACTS AND PROCEDURAL HISTORY
Pursuant to a written plea agreement, Syharath pleaded guilty to conspiring to distribute
with the intent to distribute 50 grams or more of methamphetamine in violation of 21 U.S.C. §
841(a), (b)(1)(A) and possessing a firearm in furtherance of drug-trafficking crime in violation of
18 U.S.C. § 924(c) [Doc. 32 in No. 4:15-CR-06]. Syharath qualified as a career offender under
United States Sentencing Guideline (“Guideline(s)”) § 4B1.1 on account of two prior convictions:
a Tennessee felony robbery and a Tennessee controlled substance offense [Doc. 53 ¶¶ 20, 32-33
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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).
in No. 4:15-CR-06]. Based on that classification, Syharath’s base offense level was 37 and his
criminal history category was VI [Id. ¶¶ 20, 36, 52]. The corresponding Guidelines range,
including the consecutive 60-month sentence for the ¶ 924(c) offense, was 322 to 387 months’
imprisonment [Id. ¶ 52].
However, both parties agreed that a sentence of 240 months’
imprisonment would be appropriate pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C)
[Doc. 32 ¶ 5 No. 4:15-CR-06]. This Court accepted the Rule 11(c)(1)(C) agreement and sentenced
Syharath, consistent with that agreement and without regard to the Guidelines range, to 240
months’ imprisonment [Doc. 63 p. 3 in No. 4:15-CR-06].
Despite an appeal-waiver in his plea agreement, Syharath sought to appeal. The Sixth
Circuit affirmed his sentence, holding that “[e]ven if the appeal waiver did not bar review of
Syharath’s sentence, there is no arguable basis on which to challenge the district court’s sentencing
determination” [Doc. 86 p. 3 in No. 4:15-CR-06]. Thereafter, Syharath filed the instant motion,
claiming counsel was ineffective for allowing him to plead guilty to the § 924(c) count and for not
disputing his career-offender classification in light of recent Supreme Court decisions. The Court
ordered the Government to respond to the motion, and the United States complied by filing its
response on May 10, 2017 [Doc. 4]. Syharath submitted a reply to the Government’s response on
or about June 28, 2017 [Doc. 5]. This matter is ripe for review.
II.
LEGAL STANDARD
After a defendant has been convicted and exhausted his appeal rights, a court may presume
that “he stands fairly and finally convicted.” United States v. Frady, 456 U.S. 152, 164 (1982). A
court may grant relief under 28 U.S.C. § 2255, but the statute “does not encompass all claimed
errors in conviction and sentencing.” United States v. Addonizio, 442 U.S. 178, 185 (1979).
Rather, collateral attack limits a movant’s allegations to those of constitutional or jurisdictional
magnitude, or those containing factual or legal errors “so fundamental as to render the entire
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proceeding invalid.” Short v. United States, 471 F.3d 686, 691 (6th Cir. 2006) (citation omitted);
see also 28 U.S.C. § 2255(a).
III.
DISCUSSION
Syharath’s claims involve allegations that he received the ineffective assistance of counsel.
In Strickland v. Washington, the Supreme Court set forth a two-pronged test for determining
whether a convicted defendant has received the ineffective assistance of counsel. See Strickland
v. Washington, 466 U.S. 668 (1984). Strickland holds that a petitioner cannot establish the
ineffective assistance of counsel unless he demonstrates (1) that counsel’s performance was
deficient, such that counsel did not render reasonably effective assistance as measured by
prevailing professional norms; and (2) that he was prejudiced by the deficiency, i.e., that there
exists a reasonable probability that but for counsel’s alleged acts or omissions, the results of the
proceedings would have been different. See Strickland, 466 U.S. at 687-88, 694; Huff v. United
States, 734 F.3d 600, 606 (6th Cir. 2013) (applying Strickland test to § 2255 claims). The failure
to satisfy either prong of Strickland requires dismissal of the claim and relieves the reviewing court
of a duty to consider the other prong. Nichols v. United States, 563 F.3d 240, 249 (6th Cir. 2009);
see also Strickland, 466 U.S. at 697.
A.
§ 924(c) plea
Syharath argues that counsel was ineffective for allowing him to plead guilty to a § 924(c)
violation for possessing a firearm in furtherance of a drug-trafficking crime because, in his view,
the facts to which he stipulated when pleading guilty were legally insufficient to sustain such a
conviction [Doc. 88 p. 12-15 in No. 4:15-CR-06].
Syharath’s claim that counsel failed to investigate the facts surrounding his § 924(c) charge
is baseless, as he fails to identify what facts counsel should have, but failed to, investigate. See
Cope v. United States, 385 F. App’x 531, 533-34 (6th Cir. 2010) (explaining that “an attorney does
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not provide deficient counsel by making investigative decisions based, quite properly, on
information supplied by the defendant”) (citation and internal quotation marks omitted).
Moreover, Syharath specifically admitted that he “knowingly possessed a firearm in furtherance
of” a drug trafficking crime, and that he used the firearm to protect the drugs stored at his house
[Doc. 32 ¶¶ 2-3 in No. 4:15-CR-06]. Therefore, the undisputed facts establish that Syharath
possessed a firearm in furtherance of drug trafficking]. Accordingly, Syharath has not established
that counsel erred in his advice as to that count, as the facts stipulated by Syharath establish his
guilt to that offense.
B.
Career-offender classification
Syharath next faults counsel for not arguing that his prior Tennessee convictions were not
qualifying career-offender predicate offenses under the Guidelines, as they were not crimes of
violence after the Supreme Court’s holding in Johnson v. United States, 135 S. Ct. 2551, 2563
(2015), which struck down the residual clause of the Armed Career Criminal Act as
unconstitutionally vague and violative of due process [ Doc. 88 p. 18-22, 23-29 in No. 4:15-CR6]. As an initial matter, the Court finds that Syharath’s claim lacks merit, as his sentence was not
based on his career-offender classification, but rather, his Rule 11(c)(1)(C) agreement [Doc. 32 ¶
5 in No. 4:15-CR-06]. As such, even if his classification as a career offender had been incorrect,
it did not affect his negotiated 240-month sentence. Accordingly, he cannot establish that he was
prejudiced by counsel’s failure to object to his Guidelines calculation on direct appeal. However,
out of an abundance of caution, the Court will address Syharath’s specific arguments.
1.
Robbery
Syharath’s prior Tennessee robbery conviction is a crime of violence under the Guidelines,
which the Supreme Court has held “are not subject to a vagueness challenge under the Due Process
Clause.” Beckles v. United States, 137 S. Ct. 886, 892 (2017). Moreover, robbery under Tennessee
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law unquestionably qualifies as a “crime of violence” under § 4B1.2 because it involves the use of
force. See United States v. Mitchell, 743 F.3d 1054, 1059 (6th Cir. 2014).
2.
Controlled substance offense
Syharath also argues that his counsel was ineffective for not contesting whether his prior
conviction for violating Tenn. Code Ann. § 39-17-435 was a “controlled substance offense” under
the Guidelines [Doc. 88 p. 123-29 in No. 4:15-CR-6]. The Guidelines define a controlled
substance offense as a felony offense “that prohibits the manufacture, import, export, distribution,
or dispensing of a controlled substance. . . or the possession of a controlled substance. . . with
intent to manufacture, import, export, distribute, or dispense.” Guideline § 4B1.2(b).
The Tennessee statute at issue, Tenn. Code Ann. § 39-17-435 provides that “[i]t is an
offense for a person to knowingly initiate a process intended to result in the manufacture of any
amount of methamphetamine.” Tenn. Code Ann. § 39-17-435(a). Therefore, by its plain terms, a
violation of Tenn. Code Ann. § 39-17-435 is a “controlled substance offense” under the
Guidelines, which “prohibits the manufacture. . . of a controlled substance offense.” Guideline §
4B1.2(b).2
3.
Summary
Syharath has failed to identify any valid basis upon which counsel should have disputed
his career-offender classification or challenged his § 924(c) conviction on appeal. Therefore, he
cannot demonstrate that counsel performed deficiently or that he was prejudiced as a result.
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To determine whether a prior conviction is a controlled substance offense under § 4B1.2,
courts ordinarily apply a categorical approach, which requires the reviewing court to compare the
elements of the statute of conviction with the “generic elements” of the offense. Mathis v. United
States, 136 S. Ct. 2243, 2248 (2016); Descamps v. United States, 570 U.S. 254, 257 (2013). If the
statute of conviction is broader than that criminalizing the generic offense, then it cannot qualify
as a violent felony, regardless of the facts comprising the offense. See, e.g., Mathis, 136 S. Ct. at
2248-49.
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IV.
MOTION TO APPOINT COUNSEL
Contemporaneously with his § 2255 motion, Syharath filed a motion seeking the
appointment of counsel in this proceeding [Doc. 89 in 4:15-CR-6]. However, this Court has found
that Syharath’s allegations are without merit, and that an evidentiary hearing is not warranted.
Accordingly, Syharath’s motion for the appointment of counsel will be denied. See 18 U.S.C. §
3006A(a)(2)(B) (authorizing court to appoint counsel for § 2255 applicant when it “determines
that the interests of justice so require”); Rule 8(c) of the Rules Governing Section 2255
Proceedings in the United States District Courts (requiring court to appoint attorney to indigent
defendant in § 2255 proceeding if evidentiary hearing is warranted).
V.
CERTIFICATE OF APPEALABILITY
When considering a § 2255 motion, this Court must “issue or deny a certificate of
appealability when it enters a final order adverse to the applicant.” Rule 11 of the Rules Governing
Section 2255 Proceedings for the United States District Courts. Syharath must obtain a COA
before he may appeal the denial of his § 2255 motion. 28 U.S.C. § 2253(c)(1)(B). A COA will
issue “only if the applicant has made a substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2). For cases rejected on their merits, a movant “must demonstrate that
reasonable jurists would find the district court’s assessment of the constitutional claims debatable
or wrong” to warrant a COA. Slack v. McDaniel, 529 U.S. 473, 484 (2000). To obtain a COA on
a claim that has been rejected on procedural grounds, a movant must demonstrate “that jurists of
reason would find it debatable whether the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it debatable whether the district court was
correct in its procedural ruling.” Id. Based on the Slack criteria, the Court finds that a COA should
not issue in this cause.
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VI.
CONCLUSION
For the reasons stated herein, Syharath has failed to establish any basis upon which § 2255
relief could be granted, and his § 2255 motion, along with his motion to appoint counsel, will be
DENIED. A COA from the denial of his § 2255 motion will be DENIED.
An appropriate Judgment Order will enter.
/s/ Harry S. Mattice, Jr._______
HARRY S. MATTICE, JR.
UNITED STATES DISTRICT JUDGE
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