Hillis v. USA

Filing 28

MEMORANDUM OPINION. Petitioner's 2255 Motion will be DENIED. Because the Motion is ripe for review and the record conclusively establishes the Petitioner is entitled to no relief, Petitioner's Motion for Evidentiary Hearing and Motion for Court Order will be DENIED AS MOOT. A separate judgment will enter. Signed by District Judge Harry S Mattice, Jr on 9/14/2020. (AML) Mailed to Betsy Hillis

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT WINCHESTER
BETSY HILLIS,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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Nos. 4:17-cv-35, 4:12-cr-5
Judge Mattice
Magistrate Judge Lee

MEMORANDUM OPINION
On July 24, 2017, federal inmate Betsy Hillis filed a motion to vacate, set aside, or
correct her sentence pursuant to 28 U.S.C. § 2255. [Doc. 1; Crim Doc. 556]. Petitioner
argues she was deprived of her right to effective assistance of counsel due to numerous
purported failures of her attorneys, including failure to obtain evidence to support an alibi
defense, failure to negotiate an acceptable plea, failure to challenge sentencing guidelines,
and various failures on appeal. As ordered, the United States filed a response to Hillis’s
Motion [Doc. 10], to which she replied [Doc. 19]. She has also filed a Motion for
Evidentiary Hearing [Doc. 21] and a Motion for Court Order [Doc. 23]. Having considered
the pleadings and the record, along with the relevant law, the Court finds there is no need
for an evidentiary hearing 1 and Petitioner’s § 2255 motion [Doc. 1; Crim Doc. 556] will be
DENIED. Because the Motion is ripe for review and the record conclusively establishes

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).

1

that Petitioner is entitled to no relief, Petitioner’s Motion for Evidentiary Hearing
[Doc. 21] and Motion for Court Order [Doc. 23] will be DENIED AS MOOT.
I.

BACKGROUND FACTS AND PROCEDURAL HISTORY
On November 27, 2012, a grand jury handed down a four-count Second

Superseding Indictment, charging Petitioner Betsy Hillis with (i) conspiracy to
manufacture and distribute 50 grams or more of methamphetamine and 500 grams or
more of a substance containing methamphetamine; (ii) conspiracy to possess and
distribute

pseudoephedrine,

knowing

it

would

be

used

to

manufacture

methamphetamine; (iii) obstruction of an official proceeding; and (iv) making false
statements. [Crim. Doc. 350]. 2 The charged conspiracies took place between January
2008 and February 2012. [Id.]. On Defendant’s motion, the Court severed the drug
conspiracy charges of Counts One and Two from the false statement and obstruction
offenses of Counts Three and Four. [Crim. Doc. 393 at 2].
At trial, the Government presented evidence that Petitioner purchased Sudafed
and traded it for methamphetamine. [See e.g. Crim. Doc. 480 at 175-178, 207]. The
Government’s witnesses testified they cooked methamphetamine for their personal use,
shared with friends or family, and traded it for supplies to make methamphetamine. [Id.
at 59-60, 97-98, 112--13]. The Government introduced pharmacy logs of pseudoephedrine
purchases associated with Hillis’s driver’s license and records of Hillis’s debit card
purchases. Some of Hillis’s debit card purchases were made in close geographical and
temporal proximity to the purchase of pseudoephedrine by her codefendants. [Crim. Doc.

The Government incorrectly indicates Count Two of the Second Superseding Indictment was conspiracy
to possess equipment for the manufacture of methamphetamine. [Doc. 10 at 2].

2

2

481 at 48-56]. The pseudoephedrine logs were admitted over Defendant’s motion in
limine [Crim. Doc. 419] and continuing objection. [Crim. Doc. 426; Crim. Doc. 479 at 33].
At the close of the Government’s case in chief, defense counsel moved for a
judgment of acquittal under Federal Rule of Civil Procedure 29 on three grounds. [Crim.
Doc. 480 at 247-265]. First, he argued the Government had failed to prove that the
substances involved in the case were the substances charged in the indictment—i.e., that
there was “actual” methamphetamine, a mixture containing methamphetamine, and
pseudoephedrine involved in the conspiracy. [Id.]. Counsel noted the Government did not
call a laboratory expert to prove that the product of the conspiracy was methamphetamine
and not some other powder substance.
Second, Hillis’s attorney argued there was a variance between what was charged in
the indictment—conspiracy to manufacture and distribute—and the proof the
Government presented of Hillis’s possession and personal use. [Id.]. Finally, he argued
the Government had failed to prove the existence of a conspiracy whose goal was
distribution as opposed to mere possession. [Id.]. Counsel argued that because the
indictment charged Hillis with conspiracy to both distribute and manufacture
methamphetamine, the charge had to be dismissed because there was no evidence from
which a reasonable juror could find distribution. [Id.]. The Government argued this
deficiency was not fatal to the indictment and could be cured by removing reference to
distribution from the jury instructions and verdict. The Court heard argument on all of
these issues but did not grant the motion at that time. [Id. at 264].
In its case in chief, the Government presented evidence that 10 or so purchases of
pseudoephedrine were made with Hillis’s bank card in a 28-month period. [See Crim.
Doc. 465 at 17]. On direct examination, Hillis testified she had made those purchases for
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herself due to life-long sinus and allergy issues. [See id. at 18]. The Government also
presented pharmacy logs of purchases associated with Hillis’s driver’s license number.
Petitioner testified that the purchases without corresponding bank records were not hers,
because she always used her debit card to buy things. [Id.]. She also testified that in
October 2000 she thought she lost her driver’s license, so she got a new one with the same
address, and then found her prior license a week or so later. [Crim. Doc. 465 at 20-21].
She renewed her license in March 2003 with a new address but kept one of her old
licenses. [Crim. Doc. 481 at 28-29]. She testified she would sometimes give a license to
her ex-boyfriend and co-defendant Jeremy Rigsby to hold onto when they went out. [Id.].
She further testified Rigsby gave the license to another co-defendant who used it to
purchase Sudafed for the purpose of making methamphetamine. [Id. at 31].
At the close of the defense case, defense counsel renewed his Rule 29 motion for
judgment of acquittal. [Crim. Doc. 481 at 77-90]. The Court granted the Motion in part
and denied in part. [Crim. Doc. 507 at 5]. The Court found that lab-tested
methamphetamine was not required to sustain a conviction for the manufacture of
methamphetamine, rejecting the first ground for counsel’s motion. [Id.]. Viewed in the
light most favorable to the Government, the Court held that a reasonable juror could
conclude Hillis voluntarily joined a conspiracy to manufacture methamphetamine, but
that no reasonable juror could find that Hillis conspired to distribute methamphetamine.
[Id. at 5-6]. The Court based this ruling on the absence of proof that Hillis had any
knowledge that the methamphetamine was being distributed to anyone other than
herself. [Id. at 6]. The Court found this ruling was not fatal to Count One of the Second
Superseding Indictment, however. Instead, reference to distribution was removed from
the language of the indictment and the following charges were sent to the jury: conspiracy
4

to manufacture methamphetamine, conspiracy to possess and distribute a precursor
chemical to methamphetamine, and the lesser-included offense of Count Two, conspiracy
to possess a precursor chemical to methamphetamine. [Crim. Doc. 433]. At the charge
conference, Hillis’s attorney made multiple objections to the jury instructions. [See Crim.
Doc. 507].
On the fourth day of trial, a jury found Petitioner guilty of 1) conspiracy to
manufacture 50 grams or more of actual methamphetamine or five hundred grams or
more of a mixture containing methamphetamine and 2) conspiracy to possess and
distribute a precursor chemical to methamphetamine. [Crim. Doc. 433].
The Court’s Probation Office prepared a Presentence Investigation Report
reflecting a minimum term of imprisonment of ten years pursuant to 21 U.S.C. § 841(a)(1)
and (b)(1)(A) and a guideline sentencing range of 151 months to 188 months. [Crim. Doc.
464 at ¶¶ 55-56]. Hillis objected to multiple factual and legal aspects of the PSR,
specifically challenging the two-level enhancement for obstruction of justice. [Crim. Doc.
454]. Defendant also filed a Motion for Variance of Sentence [Crim. Doc. 455], arguing,
inter alia, that she was a low-level, non-violent offender and that the Government had
ignored Department of Justice policy by charging her with a large drug quantity in order
to trigger a mandatory minimum sentence that was designed for high-level offenders.
Prior to sentencing, the United States Sentencing Guidelines were amended,
reducing Hillis’s guideline imprisonment range to 121 to 151 months. [Crim. Doc. 482 at
32-33]. At sentencing, the Court sustained an objection to the PSR based on the amended
guidelines and also granted the motion for a downward variance, reducing the term of

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imprisonment by one month. [Id.]. 3 The Court imposed the mandatory minimum
sentence of 120 months’ imprisonment. [Id. at 51-52; Crim. Doc. 472]. Counts Three and
Four were dismissed on the Government’s motion. [Crim. Doc. 472; Crim. Doc. 482 at
54].
Hillis appealed, challenging the Government’s admission of pharmacy records that
identified her as the purchaser of pseudoephedrine and arguing the evidence against her
was insufficient to support a conviction. [See Crim. Doc. 537 at 1]. The United States Court
of Appeals for the Sixth Circuit affirmed her conviction, United States v. Hillis, 656 F.
App’x 222 (6th Cir. 2016), and the Supreme Court of the United States denied Hillis’s
petition for a writ of certiorari on March 20, 2017, Hillis v. United States, 137 S. Ct. 1359
(2017). Hillis timely filed her instant Motion to Vacate on July 24, 2017 [Crim. Doc. 556].
The Government responded, as ordered by the Court. [Doc. 10]. Petitioner then filed a
reply brief and affidavit, a motion for evidentiary hearing [Doc. 21], and a Motion for
Court Order [Doc. 23], asking the Court to require the Government or the Clerk of Court
to provide Petitioner with record excerpts and case law cited by the Government in its
reply.
II.

STANDARDS OF REVIEW
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,
The Government’s brief states Defendant objected to the enhancement for obstruction of justice and the
Court sustained the objection, resulting in a reduction in her guideline range from 151-188 months to 121151 months. This is incorrect. The Court overruled Defendant’s objection, finding a two-level enhancement
for obstruction appropriate. [Doc. 482 at 23, 31-32]. The reduction in Defendant’s advisory guideline range
was due to an amendment to the United States Sentencing Guidelines. [Id. at 32-33].

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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 proceeding invalid.” Short v. United States, 471
F.3d 686, 691 (6th Cir. 2006) (citation omitted); see also 28 U.S.C. § 2255(a).
In a § 2255 action, “[a]n 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)). Otherwise, “a district court may only forego a hearing where ‘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. (quoting
MacLloyd v. United States, 684 F. App’x 555, 559 (6th Cir. 2017)).
To establish that she has received ineffective assistance of counsel, a convicted
defendant must satisfy the two-pronged test set forth by the Supreme Court of the United
States in Strickland v. Washington, 466 U.S. 668 (1984). Strickland holds that a
petitioner cannot establish his counsel was ineffective unless he demonstrates that (1)
counsel’s performance was deficient, such that counsel did not render reasonably effective
assistance as measured by prevailing professional norms; and (2) he was prejudiced by
the deficiency, i.e., there is a reasonable probability that but for counsel’s alleged acts or
omissions, the results of the proceedings would have been different. Id. 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.
Finally, Strickland “requires the defendant to identify specific acts or omissions by
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counsel that were ‘outside the wide range of professionally competent assistance.’” Carter
v. Bogan, 900 F.3d 754 (6th Cir. 2018) (quoting Strickland, 466 U.S. at 690).
In the context of an ineffective assistance of counsel claim, an evidentiary hearing
is required unless (i) the record conclusively shows the petitioner is not entitled to relief
on the grounds that her counsel rendered a deficient performance, and (ii) the record
conclusively shows that any deficient performance could not have prejudiced petitioner’s
defense. MacLloyd v. United States, 684 F. App’x 555, 560, 562 (6th Cir. 2017).
III.

ANALYSIS
A.

Motion to Vacate

Petitioner says she was denied effective assistance of counsel because her lawyer
(1) failed to prove she was at work when she was purportedly buying pseudoephedrine,
(2) failed to negotiate an acceptable plea agreement, (3) failed to challenge the
presentence report and minimize Petitioner’s sentencing exposure, and (4) failed to
present the strongest arguments in her favor on appeal. The Government opposes the
motion and argues an evidentiary hearing is not necessary. The record before the Court
conclusively establishes that Petitioner was not denied effective assistance of counsel on
the grounds raised and the Motion to Vacate will be denied.
1.

Ground One—Failure to Prove Alibi Defense

For her first ground, Petitioner claims trial counsel was ineffective because he
failed to obtain evidence to support Petitioner’s alibi defense and present it at trial. [Doc.
1 at 4]. Petitioner says she was actually at work at times when the Government claims she
was buying pseudoephedrine. [Doc. 17 at 1]. She claims, as she did at trial, that her driver’s
license was used without her consent to purchase pseudoephedrine. [Doc. 5 at 8]. Her
alibi could have been established, she argues, because she was in the presence of
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coworkers, using password-protected software, and performing work that could only have
been done by someone with unique experience and knowledge of her duties. [Id.]. “[I]t
would be much simpler,” she argues, for someone to make a fake driver’s license or steal
her “extra driver’s license.” [Id. at 8]. But this simpler explanation was not available to
the jury, because according to Hillis, her attorney “failed to inspire ‘reasonable doubt’ by
suggesting someone made a ‘fake license’ and by failing to prove defendant was at
work….” [Id. at 19]. She says the subpoenas he wrote were too general to elicit the
information she needed to prove her alibi, and that she was told of the lack of detailed
records only a week before trial. [Doc. 17 at 2]. 4 She also faults her counsel for not calling
any witnesses to testify, though she does not say who he could have called. [Doc. 5 at 19].
The Government submits the affidavit of her trial counsel in support of its
response. [Doc. 10-1]. Counsel avers that he sent subpoenas to five former employers of
Petitioner in an attempt to obtain records that would contradict the pseudoephedrine
pharmacy logs offered by the Government as proof that Hillis purchased
pseudoephedrine. [Id.]. One employer had no records to produce, one had only wage
information, and another only had records prior to the start date of the conspiracy. [Doc.
10-1 at ¶ 5]. None of the records contradicted the Government’s proof, so counsel relied
on, inter alia, Hillis’s testimony and the absence of other evidence placing her at the
pharmacies in question. [Id.].
The record demonstrates Hillis’s counsel did in fact investigate Hillis’s claim that
she was at work during some of the pseudoephedrine purchases associated with her
license, but was unable to obtain the records necessary to support this claim. Assuming

4 She also claims that her attorney’s assistant failed to give him messages from Hillis and was subsequently
fired. [Doc. 17 at 1-2]. It is not clear what impact this issue supposedly had on Hillis’s case.

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arguendo that he could have drafted the subpoenas with greater detail or specificity, his
failure to do so does not fall outside the wide range of professionally competent
assistance. Petitioner was entitled to reasonably effective assistance of counsel, not
perfect representation.
Nor can Petitioner establish prejudice. Petitioner’s fixation on her employment
alibi ignores the reality of the remaining evidence against her. She admitted to purchasing
pseudoephedrine with her bank card and multiple people testified she purchased
pseudoephedrine and traded it for methamphetamine. The Government presented
evidence that Petitioner made purchases with her bank card at the same time and in the
same location that her codefendants bought pseudoephedrine for the manufacture of
methamphetamine. [Crim. Doc. 481 at 48-56]. Moreover, Hillis does not say when she
was at work or which purchases could have been disputed, if any. She does not say, for
example, what days and hours she normally worked or for which employers. With respect
to some of the subpoenas, it appears the information Hillis seeks does not exist. Hillis
therefore cannot show a reasonable probability that the results of her trial would have
been different if her counsel had pursued her employment information more quickly or
more aggressively.
Petitioner also claims trial counsel failed to seek surveillance video of the dates in
question, failed to subpoena any of the clerks who supposedly sold Sudafed to Hillis, failed
to engage the services of a professional hand-writing analyst to prove the pharmacy logs,
and failed to match transaction detail records to Hillis’ bank records. [Doc. 17 at ¶ 11]. But
counsel strategically highlighted each of these deficiencies in the Government’s proof
during trial and avers this decision was intentional. [Doc. 10-1 at ¶ 5]. He noted the
Government’s lack of surveillance video, lack of handwriting analysis, and lack of witness
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identification of Hillis as a pseudoephedrine purchaser in his closing argument. [Doc. 507
at 58]. He also objected to the admission of the pseudoephedrine pharmacy logs and
objected to the manner in which the Government cross-examined Hillis regarding the
transactions. [Doc. 419; Doc. 481 at 48]. Indeed, the Government was made to identify
for the jury which transactions were purportedly made with Hillis’s debit card versus
which were associated with her driver’s license and paid for by other means. [Doc. 481 at
48-50, 56-57].
Finally, Hillis says trial counsel should have argued to the jury that someone
created a fake driver’s license with her name and license number on it and used it buy
pseudoephedrine. [Doc. 5 at 8]. It is not difficult to imagine that such a wildly speculative
argument might have called into question Hillis’s credibility and ultimately
disadvantaged her. She further argues her attorney should have made a “jurisdictional
argument,” but does not explain what that means. Petitioner has not shown that her
counsel was ineffective with regard to investigating and presenting an alibi defense. Even
if she could show that some of the purchases made with her driver’s license were not hers,
she admitted to others, and the Government presented testimonial evidence of her role in
the conspiracy. She cannot show a reasonable probability that the result of her trial would
have been different had her counsel established she was at her place of employment at
some unspecified time.
2.

Ground Two—Failure to Negotiate Acceptable Plea Agreement

Petitioner next claims her counsel was ineffective because he failed to pursue an
Alford plea, failed to explain and negotiate for application of the safety valve provision,
and failed to explain how Hillis’s conduct did or did not satisfy the elements of the charged
offenses. [Doc. 1 at 5]. Hillis does not say how she was prejudiced by these deficiencies,
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but presumably she means to suggest that but for counsel’s ineffectiveness, she would
have been offered and accepted a favorable plea. Hillis initially claimed “at no time” was
she “offered any type of plea.” [Doc. 17 at ¶ 3]. She did not renew this contention following
the Government’s submission of evidence that a plea offer was indeed made and would
have included a two-level safety valve reduction.
A defendant has no constitutional right to a plea bargain, much less a specific type
of plea bargain. See Weatherford v. Bursey, 429 U.S. 545, 561 (1977) (“[T]here is no
constitutional right to a plea bargain.”). However, if a favorable offer is made, the
defendant’s attorney must communicate that offer, “review the charges with the
defendant, including a discussion of the elements necessary for the conviction, the
evidence that may support those elements, and the sentencing exposure that the
defendant faces.” MacLloyd, 684 F. App'x at 560 (quoting Lafler v. Cooper, 566 U.S. 156
(2012)). “The failure of defense counsel to provide professional guidance to a defendant
regarding his sentencing exposure prior to a plea may constitute deficient assistance.” Id.
That is not what Hillis contends happened here. Rather, she says her attorney
failed to negotiate an “acceptable plea agreement,” telling her “she must either plead
guilty (and admit to criminal conduct) or go to trial.” [Doc. 5-1 at ¶¶ 4-5]. The record
reflects those were in fact her options. She says she asked counsel why an Alford plea,
“best interest plea,” or “no contest plea” was not available to her and he told her either
that such a plea was not possible or that only the prosecutor could make that offer. [Id. at
11; Doc. 17 at ¶ 13].5 She believes, however, that she was a good candidate for an “Alford

This conversation appears to have occurred after she was sentenced, as she indicates she was incarcerated
when she learned of an Alford plea. [Doc. 17 at ¶ 13]. She was not remanded to custody until the conclusion
of her sentencing hearing. [Doc. 430].

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plea” due to her lack of criminal history and the characteristics of her co-defendants. The
record does not establish whether there were negotiations for such a plea. 6 [Id. at 11].
An Alford plea is simply “a guilty plea entered by a defendant who either 1)
maintains that he is innocent; or 2) without maintaining his innocence, ‘is unwilling or
unable to admit’ that he committed ‘acts constituting the crime.’” United States v.
Tunning, 69 F.3d 107, 110 (6th Cir. 1995) (quoting North Carolina v. Alford, 400 U.S. 25
(1970)). “An Alford-type guilty plea is a guilty plea in all material respects.” Id. at 11. Her
attorney’s statement that Petitioner would have to plead guilty or go to trial would
therefore have been accurate even had she been offered an Alford-type plea agreement.
More obviously, defense counsel could not compel the Government to offer any specific
plea agreement and Hillis was apparently unwilling to plead guilty.
There is, perhaps, some factual dispute as to whether Petitioner was offered a plea,
but to the extent there is a genuine dispute, it is not material to the resolution of the
motion to vacate. In her initial pleadings, Hillis contends she was not offered any plea at
all. [Doc. 17 at ¶ 3]. In response, the Government presented the affidavits of her attorneys,
Brian O’ Shaughnessy and Peter Strianse. 7 Both aver they discussed the possibility of a
plea agreement with her. O’Shaughnessy says he talked with Hillis about whether a plea
agreement was appropriate in her case and that it was his “standard practice’ to discuss
the safety valve provision for defendants with no criminal history. [Doc. 10-2 at ¶¶ 5, 7].
Strianse avers that on April 18, 2013, an AUSA sent O’Shaughnessy an email outlining the

Petitioner cites statements made by the Court at sentencing regarding whether there had been discussions
between counsel. [Doc. 5 at 12]. The Court’s lack of knowledge regarding plea negotiations does not imply
that negotiations should have occurred.

6

The record reflects Hillis was represented by Brian O’Shaughnessy beginning December 3, 2012
[Doc. 261], and that Peter Strianse was substituted as counsel on June 10, 2013 [Doc. 368].

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terms and conditions of a proposed plea agreement, including a safety valve reduction,
indicating Ms. Hillis would face 30 months or less of jail time. [Doc. 10-1 at 6]. This email
does not appear in the record and Mr. O’Shaughnessy does not make a similar declaration.
Strianse’s affidavit also includes an April 8, 2014 email from the AUSA setting out
terms and conditions of a plea agreement proposal. [Id. at 10-1]. Per the proposal, the
Government agreed to recommend the application of the safety valve exception, provided
Hillis made a full admission of her involvement in the offense. [Id.]. The email chain
includes a draft counterproposal by Strianse that Hillis apparently refused to authorize
him to send. [Id. at 6, 10]. The email proposal contemplated an 18 to 24-month sentence.
[Id. at 10]. Strianse says he advised Hillis to settle her case and reach a plea agreement.
[Id. at 6].
In her reply, Hillis does not repeat her contention that she was never offered a plea,
nor does she dispute the Government’s account of events. Instead, she now says “the
superceding [sic] indictment came on the heels of Betsy Hillis refusing to plead guilty;
two (2) new charges were promised as retaliation if Ms. Hillis failed to plead guilty.” [Doc.
19 at ¶ 6]. 8 It is difficult to square this account with her initial claim that she was never
offered any kind of plea. Consistent with Hillis’s later version of events, the second
superseding indictment adding new charges was returned on April 23, 2013, just five days
after Strianse avers the Government made a plea proposal.
Regardless of her factual allegations, the stated basis for Hillis’s motion is not that
she was never offered a plea. Instead, she argues she was denied effective assistance of

Likewise, in her Motion for Evidentiary Hearing [Doc. 21], Hillis identifies the numerous factual disputes
she believes must be resolved by the Court. Whether she was offered a plea agreement is not among them.
[Id.].
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counsel because her attorneys failed to procure an “acceptable” plea and may not have
sought the specific type of plea Hillis desired, presumably one that did not require her to
plead guilty. There is no dispute that such a plea was never offered to Petitioner. The
inability to procure a plea offer that a client wants to accept is not constitutionally
ineffective assistance of counsel. 9
Hillis also claims counsel did not explain the elements of the offenses with which
she was charged. In the context of evaluating a plea agreement, such an oversight could
perhaps rise to the level of ineffective assistance. See MacLloyd, 684 F. App'x at 560. But
she makes this allegation in the abstract, unconnected to the assessment of a plea
agreement. Similarly, she does not explain how this prejudiced her or what she would
have done differently if she had more information. To the extent Hillis contends her
attorney may not have engaged in plea negotiations, she claims only a lack of knowledge
as to whether those discussions occurred. [Doc. 5 at 11]. The record now reflects that
counsel attempted to negotiate a plea agreement for Hillis.10
3.

Ground Three—Failure to Dispute Legal and Factual Errors in PSR

For her third basis for relief, Hillis argues her attorney was ineffective at sentencing
because he failed to dispute inaccurate information in the PSR, failed to challenge the
inaccurate application of the facts to sentencing laws, failed to offer mitigation, failed to
present an alternative sentencing option despite the existence of better options, failed to
perfect the record for appellate review, and failed to challenge her sentence as in excess
of the statutory maximum. [Doc. 1 at 7]. She claims counsel failed to tell her “that anything
Importantly, Hillis does not argue or allege that her attorneys received a formal plea offer that was not
communicated to her.
9

10 The proposal included a two-level safety valve reduction, as did the Government’s prior proposal. [Doc.
10-1 at 10].

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in the PSR (which was not disputed) would become a stipulated fact for sentencing.” [Doc.
17 at 2]. Hillis says her lawyer did not explain the sentencing to Hillis, including how the
Court arrived at the sentencing guideline range. She says counsel “did not present any
ideas on how he would mitigate sentencing” and failed to follow Federal Rule of Criminal
Procedure 32 in some unspecified way. [Doc. 17 at ¶ 14].
Hillis’s sentence was not driven by the Presentence Investigation Report or the
United States Sentencing Guidelines, but by the mandatory minimum sentence provided
by statute for the offenses she was convicted of committing. She does not identify even
one factual error in the PSR or explain why she believes her guideline sentence range was
improperly calculated. Contrary to Hillis’s contention, her lawyer filed and extensively
argued objections to the PSR, and moved for a downward variance. [Crim. Doc. 454; Crim
Doc. 455; Crim. Doc. 482]. The PSR was revised in response to these objections, at least
one objection was sustained by the Court, and a downward variance was granted at
sentencing. Petitioner insists there were “better options” and that her counsel should have
mitigated her sentence but does not explain what more he could have done.
Petitioner argues there are “checks and balances to aid a defendant when the jury
has been misled by a clever presentation… making the defendant appear guilty.” [Doc. 5
at 17]. She believes that “[m]erely giving someone something with which they create a
crime does not mean you approve of or are even aware the crime will occur” and that
“[n]owhere does the record reflect that the defendant manufactured or distributed any
drugs.” [Doc. 5 at 17]. Though couched as ineffectiveness of counsel, this argument is no
more than Petitioner’s continued insistence that her actions did not constitute a crime.
Finally, Petitioner observes that at sentencing, the Court asked whether there were
any further objections to the PSR or anything else that needed to go in the record.
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[Doc. 13]. Petitioner misinterprets these routine questions as suggesting her counsel
missed an opportunity to advocate for her.
4.

Ground Four—Representation on Appeal

For her fourth ground, Petitioner challenges her representation on appeal, but fails
to identify any specific errors. She claims her lawyer abandoned her strongest argument
on appeal, failed to correct trial errors, and failed to support his arguments with strong
citation to authority on the request of a judge during oral argument. [Doc. 1 at 8]. Hillis
does not identify the arguments or citations that should have been raised or errors that
should have been corrected. Strickland “requires the defendant to identify specific acts or
omissions by counsel that were ‘outside the wide range of professionally competent
assistance.’” Carter v. Bogan, 900 F.3d 754 (6th Cir. 2018) (quoting Strickland, 466 U.S.
at 690). Hillis has not done this, leaving the Court with nothing further to review with
respect to her appellate representation.
5.

Miscellaneous Issues

Hillis raises dozens of other challenges to the competence of her counsel with little
argument or explanation. She claims, inter alia, that her attorney(s) failed to challenge
the indictment, failed to challenge a “defective” grand jury process, failed to challenge
subject matter jurisdiction, failed to demand “guideline codes” from the probation office,
failed to propose jury instructions, failed to ask for first offender treatment, and failed to
challenge the Government’s use of information provided by Hillis. She does not explain
any of this. She does not say, for example, what was wrong with the grand jury process,
why subject matter jurisdiction was lacking, or what information should have been
challenged.

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Again, the Strickland test requires a greater degree of specificity than this to
overcome the “strong presumption” that the challenged conduct was professionally
reasonable. Petitioner has not met this standard, even in light of her pro se status. She
also says her counsel failed to “persist” in his arguments, failed to “strap down his
argument with proper citation to authority,” failed to “flesh out his argument” and so
forth. [Doc. 20 at 4-5]. Such errors in tone and presentation are insufficient to establish
ineffective assistance, even assuming they were errors at all.
Similarly, Petitioner makes a number of arguments that are factually incorrect or
legally baseless. She claims her trial counsel failed to argue that no methamphetamine
was recovered in the case and none was lab-tested. But her lawyer made and argued a
motion for acquittal on this basis and emphasized the Government’s lack of evidence in
his closing argument. She says he failed “to raise safety valve,” but the record reflects that
his proposed settlement offer to the Government would have included the safety valve
provision. She says counsel failed to object to the Court’s striking the conspiracy to
distribute from the jury instructions and the verdict form, resulting in a constructive
amendment to the indictment. 11 Yet he made this precise argument at the close of the
Government’s proof.
She argues counsel “never disputed the guideline as calculated by the Office of
Probation nor did he offer an alternative calculation to the Court.” [Doc. 17 at 3]. But her
attorney made multiple objections to the PSR and the Probation Office revised the PSR in
response. At sentencing, he objected to the two-level enhancement for obstruction of

Petitioner suggests she was charged with possession with intent to distribute, believing simple possession
could thus have been a lesser-included offense sent to the jury. But the indictment does not charge
possession or conspiracy to possess methamphetamine, it charges conspiracy to distribute and manufacture
methamphetamine.
11

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justice based on Hillis’s statements to law enforcement and trial testimony. After hearing
argument and testimony, the Court found that Hillis had lied about purchasing
pseudoephedrine for the purpose of providing it to someone to manufacture
methamphetamine. [Doc. 482 at 31-32]. The Court therefore found the enhancement for
obstruction appropriate. [Id.].
For related reasons, Petitioner cannot show that her counsel was ineffective for
failing to demonstrate her entitlement to the safety valve provision at sentencing. 12 “In
general, if a defendant is convicted under 21 U.S.C. § 841(b)(1)(A), he faces a statutory
mandatory minimum sentence of 120 months.” United States v. Barron, 940 F.3d 903,
913 (6th Cir. 2019). To qualify for a safety valve reduction, the Defendant must meet five
criteria, including: “not later than the time of the sentencing hearing, the defendant has
truthfully provided to the Government all information and evidence the defendant has
concerning the offense or offenses that were part of the same course of conduct or of a
common scheme or plan….” U.S.S.G. § 5C1.2(a). This requires “an affirmative act by the
defendant truthfully disclosing all information he possesses that concerns his offense or
related offenses.” Barron, 940 F.3d at 917 (citing United States v. Adu, 82 F.3d 119 (6th
1996)). “These requirements reflect the fact that the safety valve was intended to benefit
only those defendants who truly cooperate.” Id. (citation and internal punctuation
omitted). The Court’s finding that Petitioner was untruthful at trial resolves in the
negative the question of whether she “truthfully provided to the Government all
information and evidence” she had “concerning the offense” by the time of sentencing.

She also says her lawyer failed to ask the Court for “first offender” treatment under 28 U.S.C. § 994(j),
detailing the duties of the United States Sentencing Commission, or 18 U.S.C. § 3607, relating to “Special
probation and expungement procedures for drug possessors.” These provisions do not entitle her to
different sentencing treatment.

12

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See U.S.S.G. § 5C1.2(a). Petitioner cannot show a reasonable probability that her sentence
would have been different had her lawyer raised the safety valve provision at sentencing.
B.

Miscellaneous Motions

Where “the record conclusively shows that the petitioner is entitled to no relief,”
an evidentiary hearing is not required on a § 2255 motion. Arredondo v. United States,
178 F.3d 778, 782 (6th Cir. 1999) (citation omitted). Petitioner’s Motion for Evidentiary
Hearing [Doc. 21] does not identify factual disputes that preclude the Court from
resolving her Motion without an evidentiary hearing. The record conclusively establishes
that Petitioner was not denied effective assistance of counsel on the grounds stated, and
the Motion for Evidentiary Hearing [Doc. 21] will be denied.
Petitioner also urges the Court to require the Government or the Clerk’s Office to
provide her with transcript excerpts and the legal authority cited in its brief. [Doc. 23].
Petitioner contends she is at a disadvantage in replying to the Government’s brief, but she
has already filed a reply. Petitioner was entitled to file one reply pursuant to the Court’s
Order [Doc. 2] and Local Rule 7.1, which provides only for an initial motion and brief, a
response, and a reply by the moving party. E.D. Tenn. L.R. 7.1(a). Additional briefs and
papers are not permitted without prior approval of the Court, which has not been
requested. The Motion to Vacate [Doc. 1] has been fully briefed and is ripe for review. The
Motion for Court Order [Doc. 23] will be denied as moot.
IV.

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, Rules
Governing Section 2255 Proceedings for the United States District Courts. Petitioner
must obtain a COA before she may appeal the denial of her § 2255 motion. 28 U.S.C.
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§ 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.
V.

CONCLUSION
For the reasons stated herein, Petitioner has failed to establish any basis upon

which § 2255 relief could be granted, and it is therefore ORDERED that her § 2255
motion [Doc. 1; Crim Doc. 556] is DENIED.
The Motion for Evidentiary Hearing [Doc. 21] and a Motion for Court Order
[Doc. 23] are DENIED AS MOOT.
A certificate of appealability from the denial of Petitioner’s § 2255 motion will be
DENIED. A separate judgment will enter.
SO ORDERED this 14th day of September, 2020.

____/s/ Harry S. Mattice, Jr.____
HARRY S. MATTICE, JR.
UNITED STATES DISTRICT JUDGE

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