Tabor v. United States of America
MEMORANDUM OPINION OF THE COURT. Signed by Chief Judge Waverly D. Crenshaw, Jr on 10/4/17. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(am)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
JAMES TROY TABOR,
UNITED STATES OF AMERICA,
CHIEF JUDGE CRENSHAW
Pending before the Court are the Petitioner’s pro se Motion Under 28 U.S.C. § 2255 To
Vacate, Set Aside, Or Correct Sentence (Doc. Nos. 1, 2); a Notice Of Intent To Rely On Pro Se
Pleading (Doc. No. 10), filed by counsel for the Petitioner; and the Government’s Response (Doc.
No. 13). For the reasons set forth herein, the Petitioner’s Motion Under 28 U.S.C. § 2255 To
Vacate, Set Aside, Or Correct Sentence (Doc. Nos. 1, 2) is DENIED, and this action is DISMISSED.
II. Procedural and Factual Background
The Petitioner pled guilty, before now-retired Judge William J. Haynes, Jr., to Count Ten of
the Indictment in his underlying criminal case, which alleged that the Petitioner used, carried,
brandished, and discharged firearms during and in relation to a drug trafficking crime, in violation
of 18 U.S.C. § 924(c)(1)(A). (Doc. Nos. 3, 304, 367, 403 in Case No. 2:11cr00001). The “drug
trafficking crime” identified in Count Ten was conspiracy to possess with intent to distribute, and
to distribute, a quantity of a mixture and substance containing a detectable amount of cocaine base,
in violation of 21 U.S.C. §§ 841(a)(1) and 846. (Id.) Through the Plea Agreement, the parties agreed
to a sentence of 300 months of imprisonment, and the Government agreed to dismiss the remaining
nine counts at sentencing. (Doc. No. 367, at 2, 6, in Case No. 2:11cr00001). At the subsequent
sentencing hearing, on July 13, 2012, Judge Haynes imposed the agreed 300-month sentence. (Doc.
Nos. 361, 368, 369 in Case No. 2:11cr00001). The record reveals that no appeal was taken.
A. The Petitioner’s Claims
The Petitioner contends that his conviction and sentence should be vacated because he
received the ineffective assistance of counsel.
B. The Section 2255 Remedy
28 U.S.C. Section 2255 provides federal prisoners with a statutory mechanism by which to
seek to have their sentence vacated, set aside or corrected:
(a) A prisoner in custody under sentence of a court established by Act of
Congress claiming the right to be released upon the ground that the 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, may move the court which imposed the sentence to vacate, set aside or
correct the sentence.
28 U.S.C. § 2255(a).
In order to obtain relief under Section 2255, the petitioner must demonstrate constitutional
error that had a “‘substantial and injurious effect or influence on the guilty plea or the jury's
verdict.’” Hamblen v. United States, 591 F.3d 471, 473 (6th Cir. 2009)(quoting Griffin v. United
States, 330 F.3d 733, 736 (6th Cir. 2003)).
The court should hold an evidentiary hearing in a Section 2255 proceeding where a factual
dispute arises, unless the petitioner’s allegations “‘cannot be accepted as true because they are
contradicted by the record, inherently incredible, or [are] conclusions rather than statements of
fact.’” Ray v. United States, 721 F.3d 758, 761 (6th Cir. 2013)(quoting Arredondo v. United States,
178 F.3d 778, 782 (6th Cir. 1999)). In addition, no hearing is required where “the record conclusively
shows that the petitioner is entitled to no relief.” Arredondo, 178 F.3d at 782 (quoting Blanton v.
United States, 94 F.3d 227, 235 (6th Cir. 1996)). See also Fifer v. United States, 660 F. App'x 358,
359 (6th Cir. Aug. 22, 2016).
Having reviewed the pleadings, briefs and records filed in the Petitioner's underlying
criminal case, as well as the pleadings, briefs and records filed in this case, the Court finds that it
need not hold an evidentiary hearing in this case to resolve the Petitioner’s claims. The record
conclusively establishes that the Petitioner is not entitled to relief on his claims for the reasons set
C. Ineffective Assistance of Counsel
In order to prevail on an ineffective assistance of counsel claim, the burden is on the
Petitioner to show: (1) counsel's performance fell below an objective standard of reasonableness;
and (2) actual prejudice resulted from the deficient performance. Strickland v. Washington, 466 U.S.
668, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Cullen v. Pinholster, 131 S.Ct. 1388, 1403
(2011); Campbell v. United States, 364 F.3d 727, 730 (6th Cir. 2004).
“The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct
so undermined the proper functioning of the adversarial process that the trial cannot be relied upon
as having produced a just result.” Strickland, 104 S.Ct. at 2052; Ludwig v. United States, 162 F.3d
456, 458 (6th Cir. 1998). In analyzing counsel's performance, the court must "indulge a strong
presumption that counsel's conduct falls within the wide range of reasonable professional
assistance." Strickland, 104 S.Ct. at 2065.
In order to establish prejudice, the petitioner must demonstrate “a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id.,
at 2068. A reasonable probability is “a probability sufficient to undermine confidence in the
outcome.” Id., at 2052.
The Petitioner argues that counsel was ineffective because he failed to advise the Petitioner
that the “drug trafficking offense” alleged as part of Count Ten did not satisfy the definition set forth
in 18 U.S.C. § 924(c). Had he been properly advised, the Petitioner contends, he would not have
pled guilty to Count Ten and would have insisted on proceeding to trial.
Section 924(c) provides in pertinent part, as follows:
(c)(1)(A) Except to the extent that a greater minimum sentence is otherwise provided
by this subsection or by any other provision of law, any person who, during and in
relation to any crime of violence or drug trafficking crime (including a crime of
violence or drug trafficking crime that provides for an enhanced punishment if
committed by the use of a deadly or dangerous weapon or device) for which the
person may be prosecuted in a court of the United States, uses or carries a firearm,
or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the
punishment provided for such crime of violence or drug trafficking crime–
(i) be sentenced to a term of imprisonment of not less
than 5 years;
(ii) if the firearm is brandished, be sentenced to a term
of imprisonment of not less than 7 years; and
(iii) if the firearm is discharged, be sentenced to a
term of imprisonment of not less than 10 years.
(2) For purposes of this subsection, the term ‘drug trafficking crime’
means any felony punishable under the Controlled Substances Act
(21 U.S.C. 801 et seq.), the Controlled Substances Import and Export
Act (21 U.S.C. 951 et seq.), or chapter 705 of title 46.
As discussed above, Count Ten of the Indictment alleged that the “drug trafficking crime”
underlying the violation of Section 924(c) was conspiracy to possess with intent to distribute, and
to distribute, a quantity of a mixture and substance containing a detectable amount of cocaine base,
in violation of 21 U.S.C. §§ 841(a)(1) and 846. Section 841(a)(1) is part of the Controlled
Substances Act (“CSA”) and prohibits the possession with intent to distribute, and the distribution
of, controlled substances, including cocaine base. 21 C.F.R. § 1308.12. Section 846 provides that
any person who attempts or conspires to commit an offense in the CSA is subject to the same
penalties as those prescribed for the underlying offense. The maximum penalty for distribution, or
possession with intent to distribute, a quantity of cocaine base is not more than 20 years. 21 U.S.C.
§ 841(b)(1)(C). The offense constitutes a “felony” because it is an offense for which the maximum
term of imprisonment authorized exceeds one year. 18 U.S.C. § 3559(a); Moncrieffe v. Holder, 569
U.S. 184, 133 S.Ct. 1678, 1683, 185 L.Ed.2d 727 (2013); Lopez v. Gonzales, 549 U.S. 47, 127 S.Ct.
625, 631 n. 7, 166 L.Ed.2d 462 (2006). Therefore, the “drug trafficking crime” alleged as part of
Count Ten is a felony under the CSA and satisfies the definition set forth in Section 924(c)(2). See,
e.g., Acosta-Cazares v. United States, 995 F.2d 1066 (E.D. Ky. Mar. 9, 1993)(Conspiracy to
distribute, and to possess with intent to distribute, a quantity of cocaine under 21 U.S.C. § 846 is a
“drug trafficking crime” for purposes of 18 U.S.C. § 924(c)).
The cases relied on by the Petitioner do not indicate otherwise. In Descamps v. United States,
___ U.S. ___, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), the Supreme Court considered whether a
California burglary conviction qualifies as a “violent felony” for purposes of a sentence
enhancement under the Armed Career Criminal Act (ACCA). In Mathis v. United States, ––– U.S.
––––, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016), the Supreme Court considered whether an Iowa
burglary conviction qualifies as a “violent felony” under the ACCA. In Hill v. Masters, 836 F.3d
591, 595 (6th Cir. 2016), the Sixth Circuit determined that Descamps should be applied retroactively
on collateral review in analyzing whether a state law assault conviction constitutes a “crime of
violence” under the career offender sentencing guideline used to enhance the petitioner’s sentence.
In United States v. Hinkle, 832 F.3d 569 (5th Cir. 2016), the Fifth Circuit held that the defendant’s
prior Texas conviction for delivery of a controlled substance did not satisfy the career offender
guideline definition of “controlled substance offense.” All of these cases involve the determination
of whether a particular state law offense qualifies for a sentence enhancement under the ACCA or
the sentencing guidelines. None of them suggest that a federal felony drug trafficking conviction,
like that alleged in Count Ten, fails to satisfy the definition of a “drug trafficking crime” as defined
in Section 924(c)(2).
Any challenge to Count Ten on that basis, therefore, would have been unsuccessful, and
counsel was not ineffective for failing to raise such a challenge. See, e.g., Ludwig v. United States,
162 F.3d at 458 (Counsel is not required to raise meritless arguments to avoid a charge of
ineffective assistance of counsel). The Petitioner’s ineffective assistance of counsel claim is without
For the reasons set forth herein, the Court concludes that the Petitioner’s request for Section
2255 relief should be denied. Accordingly, this action is dismissed.
Should the Petitioner give timely notice of an appeal from this Memorandum, and
accompanying Order, such notice shall be treated as an application for a certificate of appealability,
28 U.S.C. § 2253(c), which will not issue because the Petitioner has failed to make a substantial
showing of the denial of a constitutional right. Castro v. United States, 310 F.3d 900 (6th Cir. 2002).
Given the Court’s determination that the Petitioner’s claim is without merit, it is
unnecessary to consider the Government’s arguments based on the statute of limitations and the
waiver clause of the Plea Agreement.
An appropriate order will be entered.
WAVERLY D. CRENSHAW, JR.
Chief United States District Judge
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