Edwards v. United States of America

Filing 55

MEMORANDUM OPINION OF THE COURT. Signed by Chief Judge Kevin H. Sharp on 2/14/17. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(am)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

JOHN PATRICK EDWARDS,

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Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

No. 3:14-cv-01256
Chief Judge Sharp

MEMORANDUM
This memorandum reflects the Court’s analysis underlying its recent Order overruling Movant’s
objection to the Magistrate Judge’s Report and Recommendation and denying Movant’s motion to vacate,
set aside or correct his sentence pursuant to 28 U.S.C. § 2255. (Docket No. 54.)
I.

STANDARD OF REVIEW

When a magistrate judge issues a report and recommendation regarding a dispositive matter, the
district court must review de novo any portion of the report and recommendation to which a specific
objection is made, and “may accept, reject, or modify the recommended disposition; receive further
evidence; or return the matter to the magistrate judge with instructions.” Fed. R. Civ. P. 72(b); 28 U.S.C.
§ 636(b)(1)(C); United States v. Curtis, 237 F.3d 598, 603 (6th Cir. 2001); Massey v. City of Ferndale, 7
F.3d 506, 510 (6th Cir. 1993). Federal courts have routinely deemed objections “waived” where the
objections merely restate the party’s arguments that were previously addressed by the magistrate judge.
See VanDiver v. Martin, 304 F.Supp.2d 934, 937 (E.D. Mich. 2004) (“An ‘objection’ that does nothing
more than state a disagreement with a magistrate’s suggested resolution, or simply summarizes what has
been presented before, is not an ‘objection’ as that term is used in this context.”); see also Charles v.
Astrue, No. 3:10–cv–134, 2011 WL 3206464 (E.D. Tenn. July 28, 2011).
II.

BACKGROUND

On February 3, 2012, Movant entered an open plea of guilty to one count of obstruction of justice,
which was accepted by the Honorable William J. Haynes, Jr. Order Accepting Plea Petition, USA v. John

Patrick Edwards, No. 3:11-cr-00083 (M.D. Tenn. Feb. 3, 2012), ECF No. 258; Transcript of ProceedingsPlea, id., (M.D. Tenn. Aug. 23, 2012), ECF No. 418 (hereinafter “Plea Tr.”). The government’s summary
of the facts underlying the charge to which Movant pleaded guilty was as follows:
If this case were to go to trial, the United States would prove the following facts.
As alleged in Count Two of the indictment, beginning on or about April 4, 2011
through April 18, 2011, in the Middle District of Tennessee and elsewhere, John
Edwards, aided and abetted by codefendant Rodney Mark Settles, did corruptly obstruct,
influence, and impede an official proceeding and attempted to do so through the
solicitation of money in exchange for information relating to the federal criminal
investigation which resulted in the charge in Count One in the pending indictment of this
case, in violation of Title 18, United States Code, Sections 1512(c)(2)(n)(2).
Specifically, on April 6, 2011, the FBI received information that Edwards’
codefendant in Count Two of the indictment, Rodney Mark Settles, who was not a law
enforcement officer, had detailed information about an ongoing federal criminal narcotics
investigation that involved federal wiretaps. Settles had indicated he had obtained this
information from an associate of his who was in law enforcement. Further, Settles stated
that something was about to happen that would bring the investigation to a conclusion,
and that he and his associate were willing to provide information about the investigation
so it could be passed on to the lead defendant in Count One of the indictment,
codefendant Zeeshan Syed,1 who was one of the targets of the federal investigation.
Settles stated that they would help Syed get out of trouble in exchange for a
couple hundred thousand dollars. The federal investigation to which he was referring to
was being conducted by the Drug Enforcement Administration and the Federal Bureau of
Investigation, and was an official proceeding as defined in Title 18, United States Code,
Section 1512(f)(1) and 1515.
The defendant had been a lieutenant with the Wilson County Sheriff's
Department, and had been assigned to the Wilson County Drug Task Force, and had
served as an FBI Task Force officer on that federal investigation.
In March 2011, the defendant was removed from his position as a Task Force
officer and suspended from the Wilson County Sheriff's Department following his arrest
by the Tennessee Bureau of Investigation on an unrelated matter.
Prior to being removed from his position, the defendant had worked on the
federal narcotics investigation for several months. Through his work on that investigation,
the defendant knew numerous crucial details of the investigation, including that it involved
several federal wiretaps and the identities of several target subjects, including Zeeshan
Syed and several of Syed’s co-conspirators.
The defendant knew that the conspiracy being investigated was a conspiracy to
possess and distribute cocaine and marijuana in the Nashville area. Additionally, the
defendant also knew the identity of a confidential informant involved in the investigation
who had a close relationship with Syed and had been providing information about the
conspiracy to the FBI since the summer of 2010.
Based upon the information the FBI received about Settles on April 6, 2011, the
FBI immediately began investigating Mr. Settles. For the next several days, the FBI was
1

The plea hearing transcript and other documents in this case occasionally misspell Mr. Syed’s name as
“Sayd.” The Court herein uses the accurate spelling as reflected in Case No. 3:11-cr-00083, in which Mr.
Syed was a defendant.
2

able to obtain evidence against Settles which demonstrated that Settles and Settles’
source of information, who was later determined to be the defendant, were attempting to
obstruct the ongoing federal investigation.
On April 11, 2001, Settles was detained for questioning by FBI agents and Task
Force officers and was transported to the FBI office in Nashville. At the FBI office, Settles
agreed to be interviewed and provide information about the defendant’s plan to sell
information to a member of the narcotics conspiracy. Settles advised the FBI that the
information he had about the investigation came from his friend and business partner,
John Edwards.
According to Settles, on or about April 4, 2011, the defendant contacted Settles
about an idea to help get him some money. The defendant knew Settles had a contact,
Noo Zeeshan Syed, who was the subject of a federal narcotics investigation.
The defendant asked Settles to see if Syed would pay for information about the
investigation. The defendant provided detailed information to Settles about the
investigation that the defendant thought could help Syed. The defendant told Settles he
wanted to trade that information about the federal investigation for $500,000.
The defendant had given the name of the informant to Settles -- excuse me, had
given the name of an informant to Settles, and Settles had provided the name of that
informant to Syed’s contact. Settles also told the FBI that, while the defendant initially told
Settles he wanted $500,000 for information about the federal narcotics investigation,
Settles had only asked for $100,000 for that information.
When Settles later told the defendant that Syed was only willing to pay $100,000
instead of the $500,000 the defendant initially wanted for the information, the defendant
responded that he also wanted a late model Range Rover in addition to the $100,000
payment.
Due to his involvement in the federal narcotics investigation, the defendant knew
Syed was also in the business of selling used cars. Syed advised the agents that the
defendant had directed Settles that the money from Syed was to be left in a safe at
Bidmore Auction, an auction company that Settles and the defendant operated together.
On the following day, April 12, 2011, at the direction of and under the supervision
of the FBI, Settles contacted the defendant via text message to arrange a meeting and
advise the defendant that he had good news. At the direction of and under the
supervision of the FBI, Settles then met with the defendant at Bidmore Auction for the
purpose of conducting a consensually monitored conversation.
During their meeting, Settles motioned to Settles’ pocket, indicating that he had
money he had purportedly received as a partial payment for providing information about
the investigation. The defendant mouthed that he was not going to talk aloud and
gestured to Settles not to speak out loud, either. The defendant then typed a message to
Settles, using a cell phone. The message stated that the defendant was not talking
because Settles had been out late the night before and had not returned the defendant's
phone calls. The defendant then typed out another message on his phone and directed
Settles to give the money to a Bidmore employee to deposit. The defendant left shortly
thereafter.
Settles gave $15,000 in cash, which the FBI had provided Settles, to the
employee of Bidmore, and then left Bidmore. Settles later spoke to that employee and
was told the defendant had taken that cash and arranged for it to be deposited into
Bidmore's business accounts.
Almost a week later, on April 18, 2011, again, at the direction of and under
supervision of the FBI, Settles met with the defendant for the purpose of a consensually
recorded meeting at the defendant’s residence. The defendant’s residence was located
3

at 931 Bass Lane, Mt. Juliet, Tennessee, located in the Middle District of Tennessee.
When Settles arrived at the defendant’s residence, Settles was directed by the
defendant to meet in the corner of the tool shed on the defendant’s property. The back of
the tool shed had a door, outside of which there was a caged German Shepherd and a
fire pit with a fire burning. The defendant then conducted a search of Settles to determine
if Settles was wearing or carrying a recording device as a cooperating witness for law
enforcement.
After searching Settles, a conversation then consisted of the defendant
alternating between writing messages down on pieces of paper and speaking with Settles
in a low voice or a whisper. After he wrote on pieces of paper, the defendant would then
go out the back door by destroy the evidence and what had been written by putting the
paper with the messages on it into the fire.
Prior to the conversation on April 18th, an FBI agent had provided false
information about a supposedly new informant to the federal investigation to the
defendant. Based upon that false information, during their conversation, the defendant
advised Settles that there was a new informant in the federal investigation, that the
defendant didn’t know who it was. The defendant said he would try to find out the identity
of the new informant.
The defendant then provided Settles with names of members of the drug
conspiracy who the defendant did not believe were the new informant. Therefore, the
defendant instructed Settles to tell them -- meaning Syed and his co-conspirators, to talk
only to certain individuals and their group and to act normal.
Settles told the defendant that “they” were worried and were looking for the snitch
the defendant had previously identified. The defendants then said it was “their” –
meaning -- again, meaning Syed and his co-conspirators’ -- own fault because they had
acted out of character, and the federal investigators had hidden the new informant.
Settles told the defendant he had seen the whole $100,000 payment. Settles then said
that “they,” meaning the defendant themselves, needed the money. The defendant
agreed and said they had expenses.
Referring to their business of running Bidmore Auction, Settles said that if they
did not get the money, they were done. The defendant agreed and said he understood.
The defendant then instructed Settles to go and get the money that day. The defendant
had previously given the names of two -- excuse me, had previously given the names of
the two lead federal agents on the federal investigation to Settles, but initially told Settles
not to pass this information on to Syed.
Near the conclusion of their meeting on April 18, 2011, Settles asked the
defendant if Settles should now provide the name of the agent in charge of the
investigation. The defendant said, I don't care.
As stated earlier, during his debriefing, Settles had previously told FBI agents
that, in addition to the $100,000 payment, the defendant also wanted a vehicle as
compensation for the information he was providing about the investigation. At the
conclusion of their meeting, Settles said that he was going to go downtown in order to get
the remaining money. And the defendant reminded him, I want my truck. Settles asked if
the defendant meant a Land Rover, and the defendant said no, the Range Rover.
Plea Tr., ECF No. 418, at 20–27.
The Court held a sentencing hearing on April 27, 2012, during which it determined that Movant’s
sentencing guidelines range was 108–135 months in prison, based on a total offense level of thirty-one
4

and a criminal history category I. Transcript of Proceedings-Sentencing, id., (M.D. Tenn. Aug. 23, 2012),
ECF No. 419, at 75 (hereinafter “Sentencing Tr.”). After hearing additional evidence related to sentencing
factors pursuant to 18 U.S.C. § 3553, the Court varied upward from the advisory guidelines range and
sentenced Movant to 220 months in prison – 4 months more than the government requested. Sentencing
Tr., ECF No. 419, at 130, 134; Judgment, id., (M.D. Tenn. May 2, 2012), ECF No. 322. The Court
described “three major concerns” supporting the lengthy sentence: (1) the defendant’s “serious and
material compromise” of the wiretap process that is “highly confidential . . . and is treated so by the court
and the agencies involved”; (2) the fact that the case involved a “major drug investigation,” a multi-million
dollar enterprise with Mexican sources, warehouses in Atlanta and more than 200 kilos of cocaine
transported into this district; and (3) “personal safety issues” arising from the violence associated with
Mexican drug cartels, the knowledge that individuals involved in the cases carried weapons, and the
solicitation of a murder contract by one of the principal targets of the investigation. Sentencing Tr., ECF
No. 419, at 131–32.

The Court also observed that Movant’s history as a law enforcement officer

indicated his awareness of the potential harm from his disclosure, and that the amount he demanded in
return for the disclosures reflected how significant he believed the information to be. Id. at 132. The Court
conveyed that the gravity of the risk in this case was underscored by evidence that the confidential
informant whose identity Movant attempted to sell had to be moved within 24 hours of the disclosure, and
that his location was still discovered by members of the criminal operation. Id. at 133.
The remainder of the relevant case history and applicable standards are accurately set forth in
the Report & Recommendation. The Magistrate Judge held an evidentiary hearing on Movant’s claims
spanning three days. (Docket Nos. 30–32.)
III.

MOVANT’S OBJECTIONS

The bulk of Movant’s brief in support of his objection (Docket No. 50) consists of repetition of the
factual assertions and arguments he advanced in his previous filings and does not constitute proper
objection to the Report & Recommendation. Accordingly, the Court only addresses his seven expressly
enumerated alleged errors in the Magistrate Judge’s factual findings.

5

A. Mexican Cartel
Movant asserts that the Magistrate Judge’s finding that Movant “knew at the time that some of the
conspirators included members of a Mexican drug cartel” has no basis in the record. (Docket No. 50, at
23 (quoting Docket No. 44, at 2).) Movant’s assertion is simply false. The lead FBI agent on the
underlying investigation testified at Movant’s sentencing hearing that two of the drug suppliers under
investigation were affiliated with the Gulf Cartel, a Mexican drug cartel, and that Movant was aware of that
fact. Sentencing Tr., ECF No. 419, at 10, 18–19. This objection is without merit.
B. Counsel’s Understanding of “C Plea”
Movant complains that the Magistrate Judge wrongly concluded that counsel effectively advised
Movant to accept a 10-year plea agreement, because counsel did not adequately understand what it
meant to plead guilty pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C). (Docket No. 50, at 24.)
Movant elicited evidence at the evidentiary hearing to suggest that one of the three attorneys counseling
Movant about the government’s offer lacked a high degree of familiarity with federal sentencing issues
(which is why he associated another attorney who had a great deal more experience in federal criminal
defense), and that there were a few errors in a worksheet prepared by another of his attorneys regarding
the potential application of certain federal sentencing guidelines to Movant’s case. However, regardless
of the terminology they used or the specific legal provisions they may have miss-cited, the testimony of all
three attorneys at the evidentiary hearing fully established that they understood and effectively explained
to Movant the key facts about the offer: that it was for a definite agreed sentence of 10 years and that he
risked a significantly higher sentence if he rejected it, either by going to trial or entering an open plea.
Moreover, the errors and alleged misunderstandings about federal sentencing procedures did not
affect the outcome of Movant’s case. Movant testified that he had never even seen the sentencing
guideline worksheet that contained the errors. (Docket No. 32, at 71.) Furthermore, the worksheet errors
in question overstated the base offense level and resulting guidelines range for then-anticipated
superseding drug charges against Movant (Docket No. 32, at 50), so the only logical impact of the error
would have been to make Movant more likely to take the 10-year deal, which he now maintains he would
have done, but for the ineffectiveness of counsel. (See, e.g., Docket No. 30, at 63–64.)
6

Similarly,

Movant’s attempt to show that one of his attorneys was unclear about the procedure following a judge’s
refusal to accept a C plea failed to demonstrate any impact on his case when (a) the evidence indicates
that the issue of potential rejection of the plea agreement was not a factor in Movant’s decision to refuse
the deal, (b) the agreement itself expressly provided that either party could withdraw in the event that the
judge rejected the agreed sentence (Docket No. 31, at 76–77), and (c) the hypothetical scenario raised at
the evidentiary hearing – that the Court would accept Movant’s 10-year plea agreement pursuant to Rule
11(c)(1)(C) but then impose a sentence of greater or less than 10 years (Docket No. 31, at 47) – is a legal
impossibility under the Rule. See Fed. R. Crim. P. 11(c)(3), (4) and (5). Accordingly, Movant has failed to
demonstrate either that counsel’s advice about the proposed plea agreement was deficient or that any
alleged deficiencies had any prejudicial effect on his case. This objection is without merit.
C. Movant’s Credibility
Movant disputes the Magistrate Judge’s finding that his testimony was “significantly impeached”
and lacked credibility. (Docket No. 50, at 25.)

Specifically, he argues that the Magistrate Judge

“erroneously” concluded that Movant’s testimony that he believed he was entering a plea agreement with
a guaranteed sentence of no more than 90 months was impeached by the recording of the pre-plea
meeting with his attorneys, during which he “was advised no fewer than three times that the maximum
term to which he could be sentenced was twenty years.” (Id. (quoting Docket No. 44, at 5).) To the
contrary, the Magistrate Judge’s assessment appears to have been completely accurate and is
overwhelmingly supported by the record.
Shortly before his plea hearing, Movant met with two of his attorneys – Jack Lowery, Jr. and Sr. –
who recorded most of the meeting. During the meeting, the attorneys advised Movant about the type of
plea he was considering: “it’s an open plea, . . . there’s not even an attached plea agreement” (Docket
No. 33-1, at 3); “There is no plea agreement in your case. We’ve got the single petition, ok, this four-page
petition. And there is no plea agreement . . .” (id.); “in an open plea, it’s just that, it’s open there are no
agreements. And it’s ultimately up to the judge.” (Id. at 27.) They further advised him that the government
had put them “on notice that they were going to try to enhance [Movant’s sentence] any way they . . .
could,” and the “sentence could carry up to 20 years” (Docket No. 33-1, at 1); “the cap in this statute that
7

he’s pleading to is 20 years. And [the government is] going to try to get him there.” (Id. at 5.) Counsel
“guarantee[d]” that the Court would apply offense level increases for Movant’s leadership role and abuse
of position of trust, and explained that if the government proved the amount of drugs in the underlying
conspiracy was 50 kilos, his final offense level would be 31 with a resulting guidelines range of 108–135
months. (Id. at 8–9.) If the government only proved 5 kilos, his level would be 27 with a resulting range of
70–87 months.2 (Id. at 9.) However, counsel unambiguously advised him that “the Judge can depart from
the guidelines and . . . [h]e can go upward. He’s not bound by these goddamn guidelines.” (Id. at 6.)
They repeatedly explained that the government was likely to try to prove that Movant had put law
enforcement agents’ lives in jeopardy and didn’t “care about life,” that the case called for an increased
sentence as deterrence (id. at 6, 11, 12), and that the Court could increase his sentence beyond the
guidelines range on those bases pursuant to § 3553. (Id. at 5, 10, 11.) Counsel cautioned him that by
entering an open plea, he was “gambling” and taking a “risk,” and that if the Judge accepted the
government’s § 3553 arguments, “you’re looking at something that could shoot up on you.” (Id. at 5, 6.)
Neither attorney at the meeting recommended the open plea, and one of them unequivocally advised
against it and argued in favor of accepting the 10-year plea agreement instead: “I don’t think you ought to
take today, I’ll say it bluntly. I don’t think you ought to plea open on this damn case. I think, the ten year
offer is a hell of a better – better deal.” (Id. at 5.)
It is clear from the record of that meeting that Movant rejected his attorneys’ advice, not because
he had any confusion about the choices he faced, but because he believed, based on what he had heard
about sentences imposed in cases he considered to be more serious than his, that the Court would
sentence him to less than ten years with an open plea. (Id. at 7–8, 11, 30.) Specifically, he speculated
2

The base offense level for obstruction of a criminal investigation is the higher of (1) the level determined
under U.S.S.G. § 2J1.2, or (2) six levels lower than the level that would apply under § 2X3.1 for being an
accessory after the fact to the underlying crime. § 2J1.2(c)(1). This provision of the guidelines has been
referred to by the parties in this case as “the cross-reference.” Because the underlying crime in Movant’s
case was a drug conspiracy, the amount of drugs involved in the conspiracy was relevant to his base
offense level under 2X3.1. Pursuant to § 2D1.1, the base offense level for 50 kilograms is 36, resulting in
a level of 30 under 2X3.1, whereas the base offense level for only 5 kilograms is 32, resulting in a 2X3.1
level of 26. (Docket No. 31, at 132–33.) The investigation that Movant was charged with obstructing was
the long-term investigation into the drug conspiracy involving members of the Mexican drug cartel. His
continued insistence that drug quantity did not affect his offense level, based on the government’s
acknowledgment that the wholly separate amount of drugs Movant personally conspired to sell would not
affect his guidelines range, is specious. (See Docket No. 50, at 18.)
8

that his sentence would be seven years. (Id. at 8.) But Movant clearly knew that this expectation was
based on his own conjecture rather than any guarantee under the law or agreement with the government:
“I think it will fall below 10 years. I mean I don’t know.” (Id. at 8 (emphasis added).) Near the end of the
meeting, Lowery, Jr. reiterated to Movant that “[t]here is no plea agreement here” and “basically we go in
there and pleading, and you’re going to get anywhere from 0 to 20 years,” and Movant responded “I
know, I know,” and acknowledged that “[t]he judge can do whatever they want to do.” (Id. at 29.) Movant
said to counsel “I’m sorry dude,” presumably for choosing to proceed with the open plea against counsel’s
advice, and went on to say “I may be wrong . . . I may be wrong and I know they’re gonna fight to do
whatever they can to me, but . . . I mean I just don’t see” how he could receive a harsher sentence than
the Court had imposed in another case about which he had heard. (Id. at 29–30.)
Movant tried to establish that he was confused about the nature of his plea by testifying that after
Lowery advised him not to take the open plea, his other attorney, Frank Lannom, advised him to take it
and said that he was “in the best possible position.” (Docket No. 30, at 19.) Specifically, he testified that
Lowery advised him that the drug quantity involved in the underlying conspiracy could affect his sentence
pursuant to U.S.S.G. § 2X3.1, but then Lannom told him that the 2X3.1 cross-reference making drug
quantity relevant did not apply to his case, that 90 months was the maximum sentence he would receive,
and that his likely sentence would be even lower than that. (Docket No. 30, at 19–21.) But that account of
the allegedly conflicting advice contradicts Movant’s testimony immediately before and after it, when he
testified that Lowery had advised that the drug quantity was irrelevant, and that it was Lannom who said
that it was “the most important thing in the case” and would determine what sentence he received. (Id. at
17–18, 21–22.) It also contradicts Movant’s original allegation that Lowery is the one who “entice[d him]
into taking a plea” by advising him that the drug quantity would not affect his sentence. (Docket No. 1, at
14; Docket No. 30, at 17–18.) And Lannom himself testified that he had determined “way before” the date
of Movant’s plea that § 2X3.1 applied to his case and made the drug quantity relevant. (Docket No. 30, at
188–89.)

Moreover, it is clear from Movant’s statements during the recorded conversation with the

Loweries that he had already made up his mind to take an open plea, despite accurate advice from
counsel about the factors affecting his guidelines range (including drug quantity, leadership role and
9

abuse of position of trust) and the possibility that the Court would impose an above-guidelines sentence.
Movant cannot credibly assert that any allegedly deficient advice he might have received from Lannom
after that meeting was a deciding factor in his choice to enter the open plea.
Accordingly, the Magistrate Judge properly found that Movant’s testimony that he believed at the
time of his plea that “they couldn’t go over 90 something months and that that’s what the plea was for”
(Docket No. 30, at 24), and that he did not understand what it meant to take an open plea (id. at 19), was
“simply unbelievable.”3 (Docket No. 44, at 7.) Even on paper, that obvious falsehood calls into question
the credibility of Movant’s entire account of the relevant events, and the Magistrate Judge had the
additional advantage of being able to observe the demeanor of the Movant and the other witnesses as
they gave their conflicting testimony. Movant’s objection regarding his credibility and the extent to which
he was impeached at the hearing is without merit.
D. “Of His Own Free Will”
Movant objects to the Magistrate Judge’s observation that Movant told his attorneys at the preplea meeting “that he wanted to enter an open plea, and that he was doing it of his own free will.” (Docket
No. 44, at 7 (quoted in Docket No. 50, at 25).) Movant cites his own evidentiary hearing testimony to the
effect that he would not have used the “of my own free will” language unless his attorneys had told him,
during a portion of the conversation that was not recorded, to use those words. (Docket No. 50, at 25–
26.)
This objection is inconsequential, because Movant’s denial that the phraseology was his does not
equate to a denial that the decision to enter the plea was his. As discussed above in subsection C, the
recording of the meeting leaves no room for doubt that Movant made his own decision, against his
attorneys’ advice, to take an open plea. That fact is even clearer from the audio recording than it is from
the transcript, because the audio more effectively conveys how assertive Movant was in the conversation,
and his willingness to interrupt or challenge his attorneys any time he disagreed or did not understand

3

The Court limits its analysis to the single example of impeachment raised in Movant’s objection (Docket
No. 50, at 25), but notes that the same evidence also belies Movant’s testimony that he was not informed
until the day of his sentencing hearing that the government intended to seek an above-guidelines
sentence. (Docket No. 30, at 50–51, 144–45.)
10

what they were saying. He testified that the decision was “based upon the information I had at the time,”
which he claims “was wrong” (Docket No. 30, at 106), but – again, as discussed above – that information
included the fact that the government intended to seek a sentence as close to the 20-year maximum as
possible, and that there were factual and legal bases to do so. This objection is without merit.
E. Advice Regarding Right to Allocute
It is unclear whether Movant is objecting to the Magistrate Judge’s finding that he was aware of
his right to address the Court at sentencing, or to the suggestion that Movant’s testimony on that point at
the evidentiary hearing was inconsistent.

The record clearly supports both findings.

On direct

examination, when asked if his attorneys had “talk[ed] about your right to address the court prior to having
a sentence imposed,” Movant responded “No, I didn’t know anything about being able to do that.” (Docket
No. 30, at 53.) But on cross-examination, he acknowledged that days before the hearing, he and his
attorneys had discussed whether he would “give a statement at [the] sentencing hearing,” which he now
knows is called an allocution, and that they advised him not to do so – “absolutely no.” (Id. at 76.) Still
later, he again denied that his attorneys ever told him that he could “stand up in front of the judge and
speak on [his] own behalf.” (Id. at 158.)
Movant’s admission that his attorneys did discuss with him the possibility of giving a statement at
his sentencing hearing is corroborated by Lowery, Jr.’s testimony (Docket No. 32, at 20), and the Court
concludes it is the more credible version of the facts. That Movant may not have known the legal term
“allocution” at the time of that discussion has no bearing on whether he understood the substance of his
right or was effectively advised about whether to exercise it. To the extent his objection can be construed
to raise the merits of his claim that his attorneys were ineffective in preventing him from allocuting, the
Magistrate Judge properly found that counsel had a strategic reason for not wanting Movant to allocute,4
and that Movant has failed to demonstrate prejudice by not establishing what he would have said or how

4

That strategic decision, based on concern that Movant would fail to accept responsibility and lose his 3level reduction, was understandable in light of Movant’s attempt to shift blame to his co-conspirator, his
wife and others during the pre-plea meeting (Docket No. 33-1, at 13–14), and proved correct at the
evidentiary hearing in this case when Movant hedged on his responsibility and claimed that the witnesses
who testified against him at the sentencing hearing lied about relevant facts. (Docket No. 30, at 46, 59–
61,76–80.)
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it would have affected the outcome of his case.
F. Movant’s Understanding of His Plea
Movant argues that the Magistrate Judge erroneously failed to conclude that on the day he
entered his open plea, Movant believed that he had a plea agreement. (Docket No. 50, at 27.) He
accurately observes that the plea petition form erroneously references a plea agreement and states that
the plea is a result of negotiations between counsel and the government. But Movant’s understanding of
what was happening was clearly not affected by the language of the petition, which he claims he never
read. (Docket No. 30, at 23.)

Moreover, as discussed above in subsection C, Movant’s recorded

conversation with counsel before his plea hearing firmly establishes that he understood the nature of his
open plea and the risk he was taking by entering it. This objection is without merit.
G. Counsel’s Alleged Admission of Mistake
Movant objects to the Magistrate Judge’s finding that Movant’s claim that Lannom later
acknowledged and apologized for giving him bad advice lacked credibility. (Docket No. 50, at 28.)
Although Movant’s objection does not provide a citation, that claim first appears in the record in his
rebuttal testimony near the conclusion of the evidentiary hearing, and specifically relates to the issue
(briefly addressed in subsection C above) of the application of the sentencing guidelines’ “crossreference” to guidelines for the underlying conspiracy. (Docket No. 32, at 77.) Much like the “free will”
objection, this objection is inconsequential because an attorney’s apology for an error, even if it
happened, would not suffice to establish ineffective assistance. Moreover, upon review of the record, the
Court expressly adopts the Magistrate Judge’s finding that the claim that Movant could have received
such an acknowledgment and apology, but failed to raise it in either his original or amended § 2255
motion, his pre-hearing briefs or his initial hearing testimony, is unworthy of any belief.

And, as

mentioned above, such a claim is contradicted by Movant’s own testimony that prior to his plea, Lannom
told him that drug quantity was important to the case and would affect his sentence. (Docket No. 30, at
18.) This objection is without merit.

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IV. ADDITIONAL SUPPORT FOR THE MAGISTRATE JUDGE’S CONCLUSIONS
As a general matter, all of Movant’s claims that counsel were ineffective for failing to investigate
or present witnesses, evidence or citations would fail, regardless of any alleged deficiencies in counsel’s
work, because he failed in this case to furnish any of the allegedly missing evidence or information as
required to demonstrate prejudice. See Hodge v. Haeberlin, 579 F.3d 627, 640 (6th Cir. 2009) (petitioner
fails to prove prejudice where he “gives no details about the substance” of evidence he alleges was
ineffectively omitted and simply speculates that such evidence would have affected the case).
Moreover, the record reflects only one instance of actual deficiency in counsel’s performance,
and that is the failure to object to the sentence imposed at the conclusion of the hearing. The Magistrate
Judge correctly found that, with regard to Movant’s appeal of the substantive reasonableness of his
sentence, that failure to object did not prejudice him, because the Court of Appeals still applied an abuseof-discretion standard to his claim. The Court would add that the Court of Appeals’s ruling establishes
that no prejudice arose from the failure to object with regard to Movant’s procedural claims on appeal
either. Although the court stated that those claims were reviewed for plain error because of the lack of
objection, it went on to find that this Court’s rulings were “explicit” and its justification for the upward
variance was “adequately explained . . . based on the nature and sophistication of the drug conspiracy,
the fact that Edwards violated the highly confidential process related to wiretaps, and the fact that
Edwards knowingly put numerous individuals in serious danger for monetary gain.” Information Copy of
6CCA Order/Opinion, USA v. John Patrick Edwards, No. 3:11-cr-00083 (M.D. Tenn. April 30, 2013), ECF
No. 569. Given those findings, there is no reasonable probability that the outcome of either Movant’s
sentencing hearing or appeal would have been different even if counsel had objected.

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V. CONCLUSION
For the reasons explained above and in the R&R, as well as those already mentioned in the
Court’s final Order, the Magistrate Judge correctly concluded that Movant did not establish that he was
entitled to relief under § 2255. The motion was accordingly denied.

Kevin H. Sharp, Chief Judge
United States District Court

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