Ballew v. United States of America

Filing 24

ORDER DENYING AND DISMISSING MOTION PURSUANT TO 28 U.S.C. § 2255, DENYING CERTIFICATE OF APPEALABILITY, CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH, AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL. Signed by Chief Judge J. Daniel Breen on 3/6/17. (Breen, J.)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
_____________________________________________________________________________
PARIS RAYON BALLEW,

)
)
Petitioner,
)
)
v.
)
No. 1:13-cv-01198-JDB-egb
)
Cr. No. 1:09-cr-20407-JDB-1
UNITED STATES OF AMERICA,
)
)
Respondent.
)
_____________________________________________________________________________
ORDER DENYING AND DISMISSING MOTION PURSUANT TO 28 U.S.C. § 2255,
DENYING CERTIFICATE OF APPEALABILITY,
CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH, AND
DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

Before the Court is the pro se 28 U.S.C. § 2255 (“§ 2255”) motion of Petitioner, Paris
Rayon Ballew, to vacate, set aside, or correct his sentence (the “Petition”). (ECF No. 1).1
Ballew, Bureau of Prisons (“BOP”) register number 23188-076, is currently housed at the
Federal Correctional Institution, Manchester in Manchester, Kentucky. The United States has
filed a response in opposition. (ECF No. 18.) For the reasons discussed below, the Petition is
DISMISSED.
I.

BACKGROUND
A.

Case Number 09-cr-20407

On September 30, 2009, a federal grand jury returned an indictment charging Ballew,
who had previously been convicted of a crime punishable by imprisonment for a term exceeding
one year, with knowingly possessing and receiving a firearm that had been shipped and
1

Petitioner has one other outstanding motion, a motion for reconsideration. (ECF No.
14.) As the Petition is dismissed, this motion is DENIED AS MOOT.

transported in interstate commerce, in violation of 18 U.S.C. § 922(g). Redacted Indictment,
United States v. Ballew, No. 09-20407 (W.D. Tenn. Sept. 30, 2009) (Criminal (“Cr.”) ECF No.
4). A superseding indictment filed on March 15, 2010, retained the § 922(g) charge and added
one count of knowing and intentional possession with intent to distribute approximately 281
grams of marijuana, in violation of 21 U.S.C. § 841(a)(1), and one count of knowingly
possessing a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C.
§ 924(c)(1)(2).

(Redacted Indictment, Cr. ECF No. 52.) Attorney A. Russell Larson was

appointed to represent Ballew. After Petitioner pleaded not guilty, a jury trial commenced on
August 24, 2010. (Minute (“Min.”) Entry, Cr. ECF Nos. 89–91, 94.) He was convicted on all
counts. (Min. Entry, Cr. ECF No. 100.)
Following Ballew’s conviction, the United States Probation Office conducted a
presentence investigation and prepared a report (“PSR”) in anticipation of sentencing. (See
PSR.) As a juvenile, Petitioner was found delinquent with respect to three counts of aggravated
robbery and one count of attempted aggravated robbery. (PSR at ¶ 22.) He was also convicted
as an adult of one count of attempted aggravated robbery. (Id. at ¶ 23.) These convictions
qualified the inmate as an armed career criminal under 18 U.S.C. § 924(e), which carries a
mandatory minimum sentence of 180 months. (Id. at ¶ 23.) Further, the Probation Office
concluded that Petitioner “used or possessed the firearm . . . in connection with . . . a controlled
substance offense,” subjecting him to an automatic offense level adjustment of 34.

U.S.

Sentencing Guidelines Manual (“U.S.S.G.”) § 4B1.4(b)(3)(A) (2009);2 see PSR at ¶ 18. Finally,
because Ballew possessed a firearm in furtherance of a drug trafficking crime, he qualified for a
mandatory minimum sentence of five years, “to run consecutive to any mandatory minimum
2

The 2009 edition of the Sentencing Guidelines Manual was used in this case. (PSR at

¶ 10.)
2

applied in this case.” (PSR at ¶ 21; see 18 USC § 924(c).) His criminal history category was VI.
(PSR at ¶ 27.) The Probation Office calculated his guideline range at 262 to 327 months, plus 60
months consecutive. (Id. at 19.)
On December 21, 2010, attorney Jon York was appointed to represent Petitioner at
sentencing. (Cr. ECF No. 120.) At the hearing on April 27, 2011, the Court sentenced him to a
total of 240 months. (Min. Entry, Cr. ECF No. 146.) Ballew received the mandatory minimum
sentences required by 18 U.S.C. §§ 924(c) and 924(e), imposed consecutively. His sentence also
included three years of supervised release and a $300 special assessment. (Id.) Petitioner timely
appealed, Cr. ECF No. 149, and the Sixth Circuit Court of Appeals affirmed the judgment on
August 6, 2012, United States v. Ballew, 491 F. App’x 589 (6th Cir. 2012).
B.

Case Number 13-cv-1198

On June 24, 2013, Petitioner moved to vacate, set aside, or correct his sentence pursuant
to 28 U.S.C. § 2255. (ECF Nos. 1–2.) He filed a memorandum of law on January 21, 2014,
ECF No. 9, and the government filed its response in opposition on September 1, 2014, ECF No.
18. Ballew has also filed a reply, ECF No. 21, and an addendum in support of the current
petition, ECF No. 22. The inmate advances numerous arguments, including multiple claims of
ineffective assistance counsel and multiple arguments challenging his status as an armed career
criminal under 18 U.S.C. § 924(e). (ECF Nos. 9, 22.) He also requests an evidentiary hearing.
(ECF No. 2 at 41.)
II.

LEGAL STANDARDS
Pursuant to 28 U.S.C. § 2255(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
3

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.
“A prisoner seeking relief under 28 U.S.C. § 2255 must allege either: (1) an error of
constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of
fact or law that was so fundamental as to render the entire proceeding invalid.” Short v. United
States, 471 F.3d 686, 691 (6th Cir. 2006) (citation and internal quotation marks omitted).
Generally speaking, “[d]efendants must assert their claims in the ordinary course of trial and
direct appeal.” Grant v. United States, 72 F.3d 503, 506 (6th Cir. 1996). A § 2255 motion is no
substitute for a direct appeal. See Ray v. United States, 721 F.3d 758, 761 (6th Cir. 2013).
Constitutional claims that could have been raised on direct appeal, but were not, will be barred
by procedural default unless the petitioner demonstrates cause and prejudice sufficient to excuse
his failure to raise these issues previously. El-Nobani v. United States, 287 F.3d 417, 420 (6th
Cir. 2002) (withdrawal of guilty plea); Peveler v. United States, 269 F.3d 693, 698–99 (6th Cir.
2001) (new Supreme Court decision issued during pendency of direct appeal); Phillip v. United
States, 229 F.3d 550, 552 (6th Cir. 2000) (trial errors). Alternatively, a defendant may obtain
review of a procedurally defaulted claim by demonstrating his “actual innocence.” Bousley v.
United States, 523 U.S. 614, 622 (1998).
Claims of ineffective assistance of counsel, however, are not subject to the ordinary rules
of procedural default, as “failure to raise an ineffective-assistance-of-counsel claim on direct
appeal does not bar the claim from being brought in a later, appropriate proceeding under
§ 2255.” Massaro v. United States, 538 U.S. 500, 509 (2003). Indeed, “[i]n most cases a motion
brought under § 2255 is preferable to direct appeal for deciding claims of ineffective assistance.”

4

United States v. Ferguson, 669 F.3d 756, 762 (6th Cir. 2012) (quoting Massaro, 538 U.S. at
504)).
After a § 2255 motion is filed, the Court reviews it, and “[i]f it plainly appears from the
motion, any attached exhibits, and the record of prior proceedings that the moving party is not
entitled to relief, the judge must dismiss the motion . . . .” Rule 4(b), Rules Governing Section
2255 Cases in the United States District Courts (“Section 2255 Rules”). “If the motion is not
dismissed, the judge must order the United States attorney to file an answer, motion, or other
response within a fixed time, or to take other action the judge may order.” Id. The movant is
entitled to reply to the government’s response. Rule 5(d), Section 2255 Rules. The Court may
also direct the parties to provide additional information relating to the motion. Rule 7, Section
2255 Rules.
“In reviewing a § 2255 motion in which a factual dispute arises, ‘the habeas court must
hold an evidentiary hearing to determine the truth of the petitioner’s claims.’” Valentine v.
United States, 488 F.3d 325, 333 (6th Cir. 2007) (quoting Turner v. United States, 183 F.3d 474,
477 (6th Cir. 1999)). ‘“[N]o hearing is required if 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 Arredondo v. United States, 178 F.3d 778, 782 (6th Cir.
1999)). Where the judge considering the § 2255 motion also presided over the criminal case, the
judge may rely on his or her recollection of the prior case. Blanton v. United States, 94 F.3d 227,
235 (6th Cir. 1996); see also Blackledge v. Allison, 431 U.S. 63, 74 n.4 (1977). A defendant has
the burden of proving that he is entitled to relief by a preponderance of the evidence, Pough v.
United States, 442 F.3d 959, 964 (6th Cir. 2006), and a § 2255 motion may be dismissed if it
only makes vague conclusory statements without substantiating allegations of specific facts and,

5

consequently, fails to state a viable claim, Ryals v. United States, No. 1:05-cv-238, 2009 WL
595984, *5 (E.D. Tenn. March 6, 2009); Stamper v. United States, No. 1:05-cv-317, 2008 WL
2811902, * 1 (E.D. Tenn. July 18, 2008).
III.

ANALYSIS
A.

The Armed Career Criminal Act

Ballew presents several different claims arguing that he was improperly sentenced under
the Armed Career Criminal Act (“ACCA”).

The ACCA imposes a mandatory minimum

sentence of fifteen years for defendants who are convicted of violating 18 U.S.C. § 922(g) and
have “three previous convictions . . . for a violent felony or a serious drug offense, or both,
committed on occasions different from one another . . . .” 18 U.S.C. § 924(e)(1). The Act
defines a “violent felony” as:
any crime punishable by imprisonment for a term exceeding one year . . . that—
(i) has as an element the use, attempted use, or threatened use of physical force
against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise
involves conduct that presents a serious potential risk of physical injury to
another.
§ 924(e)(2)(B).
1.

Johnson claim

On June 27, 2016, Petitioner filed an addendum to his § 2255 petition seeking review
under Johnson v. United States, 133 S. Ct. 2551 (2015).3 (ECF No. 22.) He argues that his
juvenile convictions for aggravated robbery and attempted aggravated robbery no longer qualify
as predicate convictions under the ACCA in light of Johnson. (ECF No. 22 at 1.) In that case,
3

In Welch v. United States, the Supreme Court held that its ruling in Johnson “announced
a substantive rule that has retroactive effect in cases on collateral review,” allowing Ballew to
raise a Johnson claim in his habeas petition. 136 S. Ct. at 1268.
6

the Supreme Court struck down as void for vagueness the ACCA’s residual clause, which
qualified as a “violent felony” any felony that “otherwise involves conduct that presents a serious
potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii). The Court made clear
that its “decision does not call into question application of the Act to the four enumerated
offenses, or the remainder of the Act’s definition of a violent felony.” Johnson, 135 S. Ct. at
2563. These other, unaffected sections of the ACCA are commonly referred to as the “use-offorce clause” (§ 924(e)(2)(B)(i)) and the “enumerated-offense” clause (the first portion of §
924(e)(2)(B)(ii)). United States v. Priddy, 808 F.3d 676, 687 (2015).
Johnson has no bearing on Ballew’s case because he was not sentenced under the residual
clause of the ACCA. The Sixth Circuit has “held that a Tennessee conviction for robbery
qualifies as a violent felony under the ACCA’s use-of-force clause.” Id. at 686 (citing United
States v. Mitchell, 743 F.3d 1054, 1059 (6th Cir. 2014)). “More recently, [the court] held . . .
that the Supreme Court’s recent decision in Johnson ‘did not affect the “use of physical force
clause”’ and affirmed a defendant’s ACCA-enhanced sentence because his prior Tennessee
robbery conviction qualified as a violent felony under the use-of force clause.” Id. (quoting
United States v. Kemmerling, 612 F. App’x 373, 376 (6th Cir. 2015)). The court also considered
whether Johnson disrupted its holding in Mitchell:
The Mitchell court found that under the categorical approach, a Tennessee
robbery conviction is a violent felony under both the use-of-force clause and the
residual clause. The conviction need only qualify as a violent felony under one of
the clauses. Therefore, even in light of the Supreme Court’s invalidation of the
residual clause, this Court’s determination remains unchanged that under the
categorical approach, robbery in Tennessee is a predicate offense under the use
of- force clause.

7

Id. Thus, Petitioner’s convictions for aggravated robbery and attempted aggravated robbery
qualify as predicate offenses independent of the ACCA’s residual clause. Johnson does nothing
to vitiate the validity of his sentence and his claim on this ground is DENIED.
2.

Claims under Alleyne and Descamps

Ballew also avers that he is entitled to relief from his sentence pursuant to Alleyne v.
United States, 133 S. Ct. 2151 (2013), and Descamps v. United States, 133 S. Ct. 2276 (2013).
(ECF No. 9 at 10–11.) Both cases were decided after Petitioner’s conviction became final
following his direct appeal. “Unless they fall within an exception to the general rule, new
constitutional rules of criminal procedure will not be applicable to those cases which have
become final before the new rules are announced.” Teague v. Lane, 489 U.S. 288, 310 (1989).
The first exception is that “[n]ew substantive rules generally apply retroactively.” Schriro v.
Summerlin, 542 U.S. 348, 351 (2004). “Second, new ‘watershed rules of criminal procedure,’
which are procedural rules ‘implicating the fundamental fairness and accuracy of the criminal
proceeding,’ will also have retroactive effect.” Welch v. United States, 136 S. Ct. 1257, 1264
(2016) (quoting Saffle v. Parks, 494 U.S. 484, 495 (1990)).
Ballew asserts that Alleyne and Descamps created new rules of constitutional law that
applied retroactively to cases on collateral review. (ECF No. 21 at 13–17.) In In re Mazzio, 756
F.3d 487 (6th Cir. 2014), the Sixth Circuit directly addressed and rejected this argument with
respect to Alleyne:
“[A] new rule is not ‘made retroactive to cases on collateral review’ unless the
Supreme Court holds it to be retroactive.” Tyler v. Cain, 533 U.S. 656, 663, 121
S.Ct. 2478, 150 L.Ed.2d 632 (2001). Even assuming that Alleyne announced a
new rule, we cannot identify any Supreme Court decision that makes Alleyne’s
ruling retroactively applicable to cases on collateral review, nor does any
language in Alleyne suggest that the Supreme Court was making the new rule it
announced retroactively applicable to cases on collateral review. Therefore, any

8

new rule announced in Alleyne has not been made retroactive to cases on
collateral review by the Supreme Court.4
Id. at 489–90 (footnotes omitted). Accordingly, Petitioner’s reliance on Alleyne is misplaced and
his claim on this ground is DENIED.
As for Descamps, the Sixth Circuit has noted that “[t]he Supreme Court in Descamps
explained that it was not announcing a new rule, but was simply reaffirming the Taylor/Shepard
approach, which some courts had misconstrued.” United States v. Davis, 751 F.3d 769, 775 (6th
Cir. 2014). This holding is not, however, dispositive to the retroactivity issue. “Under the
Teague framework, an old rule applies both on direct and collateral review, but a new rule is
generally applicable only to cases that are still on direct review.” Whorton v. Bockting, 549 U.S.
406, 416, (2007); see also Hill v. McMackin, 893 F.2d 810, 813–14 (6th Cir. 1989) (“Teague
does not bar retroactive application of rules when the case does not announce a new rule.”),
overruled on other grounds recog’d, Couch v. Jabe, 951 F.2d 94 (6th Cir. 1991). An “old rule”
is one that was “in existence at the time of [the petitioner’s] conviction.” Whorton, 549 U.S. at
415.
Using this framework, the Eleventh Circuit “ha[s] held that the rule in Descamps is not
new and thus is retroactive in a first § 2255 motion case.”5 In re Griffin, 823 F.3d 1350, 1356

4

While the Sixth Circuit has not explicitly held that Alleyne announced a new rule,
several other circuits have held so but noted that the new rule has not been made retroactive to
cases on collateral review. United States v. Reyes, 755 F.3d 210, 212 (3d Cir. 2014); In re
Payne, 733 F.3d 1027, 1029 (10th Cir. 2013); Simpson v. United States, 721 F.3d 875, 876 (7th
Cir. 2013); see Mazzio, 756 F.3d at 490 n.2 (citing Simpson and Payne).
5

That court has also held, however, that “Descamps is not retroactive for purposes of a
second or successive § 2255 motion.” In re Hires, 825 F.3d 1297, 1303 (11th Cir. 2016). Other
circuits that have considered Descamps’ retroactivity have done so either in the context of
successive § 2255 petitions or untimely initial petitions. See Headbird v. United States, 813 F.3d
1092 (8th Cir. 2016) (initial but untimely § 2255 petition); Smith v. United States, No. 15-73591,
2016 WL 7176662, at *1 (9th Cir. Dec. 9, 2016) (successive); In re Jackson, 776 F.3d 292 (5th
Cir. 2015) (successive); United States v. Montes, 570 F. App’x 830, 831 (10th Cir. 2014)
9

(11th Cir. 2016) (citing Mays v. United States, 817 F.3d 728, 734 (11th Cir. 2016)). While the
Sixth Circuit has not spoken in such explicit terms, it has briefly addressed this issue. In a case
concerning a habeas petition brought under 28 U.S.C. § 2241, the court noted that “[t]he
Government further concedes that Descamps and [United States v.] Royal[, 731 F.3d 333 (4th
Cir. 2013)] apply retroactively.”6 Hill v. Masters, 836 F.3d 591, 596 (6th Cir. 2016). The court
then reversed the district court’s denial of Hill’s petition in part because he “received the [career
offender] enhancement based on a prior conviction that a subsequent, retroactive change in
Supreme Court jurisprudence reveals is not a predicate offense.” Id. at 600 (emphasis added).
Viewing this signaling by the Sixth Circuit together with the Eleventh Circuit’s clearer
precedent, the Court will evaluate Ballew’s claim under Descamps on the merits, as the instant
petition is his “first and only 28 U.S.C. § 2255 motion to vacate his sentence.” Mays, 817 F.3d
at 730.
In Descamps, the Supreme Court “clarifie[d] the analytical approach that sentencing
courts must use to determine if a prior conviction is a predicate offense under the ACCA.”
United States v. Mitchell, 743 F.3d 1054, 1063 (6th Cir. 2014). “[C]ourts use what has become
known as the ‘categorical approach’: They compare the elements of the statute forming the basis
of the defendant’s conviction with the elements of the ‘generic’ crime—i.e., the offense as
commonly understood,” in order to determine whether that conviction qualifies as a “violent

(untimely). But see Groves v. United States, 755 F.3d 588, 593 (7th Cir. 2014) (affirming the
denial of an initial § 2255 petition and noting in passing that “the Supreme Court has not made
Descamps retroactive on collateral review”).
6

In Royal, “the Fourth Circuit applied Descamps to Maryland’s second-degree assault
statute . . . and concluded it was not a ‘violent felony’ under the ACCA because the statute
defined assault more broadly than the generic crime.” Hill v. Masters, 836 F.3d 591, 595 (6th
Cir. 2016).
10

felony.” Descamps, 133 S. Ct. at 2281. The Sixth Circuit has explained the discussion in
Descamps thus:
“[W]hen a prior conviction is for violating a so-called ‘divisible statute,’ ” which
“sets out one or more elements of the offense in the alternative,” we may resort to
a variant of the categorical approach “labeled (not very inventively) the ‘modified
categorical approach.’ ” Descamps, 133 S.Ct. at 2281. The modified categorical
approach is a “tool” used in a “narrow range of cases” to identify which element
formed the basis of a defendant’s conviction when a statute bears multiple
alternative elements. Id. at 2287. A court is therefore permitted to “go beyond the
mere fact of conviction[,]” Taylor, 495 U.S. at 602, 110 S.Ct. 2143, and may
“consult a limited class of documents” to determine which alternative in a
divisible statute gave rise to a conviction, and to compare that conviction to the
offense under the ACCA. Descamps, 133 S.Ct. at 2281.
Mitchell, 743 F.3d at 1063. The specific holding in Descamps was “that sentencing courts may
not apply the modified categorical approach when the crime of which the defendant was
convicted has a single, indivisible set of elements” and also “criminalizes a broader swath of
conduct than the relevant generic offense.” 133 S. Ct. at 2281. In the context of the ACCA, this
occurs where “an individual can violate the statute [of conviction] in a way that constitutes a
violent felony and in a way that does not.” United States v. Johnson, 707 F.3d 655, 659 (6th Cir.
2013).
The Sixth Circuit has previously considered Tennessee’s robbery statutes, under which
Ballew was convicted, and rejected a petitioner’s argument that they run afoul of Descamps “as
indivisible and overbroad.” Mitchell, 743 F.3d at 1066. The court explained that Tennessee’s
robbery statutes are divisible, as they “criminalize the intentional taking of property from the
person of another ‘by violence or putting the person in fear.’” Id. at 1065. More importantly,
“neither alternative element departs from the definitions provided in the ‘use of physical force’
clause. . . .” Id. at 1066. Therefore, the modified categorical approach is unnecessary. See id. at

11

1065 (“[I]f a statute is divisible . . . at least one, but not all of those alternative elements must
depart from . . . the definitions provided in . . . the ‘use of physical force’ clause”).
It does not matter which particular alternative presented in Tennessee’s robbery statute
served as the basis for each of Ballew’s robbery convictions, as the statute as a whole does not
“criminalize[] a broader swath of conduct than the relevant generic offense.” Descamps, 133 S.
Ct. at 2281. Because this necessary condition has not been satisfied, Ballew may find no relief
from Descamps and his claim on this ground is DENIED on the merits.
3.

Other ACCA-related claim

Petitioner also argues that his juvenile convictions do not qualify as ACCA predicates
and cites United States v. Laferriere, 399 F. App’x 65 (6th Cir. 2010). He raised the exact same
argument on direct appeal and it was rejected by the Sixth Circuit. United States v. Ballew, 491
F. App’x 589 (6th Cir. 2012). “A § 2255 motion may not be used to relitigate an issue that was
raised on appeal absent highly exceptional circumstances.” United States v. Brown, 62 F.3d
1418, 1995 WL 465802, at *1 (6th Cir. Aug. 4, 1995) (Table). None exist here, and this claim is
DENIED.
B.

Ineffective Assistance of Counsel

A claim that ineffective assistance of counsel has deprived a defendant of his Sixth
Amendment right to counsel is controlled by the standards set forth in Strickland v. Washington,
466 U.S. 668 (1984). Strickland requires that a petitioner establish both deficient performance
and actual prejudice.7 Id. at 687. Deficient performance occurs where “counsel’s representation
fell below an objective standard of reasonableness.” Id. at 688. This is a high standard.

7

“[A] court need not determine whether counsel’s performance was deficient before
examining the prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it
12

A court considering a claim of ineffective assistance must apply a “strong
presumption” that counsel’s representation was within the “wide range” of
reasonable professional assistance. [Strickland, 466 U.S.] at 689. The
challenger’s burden is to show “that counsel made errors so serious that counsel
was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” Id., at 687.
Harrington v. Richter, 131 S. Ct. 770, 787 (2011) (parallel citations omitted).
To demonstrate prejudice, a prisoner must establish “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. “It is not enough ‘to show that the errors had some conceivable
effect on the outcome of the proceeding.’ [Strickland, 466 U.S.] at 693. Counsel’s errors must
be ‘so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.’ Id., at
687.” Richter, 131 S. Ct. at 787–88 (parallel citations omitted); see also id. at 791–92 (“In
assessing prejudice under Strickland, the question is not whether a court can be certain counsel’s
performance had no effect on the outcome or whether it is possible a reasonable doubt might
have been established if counsel acted differently. . . . The likelihood of a different result must be
substantial, not just conceivable.” (citations omitted)); Wong v. Belmontes, 558 U.S. 15, 27
(2009) (per curiam) (“Strickland does not require the State to ‘rule out’ [a more favorable
outcome] to prevail. Rather, Strickland places the burden on the defendant, not the State, to
show a ‘reasonable probability’ that the result would have been different.” (citing Strickland,
466 U.S. at 694)).
“Surmounting Strickland’s high bar is never an easy task.” Padilla v. Kentucky, 559 U.S.
356, 371 (2010).

is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . .
that course should be followed.” Strickland, 466 U.S. at 697.
13

[T]he Strickland standard must be applied with scrupulous care, lest “intrusive
post-trial inquiry” threaten the integrity of the very adversary process the right to
counsel is meant to serve. Strickland, 466 U.S., at 689–690, 104 S. Ct. 2052.
Even under de novo review, the standard for judging counsel’s representation is a
most deferential one. Unlike a later reviewing court, the attorney observed the
relevant proceedings, knew of materials outside the record, and interacted with
the client, with opposing counsel, and with the judge. It is “all too tempting” to
“second-guess counsel’s assistance after conviction or adverse sentence.” Id., at
689, 104 S. Ct. 2052; see also Bell v. Cone, 535 U.S. 685, 702, 122 S. Ct. 1843
(2002); Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S. Ct. 838 (1993). The
question is whether an attorney’s representation amounted to incompetence under
“prevailing professional norms,” not whether it deviated from best practices or
most common custom. Strickland, 466 U.S., at 690, 104 S. Ct. 2052.
Richter, 131 S. Ct. at 788.
1.

Plea negotiations

Attorney A. Russell Larson represented Ballew at all relevant stages before and during
his trial. Petitioner advances multiple claims of ineffective assistance of counsel as to attorney
Larson’s representation at various stages. First, Petitioner complains that his attorney “failed to
fully investigate all facts, all available options, and law relevant to his decision as to whether to
enter into plea negotiations with the government, or proceed to trial.” (ECF No. 9 at 3.) Ballew
claims that because he “proceeded to trial due to Mr. Larson’s deficient advisement, [he] thus
was subjected to a far more severe sentence . . . .” (ECF No. 21 at 10.) The problem with this
argument is that Petitioner cannot demonstrate that he suffered prejudice. Had Ballew pleaded
guilty and received a favorable plea agreement with the government, including a reduction in his
offense level for acceptance of responsibility, he would not have received a shorter sentence.
The Court sentenced Ballew to the mandatory minimum 180 month sentence required by
the ACCA, followed by a mandatory minimum, consecutive sentence of 60 months established
by 18 USC § 924(c). The government correctly points out that “Ballew received the absolute
least sentence possible, with or without plea negotiations, and whether or not he had pled guilty

14

or was found guilty at trial.”8 (ECF No. 18 at 12.) This Court is “without the discretion to
depart from a mandatory sentence imposed by Congress.” United States v. Thomson, 268 F.
App’x 430, 437 (6th Cir. 2008) (regarding an ACCA-mandated fifteen year minimum sentence).
This includes the consecutive sentence of 60 months, as “[§] 924(c)(1)(D)(ii) expressly prohibits
any term of imprisonment imposed pursuant to § 924(c) from running concurrently with another
term of imprisonment.” United States v. Farrell, 233 F. App’x 514, 517 (6th Cir. 2007).
Petitioner therefore cannot satisfy the second prong of Strickland and his claim of ineffective
assistance of counsel on this ground is DENIED.
2.

Suppression hearing

Ballew also asserts that his counsel’s representation during the suppression hearing
constituted deficient performance. (ECF No. 9 at 3.) Larson filed a motion to suppress on behalf
of Petitioner on March 25, 2010. (Cr. ECF No. 57.) The suppression hearing took place roughly
three weeks later, Cr. ECF No. 65, and the Court denied the motion at the conclusion of the
proof, Cr. ECF No. 66. Ballew claims that he instructed Larson not to move forward with the
motion and hearing, but the attorney disregarded these instructions and instead acted in
furtherance of “his own interest which conflicted with those of the Movant.”9 (ECF No. 2 at 15.)
As unlikely as this contention may sound, the Court need not evaluate its truth because Petitioner
cannot prove prejudice. On the merits of the motion itself, Ballew argues that Larson “was
unprepared and was not knowledgable [sic] of the specific laws that supported his arguments
regarding the suppression hearing.” (ECF No. 9 at 3.) This is irrelevant because the inmate

8

Likewise, the period of supervised release following Petitioner’s incarceration and the
$300 special assessment imposed at sentencing would not have changed either.
9

Petitioner does not identify what interest Larson purportedly had that conflicted with his
own and motivated counsel to disobey his instructions.
15

claims that he instructed Larson not to make or argue the motion. The motion being denied put
Petitioner in the exact same position he would have found himself in had the motion never been
filed and argued; the evidence at issue remained admissible as far as the Fourth Amendment is
concerned.
Ballew also appears to argue that Larson’s alleged decision to move forward with the
suppression hearing prejudiced him with regards to negotiating a plea agreement with the
government. (ECF No. 2 at 24.) As explained above, however, Petitioner received the minimum
sentence possible regardless of whether he had gone to trial or pleaded guilty. He therefore
cannot prove prejudice on this ground and this claim is DENIED.
3.

Failure to locate a potential witness

Moving on to the trial itself, Ballew’s contention that attorney Larson provided
ineffective assistance of counsel at this stage focuses on his failure to successfully locate and
subpoena a potential witness and his subsequent failure to exclude hearsay statements made by
this individual and elicited from other sources.10 (ECF No. 2 at 18.) Ballew claims that attorney
Larson “rendered ineffective assistance of counsel when he failed to secure the witness . . . by
compulsory process.” (ECF No. 2 at 16.) Petitioner’s primary issue appears to be that the
witness’s unavailability at trial made it impossible to cross-examine her, a valid concern for a
criminal defendant. (See Id. at 18.) But Larson’s decision not to call or locate this witness does
not constitute deficient performance under Strickland. This individual was an eyewitness who
provided information to the police by calling 911 and speaking with officers at the scene.

10

Petitioner refers to this person throughout his filings as the government’s “key
witness.” (ECF No. 9 at 5.) In the trial transcript, Larson identifies her as “Tosha Henke.” (Cr.
ECF No. 162 at 22:1.)
16

Larson’s decision not to call this person to the stand, which would have allowed the government
to elicit more incriminating testimony, is a reasonable one.
“Even if in retrospect the [defense attorney’s] strategy appears to have been wrong, the
decision will be held ineffective only if it was so patently unreasonable that no competent
attorney would have chosen it.” Adams v. Wainwright, 709 F.2d 1443, 1445 (11th Cir. 1983).
Larson’s decision was not so unreasonable; it “falls within the wide range of reasonable
professional assistance.” Strickland, 466 U.S. at 689. Petitioner also has not proved prejudice as
to this issue. It appears highly unlikely that the result of the trial would have been different had
this witness testified at trial, especially “in light of the overwhelming evidence of Ballew’s guilt,
including two confessions that the backpack and its contents [including the firearm, marijuana,
and Ballew’s driver’s license] were his.” Ballew, 491 F. App’x at 591.
4.

The 911 call

Petitioner argues several times that the recording of a 911 call admitted at trial should
have been excluded pursuant to Crawford v. Washington, 541 U.S. 36 (2004), and that his
counsel should have objected on those grounds. (ECF No. 2 at 16–19.) “In the 911 call, a
woman yelled in an agitated manner about someone putting a gun in her face.” Ballew, 491 F.
App’x at 591. In Crawford, the Supreme Court held that the Confrontation Clause of the Sixth
Amendment bars “admission of testimonial statements of a witness who did not appear at trial
unless he was unavailable to testify, and the defendant had had a prior opportunity for crossexamination.” 541 U.S. at 53–54. While the Court did not provide an overarching definition of
“testimonial,” it later offered the following clarification:
Statements are nontestimonial when made in the course of police interrogation
under circumstances objectively indicating that the primary purpose of the
interrogation is to enable police assistance to meet an ongoing emergency. They
are testimonial when the circumstances objectively indicate that there is no such
17

ongoing emergency, and that the primary purpose of the interrogation is to
establish or prove past events potentially relevant to later criminal prosecution.
Davis v. Washington, 547 U.S. 813, 822 (2006). In Davis, the Court observed that “[a] 911 call
. . . and at least the initial interrogation conducted in connection with a 911 call, is ordinarily not
designed primarily to establish or prove some past fact, but to describe current circumstances
requiring police assistance.” Id. at 827. Accordingly, it held that a 911 call in which the caller
was informally and frantically narrating present events, “call[ing] for help against a bona fide
physical threat,” and providing information relevant “to resolve the present emergency” was
nontestimonial under Crawford. Id.
The statement at issue in this case is also nontestimonial and bears many similarities to
the 911 call in Davis. It was provided in the present tense, in a frightened manner, seeking help
from the police in an emergency, not providing them with information to strengthen a later
prosecution. For this reason, Ballew cannot prove that he suffered prejudice when attorney
Larson failed to object to the 911 call. The evidence would have been admitted over an
objection because it presents no problems under the Confrontation Clause.11 This claim is
DENIED.
5.

Officer Weems’ testimony

Petitioner takes issue with his attorney’s failure to request a curative instruction after his
objection to a portion of Officer Weems’ testimony was overruled by the Court.12 (ECF No. 2 at

11

On direct appeal, the Sixth Circuit noted in passing that “there is considerable reason to
doubt that the woman’s statement was testimonial.” Ballew, 491 F. App’x at 591.
12

Ballew further argues that Larson did not argue the objection correctly. (ECF No. 2 at
19.) Petitioner cannot prove prejudice here because the objection would have been overruled
regardless, and the Sixth Circuit affirmed the ruling on this particular objection on direct appeal.
Ballew, 491 F. App’x at 591 (reviewing it for plain error).
18

19.) Larson objected to hearsay when the officer testified that an eyewitness at the scene yelled
“he’s got a gun.” (Cr. ECF No. 161 at 31:21–22.) The Court overruled his objection as the
statement qualified as an excited utterance. (Id. at 32:4–5; see Fed. R. Evid. 803(2).) “To
prevail on a claim of ineffective assistance for counsel’s failure to request a curative instruction,
a petitioner would need to show prejudice by demonstrating a reasonable probability that the
omission of such instruction affected the outcome of the trial.” Gann v. Lester, No. 4:13-CV-71HSM-CHS, 2016 WL 4690399, at *10 (E.D. Tenn. Sept. 7, 2016). Petitioner asserts that he
suffered prejudice due to this failure, but does not explain how. Given the difficulty of proving
prejudice in this situation, Ballew’s lack of specificity stifles his claim here. 13 See Shafer v.
Wilson, 364 F. App’x. 940, 951 (6th Cir. 2010) (finding no prejudice “given the unlikelihood that
the omission of such instruction affected the outcome of the trial”).
6.

Petitioner’s clothing

Ballew “contends that counsel rendered ineffective assistance of counsel when he failed
to obtain civilian clothing for Movant.” (ECF No. 2 at 18.) The Supreme Court has held that
“the State cannot, consistently with the Fourteenth Amendment, compel an accused to stand trial
before a jury while dressed in identifiable prison clothes.” Estelle v. Williams, 425 U.S. 501, 512
(1976). Petitioner admits that this was not the case at his trial. Rather, on “the first day of trial
he was forced to wear the wrinkled, haggered [sic] clothing from the day he was subsequently
arrested.” (ECF No. 2 at 18.) That petitioner wore less than ideal civilian clothing for part of his
trial does not run afoul of the Constitution on these grounds, nor does it satisfy Strickland’s high
bar. See Jones v. United States, No. 1:05-CR-69, 2011 WL 1557928, at *5 (E.D. Tenn. Apr. 25,
13

Similarly, Ballew briefly argues that “Mr. Larson should have moved for a mistrial on
several instances, but did not, thus causing a violation of Mr. Ballew’s due process rights.” (ECF
No. 2 at 19.) Again, Petitioner does not provide any more detail and fails to meet his burden
under Strickland.
19

2011) (denying a petitioner’s ineffective assistance of counsel claim where “his trial counsel
failed to object to him having to stand trial in prison clothing,” but he failed to prove prejudice).
Accordingly, this claim is DENIED.
“A claim of ineffective assistance cannot be carved up into little segments. Isolated
shortcomings do not make a lawyer ineffective; it is the entire course of the representation that
matters.” Duarte v. United States, 81 F.3d 75, 77 (7th Cir. 1996). While attorney Larson’s
representation may not have been perfect, “the goal is not to ensure that a criminal defendant be
afforded perfect counsel, but rather ‘to ensure that the adversarial testing process works to
produce a just result under the standards governing decision.’” Kelly v. Lazaroff, 846 F.3d 819,
830 (6th Cir. 2017) (quoting Strickland, 466 U.S. at 687). Larson’s representation certainly fell
within these wide parameters despite Petitioner’s many claims to the contrary.
7.

Sentencing counsel

Ballew also insists that he received ineffective assistance of counsel at the sentencing
phase. (ECF No. 21 at 2–7.) Generally, challenges to sentencing cannot be made for the first
time in a § 2255 motion. Weinberger v. United States, 268 F.3d 346, 351 (6th Cir. 2001) (citing
Grant v. United States, 72 F.3d 503, 505–06 (6th Cir. 1996)). They are waived unless made on
direct appeal. Id. However, “challenges that cannot otherwise be reviewed for the first time on a
§ 2255 motion can be reviewed as part of a successful claim that counsel provided ineffective
assistance.” Id. “A defendant facing the possibility of incarceration has a Sixth Amendment
right to counsel at all ‘critical stages’ of the criminal process, and a sentencing hearing is one
type of ‘critical stage’ at which the right to counsel attaches.” McPhearson v. United States, 675
F.3d 553, 559 (6th Cir. 2012) (quoting Benitez v. United States, 521 F.3d 625, 630 (6th Cir.
2008)). An attorney’s “failure to object to an error at sentencing or failure to raise a viable

20

argument that would reduce [the] client’s sentence may constitute deficient performance.”
McPhearson, 675 F.3d at 559. However, the “‘strong presumption’ that an attorney ‘render[s]
adequate assistance and [makes] all significant decisions in the exercise of reasonable
professional judgment,’” remains at the sentencing phase. Maiyo v. United States, 576 F. App’x
567, 570 (6th Cir. 2014) (quoting Strickland, 466 U.S. at 689–90).
Petitioner avers that his sentencing counsel, attorney Jon York, did not present
appropriate and compelling case law to the Court regarding the issue of his juvenile offenses
being used as predicate offenses for the ACCA. (ECF No. 9 at 9.) Again, Petitioner’s argument
fails because he cannot demonstrate prejudice. On direct appeal, the Sixth Circuit affirmed the
application of the ACCA in Ballew’s case. Ballew, 491 F. App’x at 592. Therefore, even if
York’s representation did constitute deficient performance, Ballew did not receive a longer or
harsher sentence as a result. More broadly, he suffered no prejudice at the sentencing phase
whatsoever, as he received the shortest sentence allowed by applicable law. Accordingly, his
claim of ineffective assistance on this ground is DENIED.
Petitioner complains that attorney York “conceded before the sentencing court Movant’s
adult attempted aggravated robbery was properly constituted as a predicate violent felony under
the Armed Career Criminal Act enhancement.” (ECF No. 2 at 27.) He further takes issue with
his attorney’s argument at the sentencing hearing based on United States v. Laferriere, 399 F.
App’x 65 (6th Cir. 2010).14 (Id. at 28.) These grounds are insufficient to satisfy Strickland’s
high standard. “[A] defendant claiming ineffective counsel must show that counsel’s actions
were not supported by a reasonable strategy and that the error was prejudicial.” Massaro v.

14

Petitioner’s exact argument is not clear here, but it appears that he disapproves of the
way counsel discussed the case, rather than the mere fact that counsel cited it, as he relies on
Laferriere himself in one of his arguments in the instant petition.
21

United States, 538 U.S. 500, 505 (2003). “[S]trategic choices made after thorough investigation
of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices
made after less than complete investigation are reasonable precisely to the extent that reasonable
professional judgments support the limitations on investigation.” Strickland, 466 U.S. at 690–
91. Without delving too far into the extent of York’s investigation of the law and facts in this
case, the Court concludes that both of the decisions complained of above were reasonable
strategic choices under the circumstances. See Lott v. Trammell, 705 F.3d 1167, 1187 (10th Cir.
2013) (stating that counsel’s concessions did not reflect deficient legal representation because the
concessions boosted counsel’s credibility). Accordingly, these claims are DENIED.
8.

Appellate counsel

Attorney York also represented Petitioner on direct appeal.

Ballew “contends that

counsel denied him of his full direct appeal process by failing to file an en banc petition, and
then not proceeding on a writ of certiorari on behalf of Mr. Ballew.” (ECF No. 2 at 29.) “A
defendant is entitled to effective assistance of counsel on the first appeal of his conviction where
such an appeal is a matter of right.” McNeal v. United States, 54 F.3d 776, 1995 WL 290233, at
*2 (6th Cir. May 11, 1995) (Table). The Sixth Circuit has held that “there is no constitutional
right to counsel in seeking rehearing en banc.” McNeal, 1995 WL 290233, at *2. Similarly,
there is no “constitutional right to counsel in pursuing an application for discretionary review
(certiorari) in the Supreme Court of the United States.” Id. at *1 (citing Ross v. Moffitt, 417 U.S.
600 (1974)). Where a defendant “had no constitutional right to counsel, he could not be deprived
of the effective assistance of counsel . . . .” Wainwright v. Torna, 455 U.S. 586, 587–88 (1982).
Therefore, Ballew’s claims under Strickland based on York’s failure to pursue these
discretionary appeals must fail and are hereby DENIED.

22

IV.

CONCLUSION
Because Ballew’s claims are without merit, the Petition is hereby DISMISSED and his

request for an evidentiary hearing is DENIED.
V.

APPEAL ISSUES
Twenty-eight U.S.C. § 2253 requires the district court to evaluate the appealability of its

decision denying a § 2255 motion and to issue a certificate of appealability (“COA”) “only if the
applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2); see also Fed. R. App. P. 22(b). No § 2255 movant may appeal without this
certificate. The COA must also indicate “which specific issue or issues satisfy” the required
showing.

28 U.S.C. § 2253(c)(3).

A “substantial showing” is made when the movant

demonstrates that “reasonable jurists could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different manner or that the issues presented were
adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 336
(2003) (internal quotation marks omitted). A COA does not require a showing that the appeal
will be successful. Id. at 337. Courts should not, however, issue a COA as a matter of course.
Bradley v. Birkett, 156 F. App’x 771, 773 (6th Cir. 2005) (per curiam).
In this case, for the reasons previously stated, the issues raised by Petitioner lack
substantive merit and, therefore, he cannot present a question of some substance about which
reasonable jurists could differ. The Court therefore DENIES a certificate of appealability.
The Sixth Circuit has held that the Prison Litigation Reform Act of 1995, 28 U.S.C.
§ 1915(a)–(b), does not apply to appeals of orders denying § 2255 motions.

Kincade v.

Sparkman, 117 F.3d 949, 951 (6th Cir. 1997). Rather, to appeal in forma pauperis in a § 2255
case and thereby avoid the appellate filing fee required by 28 U.S.C. §§ 1913 and 1917, the

23

prisoner must obtain pauper status pursuant to Federal Rule of Appellate Procedure 24(a).
Kincade, 117 F.3d at 952. The Rule requires a party seeking pauper status on appeal to first file
a motion in the district court, along with a supporting affidavit. Fed. R. App. P. 24(a)(1). The
Rule also provides, however, that if the district court certifies that an appeal would not be taken
in good faith, or otherwise denies leave to appeal in forma pauperis, the prisoner must file his
motion to proceed in forma pauperis in the appellate court. See Fed. R. App. P. 24(a)(4)–(5).
In this case, for the same reasons it denies a COA, the Court determines that any appeal
would not be taken in good faith. It is therefore CERTIFIED, pursuant to Rule 24(a), that any
appeal in this matter would not be taken in good faith. Leave to appeal in forma pauperis is
DENIED.15

IT IS SO ORDERED this 6th day of March, 2017.

s/ J. DANIEL BREEN
CHIEF UNITED STATES DISTRICT JUDGE

15

If Petitioner files a notice of appeal, he must also pay the full $505 appellate filing fee
or file a motion to proceed in forma pauperis and supporting affidavit in the Sixth Circuit Court
of Appeals within thirty days.
24