Dubose v. United States of America

Filing 16

ORDER DENYING PETITIONER'S MOTIONS, DENYING § 2255 PETITION, DENYING CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS. Signed by Judge J. Daniel Breen on 1/3/20. (mbm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
DERRICK DUBOSE,
Petitioner,
v.

No. 1:16-cv-01250-JDB-jay

UNITED STATES OF AMERICA,
Respondent.
ORDER DENYING PETITIONER’S MOTIONS,
DENYING § 2255 PETITION,
DENYING CERTIFICATE OF APPEALABILITY,
AND
DENYING LEAVE TO APPEAL IN FORMA PAUPERIS
In September 2016, the Petitioner, Derrick Dubose,1 filed a pro se motion to vacate, set
aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (the “Petition”). (Docket Entry (“D.E.”)
1.)2 The inmate asserted three claims, one of which was premised on the United States Supreme
Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015). On August 20, 2018, the
Court denied the Johnson claim. (D.E. 7.) For the following reasons, the remaining claims are
also DENIED.3

1

In its discussion of the underlying criminal matter, the Court will refer to Dubose as the
“Defendant.”
2

Unless otherwise noted, record citations in this order are to the instant case.

3

The Petitioner’s motion for a status update (D.E. 5) and his “Motion of Default,” in which
he seeks a ruling on the Petition (D.E. 14), are DENIED as moot. His “Motion Pursuant to the
Federal Rules of Criminal Procedure Rule 36,” alleging a purported “clerical error” that he believes
entitles him to a correction of his sentence (D.E. 6 at PageID 22), is DENIED as improperly
brought in this § 2255 case. Should he wish to pursue relief under Rule 36, he must file a motion
in his criminal case, United States v. Dubose, No. 1:14-cr-10036-JDB-1 (W.D. Tenn.).

1

BACKGROUND
In April 2014, a federal grand jury returned a five-count indictment charging Dubose with
marijuana trafficking (Counts 1 and 5), cocaine base trafficking (Counts 2 and 3), and MDMA4
trafficking (Count 4). (No. 1:14-cr-10036-JDB-1, D.E. 2.) In March 2015, the Defendant pleaded
guilty to Count 2 pursuant to an agreement with the Government. (Id., D.E. 37-39.) At sentencing,
Dubose was determined to be a career offender under § 4B1.1 of the United States Sentencing
Commission Guidelines Manual (“U.S.S.G.” or “Guidelines”) based on a Tennessee conviction
for delivery of a controlled substance and a Tennessee conviction for the sale of a controlled
substance. (Id., D.E. 49; Presentence Report ¶¶ 24, 38, 40.) His advisory Guidelines range was
determined to be 151 to 188 months’ incarceration. (No. 1:14-cr-10036-JDB-1, D.E. 49.) The
Court imposed a below-Guidelines sentence of 120 months’ imprisonment and three years of
supervised release, with the sentence to run concurrently with four unexpired state sentences. (Id.,
D.E. 42.) Defendant took an unsuccessful direct appeal. (Id., D.E. 57.)
DISCUSSION
Petitioner asserts that the Court erred in applying the career offender enhancement at
sentencing because the predicate state convictions are not controlled substance offenses (Claim 1).
He also insists that counsel was ineffective in failing to make that argument (Claim 2).5
Respondent, the United States of America, filed an answer to the Petition on August 29, 2018,

4

See www.drugabuse.gov/publications/drugfacts/mdma-ecstasymolly (last accessed
December 18, 2019) (MDMA is 3,4 methylenedioxy-methamphetamine).
5

The Court has renumbered the claims because there is considerable repetition among the
four grounds presented in the Petition. The essential assertions are that Petitioner’s prior state drug
convictions are not controlled substance offenses for purposes of the career offender enhancement
and that counsel was ineffective in failing to make that argument.
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arguing that Claim 1 is not cognizable and Claim 2 is without merit. (D.E. 9.) Petitioner filed a
reply, in which he maintains that he is entitled to relief on both claims. (D.E. 12.)
A prisoner seeking to vacate his sentence under § 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) (internal quotation marks omitted). A § 2255 petitioner bears
the burden of establishing entitlement to relief. Pough v. United States, 442 F.3d 959, 964 (6th
Cir. 2006).
In Claim 1, Dubose avers that he no longer qualifies as a career offender because an offense
under the Tennessee drug statute, Tennessee Code Annotated § 39-17-417(a), is not categorically
a controlled substance offense pursuant to the framework set forth in Mathis v. United States, 136
S. Ct. 2243, 2249 (2016). Specifically, he maintains that “delivery” under the statute encompasses
conduct, namely “offering to sell,” that is broader than the Guidelines’ definition of a controlled
substance offense.6
The Tennessee statute under which Petitioner was twice convicted provides that “[i]t is an
offense for a defendant to knowingly . . . [m]anufacture a controlled substance[,] [d]eliver a
controlled substance[,] [s]ell a controlled substance[,] or . . . [p]ossess a controlled substance with
intent to manufacture, deliver or sell the controlled substance.” Tenn. Code Ann. § 39-17-417(a).

6

In his reply, Petitioner submits for the first time that “delivery” under the Tennessee statute
is broader than the Guidelines’ definition of a controlled substance offense because it includes
“administering” drugs. The panel in United States v. Havis, 907 F.3d 439 (6th Cir. 2018), opinion
vacated on other grounds, 927 F.3d 382 (en banc) (6th Cir.), reconsideration denied, 929 F.3d 317
(6th Cir. 2019), rejected the “administering” argument. See Havis, 907 F.3d at 446-47. That
portion of the panel decision was not disturbed at rehearing en banc. See Havis, 927 F.3d at 384
n.2.
3

Under U.S.S.G. § 4B1.1, a defendant is a career offender if, among other things, he “has at least
two prior felony convictions of either a crime of violence or a controlled substance offense.”
U.S.S.G. § 4B1.1(a). A “controlled substance offense” is defined as
an offense under federal or state law, punishable by imprisonment for a term
exceeding one year, that prohibits the manufacture, import, export, distribution, or
dispensing of a controlled substance (or a counterfeit substance) or the possession
of a controlled substance (or a counterfeit substance) with intent to manufacture,
import, export, distribute, or dispense.
U.S.S.G. § 4B1.2(b).
To determine if a conviction constitutes a controlled substance offense, a court must “apply
a ‘categorical’ approach,” which focuses on the statute under which the petitioner was convicted,
rather than the petitioner’s conduct. United States v. Gibbs, 626 F.3d 344, 352 (6th Cir. 2010)
(citing Taylor v. United States, 495 U.S. 575, 600 (1990)). If the statute is “divisible,” meaning it
describes multiple offenses, the court may “employ the ‘modified categorical approach.’” United
States v. House, 872 F.3d 748, 753 (6th Cir.) (quoting Descamps v. United States, 570 U.S. 254,
261-62 (2013)), cert. denied, 138 S. Ct. 367 (2017). That approach permits the examination of “a
limited class of documents” from the defendant’s prior criminal case in order “to determine which
alternative formed the basis of the defendant’s . . . conviction.” Id. (quoting Descamps, 570 U.S.
at 257). The Supreme Court in Mathis clarified that a statute is divisible if it lists alternative
elements, not alternative means of satisfying one or more elements. Mathis, 136 S. Ct. at 2249. If
the statute lists alternative means, then it is “indivisible,” and resort to the limited class of
documents is prohibited. Id. at 2248.
Under either approach, the “second step” in a court’s analysis is to “determine whether the
offense, as described either by the entirety of an indivisible statute or by the relevant alternative of
a divisible statute, matches § 4B1.2(b)’s definition of a ‘controlled substance offense.’” United

4

States v. Pittman, 736 F. App’x 551, 554 (6th Cir.), cert denied, 139 S. Ct. 608 (2018). If the
elements do not match, the prior conviction cannot be counted toward the defendant’s career
offender status. Mathis, 136 S. Ct. at 2247 (A “prior crime qualifies as a[] . . . predicate if, but
only if, its elements are the same as, or narrower than, those of the generic offense.”)
Dubose’s claim that his prior Tennessee drug convictions are not controlled substance
offenses under Mathis’s framework is not cognizable in this § 2255 proceeding. In the Sixth
Circuit’s recent decision in Bullard v. United States, 937 F.3d 654 (6th Cir. 2019), the § 2255
petitioner challenged the district court’s use of his “Arizona conviction for attempting to sell
cocaine” to qualify him as a career offender. Bullard, 937 F.3d at 657. In support, he invoked the
Sixth Circuit’s en banc decision in Havis. Id. at 656. In Havis, the court held that “delivery” of a
controlled substance under Tennessee Code Annotated § 39-17-417(a) is broader than the
Guidelines’ definition of a controlled substance offense because the state offense includes
attempted delivery. See Havis, 927 F.3d at 385-87. The Bullard court ruled that the petitioner
could not rely on Havis to seek resentencing under § 2255 because the claim was non-cognizable
in such a proceeding:
[We] repeat what we said in Snider [v. United States, 908 F.3d 183 (6th Cir. 2018), cert.
denied, 139 S. Ct. 1573 (2019)]: “[a] misapplication-of-an-advisory-guidelines-range
claim is . . . not cognizable under § 2255.” [Snider,] 908 F.3d at 191. Indeed, every circuit
to “look[] at the issue has agreed that a defendant cannot use a § 2255 motion to vindicate
non-constitutional challenges to advisory guideline calculations.” Id.; see also, e.g.,
[United States v.] Foote, 784 F.3d [931,] 932 [(4th Cir. 2015)] (same); Spencer [v. United
States], 773 F.3d [1132,] 1135 [(11th Cir. 2014)] (same); Hawkins v. United States, 706
F.3d 820, 824-25 (7th Cir. 2013) (same); Sun Bear v. United States, 644 F.3d 700, 704-06
(8th Cir. 2011) (en banc) (same); United States v. Williamson, 183 F.3d 458, 461-62 (5th
Cir. 1999) (same). As a result, Bullard cannot use § 2255—or our decision in Havis—to
attack collaterally his designation as [a] career offender under the Sentencing Guidelines.
Both are best left for direct review.
Bullard, 937 F.3d at 660-61.

5

Because the claim here, as in Bullard, challenges the Court’s application of the advisory
Guidelines, it is non-cognizable. Claim 1 is therefore DISMISSED.
Claim 2, which asserts that counsel provided ineffective assistance by failing to argue
against application of the career offender enhancement, is a claim of constitutional magnitude and
is, thus, properly before the Court. See Snider, 908 F.3d at 192 (“[A] free-standing ineffective
assistance of counsel claim . . . is cognizable under § 2255.”) (citing Massaro v. United States,
538 U.S. 500, 508-09 (2003)). Nevertheless, the claim is without merit.
A determination of whether an attorney’s ineffective assistance has deprived a criminal
defendant of his Sixth Amendment right to counsel is controlled by the standards articulated in
Strickland v. Washington, 466 U.S. 668 (1984). See Robins v. Fortner, 698 F.3d 317, 329 (6th
Cir. 2012). To succeed on such a claim, a petitioner must demonstrate two elements: (1) “that
counsel’s performance was deficient” and (2) “that the deficient performance prejudiced the
defense.” Strickland, 466 U.S. at 687. “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 on as having produced a just result.” Id. at 686.
To establish deficient performance, a petitioner “must show that counsel’s representation
fell below an objective standard of reasonableness.” Id. at 687-88. A court considering a claim of
ineffective assistance must apply “a strong presumption” that the attorney’s representation was
“within the wide range of reasonable professional assistance; that is, the defendant must overcome
the presumption that, under the circumstances, the challenged action might be considered sound
trial strategy.” Id. at 689 (internal quotation marks omitted). An attorney’s “strategic choices” are
“virtually unchallengeable” if based on a “thorough investigation of law and facts relevant to
plausible options[.]”

Id. at 690-91.

“[S]trategic choices made after less than complete

6

investigation are reasonable precisely to the extent that reasonable professional judgments support
the limitations on investigation.” Id.
To show prejudice, a petitioner must establish “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. 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.’” Harrington v. Richter, 562 U.S. 86, 104 (2011) (quoting Strickland,
466 U.S. at 693). Instead, “[c]ounsel’s errors must be ‘so serious as to deprive the defendant of a
fair trial, a trial whose result is reliable.’” Id. (quoting Strickland, 466 U.S. at 687).
Dubose cannot establish that his attorney was ineffective by failing to argue that the
Tennessee convictions are not controlled substance offenses under the Guidelines. At the time of
Petitioner’s sentencing in June 2015, it was the law in this Circuit that crimes under the Tennessee
drug statute were categorically controlled substance offenses. See United States v. Douglas, 563
F. App’x. 371, 378 (6th Cir. 2014) (“Section 39-17-417 is a categorical controlled substance
offense.”) And even if the Tennessee statute could be said to encompass “offering to sell,” it was
also Sixth Circuit precedent at the time that “an offer to sell is properly considered an attempt to
transfer a controlled substance, which is a ‘controlled substance offense’ under the Guidelines.”
United States v. Evans, 699 F.3d 858, 867 (6th Cir. 2012) (citing U.S.S.G. § 4B1.2), abrogated by
Havis, 927 F.3d 382. Under these circumstances, counsel’s failure to argue that the convictions
did not qualify as career offender predicates was not deficient performance and did not prejudice
Petitioner. See Bullard, 937 F.3d at 661 (where Sixth Circuit caselaw “held the opposite” of the
ruling in Havis “at th[e] time” of petitioner’s sentencing, counsel did not perform deficiently by

7

failing to argue that his state drug conviction was not a controlled substance offense under the
Guidelines). Claim 2 is without merit and is DENIED.
APPEAL ISSUES
A § 2255 petitioner may not proceed on appeal unless a district or circuit judge issues a
certificate of appealability (“COA”). 28 U.S.C. § 2253(c)(1); Fed. R. App. P. 22(b)(1). A COA
may issue only if the petitioner has made a substantial showing of the denial of a constitutional
right. 28 U.S.C. § 2253(c)(2)-(3). A substantial showing is made when the petitioner 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) (quoting
Slack v. McDaniel, 529 U.S. 473, 484 (2000)). “If the petition was denied on procedural grounds,
the petitioner must show, ‘at least, that jurists of reason would find it debatable whether the petition
states a valid claim of the denial of a constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its procedural ruling.’” Dufresne v. Palmer,
876 F.3d 248, 252-53 (6th Cir. 2017) (per curiam) (quoting Slack, 529 U.S. at 484).
In this case, reasonable jurists would not debate the correctness of the Court’s decision to
deny the Petition. Because any appeal by Petitioner does not deserve attention, the Court DENIES
a COA.
Pursuant to Federal Rule of Appellate Procedure 24(a), a party seeking pauper status on
appeal must first file a motion in the district court, along with a supporting affidavit. Fed. R. App.
P. 24(a). However, Rule 24(a) also provides that, if the district court certifies that an appeal would
not be taken in good faith, the prisoner must file his motion to proceed in forma pauperis in the
appellate court. Id.

8

In this case, for the same reason it denies a COA, the Court CERTIFIES, 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 therefore DENIED.7
IT IS SO ORDERED this 3rd day of January 2020.
s/ J. DANIEL BREEN
UNITED STATES DISTRICT JUDGE

7

If Petitioner files a notice of appeal, he must also pay the full $505.00 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.
9