Porter v. United States of America

Filing 15

ORDER 1 Pro Se Complaint filed by Vincent Porter. Signed by Chief Judge Jon Phipps McCalla on 07/10/2013. (McCalla, Jon)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

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VINCENT PORTER,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

Cv. No. 10-2477-JPM-dkv
Cr. No. 08-20111-JPM

ORDER DENYING MOTION PURSUANT TO 28 U.S.C. § 2255
ORDER DENYING CERTIFICATE OF APPEALABILITY
ORDER CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH
AND
ORDER DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

On June 23, 2010, Petitioner Vincent Porter (“Petitioner” or
“Porter”), Bureau of Prisons registration number 22327-076, an
inmate

at

the

Federal

Correctional

Institution

in

Memphis,

Tennessee, filed a pro se Motion to vacate, set aside, or correct
his sentence pursuant to 28 U.S.C. § 2255 (the “§ 2255 Motion”).
(ECF

No.

1.)

On

September

13,

2010,

the

United

States

(the

“Government”) filed a Response to Petitioner’s § 2255 Motion. (ECF
No. 9.) On February 11, 2011, Petitioner filed a Declaration in
opposition to the Government’s Response. (ECF No. 12-1.)
For the following reasons, Petitioner’s § 2255 Motion is
DENIED.

I.

BACKGROUND
A.

Criminal Case Number 08-20111

On March 18, 2008, a federal grand jury returned a one-count
Indictment charging Porter with possession of a firearm after the
conviction of a felony, in violation of 18 U.S.C. § 922(g). See
Indictment at 1, United States v. Porter, No. 08-20111 (W.D. Tenn.),
ECF No. 1. On January 7, 2009, Defendant pled guilty pursuant to a
written plea agreement. See Minute Entry, Porter, No. 08-20111 (W.D.
Tenn.), ECF No. 25.
The plea agreement provided as follows:
Pursuant to Rule 11 of the Federal Rules of Criminal
Procedure, the attorney for the United States, the
defendant VINCENT PORTER, and the attorney for the
defendant have reached an agreement that contemplates the
entry of a plea of guilty by the defendant in this case.
The full and complete agreement is as follows:
1.

VINCENT PORTER agrees that he will enter a voluntary
plea of guilty to the indictment charging a violation
of Title 18, United States Code, Section 922(g).

2.

VINCENT PORTER agrees that he is pleading guilty
because he is in fact guilty of the offense charged
in the indictment.

3.

VINCENT PORTER acknowledges that he has been advised
of and does fully understand the following:
a.

The nature of the charge to which the plea is
offered and the maximum possible penalty
provided by law;

b.

That he has the right to be tried by a jury, and
at that trial he has the right to the assistance
of counsel, the right to confront and crossexamine witnesses against him, and the right not
to be compelled to incriminate himself; and,

c.

That if he pleads guilty, there will not be a
trial of any kind, so that by pleading guilty,
he waives the right to a trial.
2

4.

The United States agrees to recommend a three-level
reduction for acceptance of responsibility provided
that the Defendant’s conduct, up to and including the
day of sentencing, continues to be consistent with
acceptance of responsibility and he receives no
enhancement for obstruction of justice.

5.

The United States agrees to recommend that VINCENT
PORTER be sentenced at the low-end of the applicable
guideline range as determined by the Court.

6.

The parties agree that a four (4) level enhancement
under U.S.S.G. § 2K2.1(b)(5) is applicable in this
case.

7.

VINCENT PORTER agrees that a guideline range sentence
is a reasonable sentence in light of the facts of the
case and the concessions made by the United States in
this plea agreement. In addition, VINCENT PORTER
agrees to be sentenced within his guideline range as
determined by the Court.
It is the intent of the parties that if the Court
does not sentence VINCENT PORTER within his guideline
range as determined by the Court, then the United
States shall be released from this plea agreement.

8.

In
consideration
of
VINCENT
PORTER’S
timely
notification to the United States of his intent to
enter this change of plea, and in consideration of
his acceptance of responsibility as set out in
paragraphs four, six, and seven, the United States
agrees that it will not pursue prosecution against
VINCENT PORTER for a violation of Title 18, United
States Code, Section 924(c) as it relates to the
events of November 24, 2007, which are also the basis
of the indictment at bar.

9.

Should it be judged by the United States that the
Defendant has committed or attempted to commit any
additional crimes or has engaged in any conduct
constituting obstructing or impeding justice from the
date of this plea agreement to the date of the
Defendant’s sentencing, or if the Defendant attempts
to withdraw his plea, the United States will be
released from its obligations and would be free to
argue for any sentence within statutory limits. Such
a breach by the Defendant would not release the
Defendant from this plea of guilty.

3

10.

VINCENT PORTER agrees that this plea agreement
constitutes the entire agreement between himself and
the United States and that no threats have been made
to induce him to plead guilty.

11.

The parties understand and agree that there is no
agreement between the parties concerning the fine, if
any, to be imposed in this case.

12.

By signing this document, VINCENT PORTER acknowledges
he has read this agreement, has discussed it with his
attorney, understands it, and affirms its terms and
conditions.

See Plea Agreement, Porter, No. 08-20111 (W.D. Tenn.), ECF No. 28.
During the change-of-plea hearing on January 7, 2009, the
following exchanges took place between the Court, the attorneys, and
Porter:
The Court:

Mr. Porter, would you state please for the
record your full name?

Defendant:

Vincent Lepreston Porter.

The Court:

Okay. I’m going to get you to spell your
middle name.

Defendant:

L-E-P-R-E-S-T-O-N.

The Court:

How old are you?

Defendant:

Thirty years old.

The Court:

What is your date of birth?

Defendant:

7-22-78.

The Court:

How far did you go in school?

Defendant:

To the 12th grade.

The Court:

Did you graduate?

Defendant:

No, sir.

The Court:

Where were you in school?

Defendant:

Hamilton High School.
4

The Court:

Hamilton.

Why did you leave school?

Defendant:

I had to do a few days in Tall Trees.

The Court:

Sure. Did you get your GED?

Defendant:

No, sir.

The Court:

Have you ever taken your GED?

Defendant:

Yes, sir, but I had took it at Shelby
County Correctional Center.

The Court:

Right.

Defendant:

But I had got out before I got it.

The Court:

Okay. So you still need to finish that,
okay. Let me ask about your reading and
writing skills since you haven’t finished
high school. Would you say that you’re a
very good reader, not so good reader,
pretty good reader?

Defendant:

Yes, sir.

The Court:

Pretty good? Which one of the three, very
good, not so good, or pretty good?

Defendant:

Pretty good.

The Court:

Do you read very much?

Defendant:

Yes, sir.

The Court:

What kinds of things do you read?

Defendant:

I read up on a lot of different things, I
just like reading.

The Court:

Do you read books or do you read magazines
or newspapers, what do you read?

Defendant:

Books, magazines, newspapers.

The Court:

What’s the last book you read, if you
remember, or what was it about?

Defendant:

I can’t quite recall because I been
reading a lot of magazines and newspapers.

5

The Court:

Okay. Do you read the newspaper every day?

Defendant:

Yes.

The Court:

What is your favorite
newspaper to read?

Defendant:

The first part of it.

The Court:

You like to read the first section?

Defendant:

Yeah.

The Court:

Front page, that sort of thing?

Defendant:

Yes.

The Court:

Okay. There’s a story that they’re putting
on now, a whole series, do you remember
what that series is they have in the
Commercial Appeal this week?

Defendant:

No, I haven’t read that part yet.

The Court:

Okay. Because it has got a series about
Mayor Herenton, did you see that series?

Defendant:

No, one of my friends be getting a
newspaper every day, and he just started
back getting them yesterday.

The Court:

So you didn’t get a chance to read it?

Defendant:

No, sir.

The Court:

Well, let me ask this: If you have an
important document to read, do you read it
yourself or do you get somebody else to
help you with it?

Defendant:

No, I read it myself.

The Court:

In this case, there are some important
documents, there’s a plea agreement,
there’s an indictment, did you read those
yourself?

Defendant:

Yes, sir.

The Court:

Do you understand them?

6

part

of the

Defendant:

Yes, sir.

The Court:

If you had any questions about them, would
you have asked Mr. Hall about them?

Defendant:

Yes, sir.

The Court:

Did he explain any questions you had about
them?

Defendant:

Yes, he explained everything to me.

The Court:

Do you fully understand the charges
against you and the terms of the plea
agreement in this case?

Defendant:

Yes, sir.

The Court:

Let me ask about your health, are you
currently under the treatment of any
physician,
any
psychiatrist,
or
psychologist?

Defendant:

Excuse me?

The Court:

Are you under the treatment of any doctor,
psychologist, psychiatrist, or physician,
anybody at all?

Defendant:

No, sir.

The Court:

Are you taking any medication at all?

Defendant:

No, sir.

The Court:

Are you currently under the influence of
anything, any drugs, pills, alcohol,
medication, anything at all?

Defendant:

No, sir.

The Court:

Have you received a copy of the indictment
in this case, that is the charge against
you, and have you reviewed those charges
with Mr. Hall in this case?

Defendant:

Yes, sir.

The Court:

Now, Mr. Hall has been your attorney in
this case, have you been fully satisfied

7

with his counsel, his representation and
his advice to you in this case?
Defendant:

Yes, sir.

The Court:

I have been handed a plea agreement. Did
you have an opportunity to read and
discuss the plea agreement with your
counsel before you signed it?

Defendant:

Yes sir.

The Court:

Does the plea agreement represent the
complete agreement between you and the
government, the entire agreement?

Defendant:

Yes, sir.

The Court:

Do you understand the terms of the plea
agreement?

Defendant:

Yes, sir.

The Court:

Has anyone made any promise or assurance
to you that is not in the plea agreement
to persuade you to accept the terms of the
plea agreement?

Defendant:

No, sir.

The Court:

Has anyone threatened you in any way to
persuade you to accept the plea agreement?

Defendant:

No, sir.

The Court:

I will have the government go over the
plea agreement.

. . . .
The Court:

Mr. Porter, Ms. Johnson has just read over
the plea agreement as it was presented
to me. Is that the agreement as you
understand it?

Defendant:

Yes, sir.

The Court:

Has anyone made any other promise to you
in order to get you to plead guilty?

Defendant:

No, sir.
8

The Court:

Has anyone attempted to force you to plead
guilty in any way?

Defendant:

No, sir.

The Court:

Are you pleading guilty of your own free
will?

Defendant:

Yes, sir.

The Court:

Are you pleading guilty because you are,
in fact, guilty of the offense charged?

Defendant:

Yes, sir.

The Court:

Do you understand that the offense to
which you’re pleading guilty is a felony
offense, and if the court accepts your
plea of guilty you will be adjudicated a
felon, and as such, you will give up
valuable civil rights, including the right
to vote, the right to serve on a jury, the
right to possess any kind of firearm and,
of course, the right to hold public
office?

Defendant:

Yes, sir.

The Court:

The maximum penalty in this case is ten
years in prison, a $250,000 fine, three
years of supervised release, a hundred
dollar special assessment, but if you have
three
prior
convictions
of
violent
felonies or serious drug offenses, then it
changes and becomes no less than 15 years
in prison and not more than life in
prison, a fine of $250,000, five years of
supervised
release
and
a
100-dollar
special assessment. Do you understand the
possible maximum penalties in this case?

Defendant:

Yes, sir.

The Court:

Do you therefore understand what can
happen to you as a result of your guilty
plea?

Defendant:

Yes, sir.

9

The Court:

Have you and Mr. Hall talked about how the
advisory sentencing guidelines may apply
to you in this case?

Defendant:

Yes, sir.

The Court:

Do you understand that the court will not
be
able
to
determine
the
advisory
guideline range for you in this case until
after the presentence report has been
completed and after you and the government
have both had an opportunity to review
that report and object to the facts in the
report and the proposed application of the
guidelines in that report?

Defendant:

Yes, sir.

The Court:

Do you also understand that the sentence
that is actually imposed, the ultimate
sentence may be different from any
estimate of sentence that your counsel or
government counsel or anyone else has
given to you?

Defendant:

Yes, sir.

The Court:

Do you understand that after your initial
advisory
guideline
range
has
been
determined, the court has authority in
some circumstances to depart upward or
downward from that range, and to examine
other
statutory
sentencing
factors,
including those contained in 18 U.S.C.,
Section 3553(a) that may result in the
imposition of a sentence that is either
greater
or
less
than
the
advisory
guideline sentence?

Defendant:

Yes, sir.

The Court:

Do you understand that parole has been
abolished in the federal system, so if you
are sentenced to prison, you will not be
released on parole, you will go to prison?

Defendant:

Yes, sir.

The Court:

Do you also understand that under some
circumstances, you or the government may

10

have a right to appeal any sentence that
is imposed?
Defendant:

Yes, sir.

The Court:

Do you also understand that you have a
right to plead not guilty to the offense
charged in the indictment and to persist
in that plea? You have a right to have a
trial. You have a right to have a trial by
an impartial jury. At that trial, you
would be presumed by the law to be
innocent and the government would have to
prove your guilt beyond a reasonable
doubt. You would have the right to the
assistance of counsel for your defense,
and you would have a right to have counsel
appointed by the court, if necessary. And
of course, you have a right to have
counsel at trial and every other stage of
the proceedings. You would have a right to
see and hear all the witnesses against you
and have those witnesses cross-examined in
your defense. You would have a right to
testify, if you wanted to at trial, but
you would also have an absolute right not
to testify; and if you chose not to
testify, the fact that you did not testify
could not and would not be used against
you. You would also have a right to have
witnesses required by subpoena to be
present to testify in your defense. Do you
understand that you have all of those
rights in connection with a trial in this
case?

Defendant:

Yes, sir.

The Court:

Do you understand that by entering a plea
of guilty, if the court accepts that plea,
there will not be a trial and you will
have forever given up all of those rights?

Defendant:

Yes, sir, I understand.

The Court:

The indictment in this case provides that
on or about November 24 of 2007, in the
Western
District
of
Tennessee,
the
defendant,
Vincent
Porter,
having
previously been convicted of a crime
punishable by imprisonment for a term
11

exceeding one year, did knowingly possess
in and affecting interstate commerce a
firearm, that is an F.I.E. .38 special
semi-automatic pistol, in violation of
Title 18, United States Code, Section
922(g). Do you understand the charge
against you?
Defendant:

Yes, sir.

The Court:

The government would have to prove each
and every essential element of that
charge. For example, the government would
have to prove three things. First, that
you had previously been convicted of a
crime punished by imprisonment for a term
exceeding one year. The second thing the
government would have to prove is that you
knowingly possessed the firearm charged,
that is that you knew that you could
control it and you had the ability to
control it. The third thing they would
have to prove is that firearm traveled in
interstate commerce. That means that it
was at least at some point prior to the
time that you possessed it, it had crossed
a state line. Do you understand what the
government would have to prove in this
case?

Defendant:

Yes, sir.

The Court:

What do you say - what do you say happened
on November 24th of 2007 regarding this
gun, what happened?

Defendant:

I had fell asleep, I had fell asleep over
the wheel of a sports utility vehicle.

The Court:

Okay.

Defendant:

And I was waken up by two police officers.

The Court:

Where was the - where was the vehicle?

Defendant:

Parked in a parking space.

The Court:

Okay.

Defendant:

In some apartments in east Memphis.

12

The Court:

And near what - what were the streets it
was close to?

Defendant:

Kirby Parkway.

The Court:

Kirby Parkway?

Defendant:

Yes.

The Court:

And do you remember the cross streets?

Defendant:

Kirby and Winchester.

The Court:

Kirby and Winchester. And was anybody else
in the vehicle with you?

Defendant:

No, sir.

The Court:

Okay. Where was the gun?

Defendant:

It was in the armrest.

The Court:

Armrest?

Defendant:

Yes.

The Court:

Do you mean that it was in the one - you
were in the driver’s seat?

Defendant:

Yes, sir.

The Court:

Was it the one on your left?

Defendant:

There’s nothing but one in the truck, it
was located under the -

Attorney Hall: I think he means the console.
The Court:

You mean the console?

Defendant:

Yes, sir.

The Court:

Because sometimes there’s a little pocket
there on the door side, but this is in the
console?

Defendant:

Yes, sir.

The Court:

All right. Whose gun was it?

Defendant:

It was mine.
13

The Court:

Okay. What does the government say the
proof could have been?

AUSA Johnson:

Your Honor, on November the 24th of 2007,
around 11:00 o’clock a.m., Memphis Police
Department officers received a call to the
Country Oaks Apartments, and it regarded a
man who was slumped over the wheel of a
Chevy Tahoe, a truck. The officers who
arrived observed the truck, they observed
the man in the truck apparently asleep or
whatever his condition was. The truck was
parked at an angle over two parking
spaces. They approached, the truck was
still running and apparently was in gear.
They attempted by knocking on the windows
to rouse the driver. Ultimately, they had
to reach inside from the passenger’s side
and put the vehicle in park. The driver
was Mr. Porter. He was finally awakened,
and when the officers, I guess, looked at
other things besides Mr. Porter, they saw
some small baggies of marijuana sitting on
the center console that was about 11.2
grams. When Mr. Porter got out of the
truck, the officers observed another small
baggy of marijuana fall from Mr. Porter’s
inner thigh area, another 1.8 grams. Mr.
Porter was detained. Inside the center
console, officers located a marijuana
cigarette. Search incident to arrest,
officers recovered two large baggies of
Lortab pills, 200 tablets; four baggies of
Ecstasy with a little over 230 tablets.
All of these were individually tagged and
wrapped with various amounts. There was
another 9.2 grams of powder cocaine
recovered, two digital scales, a handgun
was recovered, which was the .38 special
that is referenced in the indictment. It
was loaded with two live rounds. It’s
referred to as a Deringer, but after
examination, the manufacturer is this
F.I.E. That was underneath the console.
Organized Crime was called, an additional
amount of powder cocaine, .54 grams was
recovered in the - in a pocket on Mr.
Porter and some other various residue.
There was some receipts with Mr. Porter’s
name on it in the center console. Mr.
Porter was transported to Organized Crime
14

Unit, he was Mirandized, he waived his
Miranda rights and gave a statement
essentially verifying the amounts of
drugs, that they were his, and the
handgun, specifically, I think he said it
was actually his sister’s handgun, but why
did you have the gun, they asked, and he
said it was in the truck for protection
and it was late at night. And he explained
where it was found in the truck. There was
various amounts of cash found on Mr.
Porter or in the truck. That’s essentially
those facts. The firearm in question, this
.38 special semi-automatic pistol was
examined by an agent with the Bureau of
Alcohol,
Tobacco
and
Firearms,
and
determined that it was, in fact, an F.I.E.
.38 Special caliber Deringer. It was
manufactured in Florida so it would be his
opinion that at some point in time it
traveled in interstate commerce. Mr.
Porter, before November 24th, 2007, did
have at least one felony conviction, and
the events that I have just mentioned did
occur here in the Western District of
Tennessee.
The Court:

Any
objection
or
statement of facts?

correction

to the

Attorney Hall: No, Your Honor.
The Court:

Mr. Porter, you have heard all these
things. Having heard all these things, how
do you wish to plead to Count 1 of the
indictment, do you wish to plead guilty or
do you wish to plead not guilty?

Defendant:

I plead guilty.

The Court:

It is the finding of the court in the case
of United States of America versus Vincent
Porter that the defendant is fully
competent and capable of entering an
informed plea, that he is aware of the
nature of the charges and the consequences
of the plea and that the plea of guilty is
a knowing and voluntary plea supported by
an independent basis in fact containing
each of the essential elements of the
offense. The plea of guilty is therefore
15

accepted, and the defendant is now
adjudged guilty of that offense. I need to
advise you that a written presentence
report will be prepared to assist the
court in sentencing in this case, and you
will be asked to give information for that
report. You’re entitled to have your
counsel present at any interview with the
probation officer, if you wish. The court
will permit both you and your counsel to
read the presentence report and file in
writing any objections to that report
before the sentencing hearing, and both
you and your counsel will have an
opportunity to speak on your behalf at the
sentencing hearing in the case.
See Change of Plea Hr’g Tr. 4:7-8:25, 11:10-21:4, Porter, No. 0820111 (W.D. Tenn.), ECF No. 41.
On June 23, 2009, the Court sentenced Porter to one hundred ten
months (110) imprisonment, to be followed by a three-year term of
supervised release. See Minute Entry, Porter, No. 08-20111 (W.D.
Tenn.), ECF No. 37. Judgment was entered on June 23, 2009. See
Judgment, Porter, No. 08-20111 (W.D. Tenn.), ECF No. 38. Porter did
not pursue a direct appeal.
B.

Civil Case Number 10-2477

On June 23, 2010, Petitioner filed the instant § 2255 Motion
alleging ineffective assistance of counsel prior to the guilty plea.
(ECF No. 1 at PageID 1, 5.) Specifically, Defendant alleges that
counsel’s failure to file a motion to suppress illegally obtained
evidence left him no option other than to enter a guilty plea. (Id.
at PageID 5-6.) Porter alleges that the plea agreement restricted
his “appeal rights” which is why he did not pursue a direct appeal.
(Id. at PageID 5, 7, 11.)

16

II.

LEGAL STANDARDS
A.

Section 2255 Motions

Pursuant to 28 U.S.C. § 2255, “[a] prisoner in custody under
sentence of a court established by Act of Congress . . . may move
the court which imposed the sentence to vacate, set aside or correct
the sentence” on the basis that “the sentence was imposed in
violation of the Constitution or laws of the United States, or that
the court was without jurisdiction to impose such sentence, or that
the sentence was in excess of the maximum authorized by law, or is
otherwise subject to collateral attack.” 28 U.S.C. § 2255(a).
A prisoner seeking relief under § 2255 “must show (1) an error
of constitutional magnitude; (2) a sentence imposed outside the
statutory
so

limits;

fundamental

as

or
to

(3)

an

render

error
the

of

fact

entire

or

law

proceeding

that

was

invalid.”

McPhearson v. United States, 675 F.3d 553, 559 (6th Cir. 2012)
(internal quotation marks omitted). 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).
After a § 2255 motion is filed, it is reviewed by the court
and, “[i]f it plainly appears from the petition and any attached
exhibits that the petitioner is not entitled to relief in the
district court, the judge must dismiss the petition.” R. Governing
§ 2255 Proceedings 4 (2010). “If the petition is not dismissed, the
judge must order the respondent 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
17

response. R. Governing § 2255 Proceedings 5(e). The court may also
direct the parties to provide additional information relating to the
motion for relief. R. Governing § 2255 Proceedings 7.
Where a factual dispute arises during the review of a § 2255
motion, the district 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) (internal quotation marks
omitted).

A

hearing

is

not

required,

however,

if

the

record

conclusively shows that the petitioner is not entitled to relief
because

the

petitioner’s

allegations

“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)) (internal quotation marks omitted).
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. Smith v. United States, 348 F.3d
545, 551 (6th Cir. 2003); see also Blackledge v. Allison, 431 U.S.
63, 74 n.4 (1977) (“[A] motion under § 2255 is ordinarily presented
to the judge who presided at the original conviction and sentencing
of the prisoner. In some cases, the judge’s recollection of the
events at issue may enable him summarily to dismiss a § 2255
motion.”).
A § 2255 motion “is not a substitute for a direct appeal.”
Regalado v. United States, 334 F.3d 520, 528 (6th Cir. 2003);
see also Bousley v. United States, 523 U.S. 614, 621 (1998).
“Defendants must assert their claims in the ordinary course of trial
18

and direct appeal.” Grant v. United States, 72 F.3d 503, 506 (6th
Cir. 1996). Accordingly, constitutional claims that could have been
raised on direct appeal, but were not, are barred unless the
defendant demonstrates cause and prejudice sufficient to excuse his
failure to raise these issues previously. See Vanwinkle v. United
States, 645 F.3d 365, 369 (6th Cir. 2011). Ineffective assistance of
counsel in violation of the Sixth Amendment may constitute cause
sufficient to excuse procedural default. See Landrum v. Mitchell,
625 F.3d 905, 916 (6th Cir. 2010) (citing Murray v. Carrier, 477
U.S. 478, 492 (1986)).
B.

Ineffective Assistance of Counsel and Guilty Pleas

A claim that ineffective assistance of counsel has deprived a
defendant of his Sixth Amendment right to counsel is controlled
by the standard articulated in Strickland v. Washington, 466 U.S.
668 (1984). To demonstrate deficient performance by counsel, a
petitioner must demonstrate that “(1) his counsel’s performance
was

deficient;

and

(2)

the

deficient

performance

prejudiced

the defense.” Hodges v. Colson, 711 F.3d 589, 605 (6th Cir. 2013)
(citing

Stickland,

determine

whether

466

U.S.

counsel’s

at

687-88).

performance

“[A]
was

court

need

deficient

not

before

examining the prejudice suffered by the defendant.” Strickland, 466
U.S. at 697. If a reviewing court finds a lack of prejudice, it need
not analyze whether, in fact, counsel’s performance was deficient.
Id.
In considering whether counsel’s performance was deficient,
the court must consider whether counsel’s representation fell below
19

an

“objective

professional

standard
norms.”

of

reasonableness,

Hanna

based

on

v.

F.3d

596,

Ishee,

694

prevailing
612

(6th

Cir. 2012). Courts apply “a strong presumption that counsel’s
representation was within the wide range of reasonable professional
assistance.” Harrington v. Richter, 131 S. Ct. 770, 787 (2011)
(internal quotation marks omitted). The petitioner’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. (internal quotation marks omitted).
To

demonstrate

that

the

deficient

performance

of

counsel

prejudiced the defense, the petitioner must establish “a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Hodges, 711
F.3d at 606 (citing Strickland, 466 U.S. at 694). A reasonable
probability is defined as “a probability sufficient to undermine
confidence in the outcome; certainty of a different outcome is
not required.” Hanna, 694 F.3d at 613 (internal quotation marks
omitted). It is not enough for a petitioner “to show that the errors
had some conceivable effect on the outcome of the proceeding.”
Richter, 131 S. Ct. at 787 (internal quotation marks omitted). The
“errors must be so serious as to deprive the defendant of a fair
trial, a trial whose result is reliable.” Id. at 787-88.
“An ineffective-assistance claim can function as a way to
escape rules of waiver and forfeiture and raise issues not presented
at

trial,

and

so

the

Strickland

standard

must

be

applied

with scrupulous care.” Id. at 788. Accordingly, “[s]urmounting
20

Strickland’s high bar is never an easy task.” Padilla v. Kentucky,
130 S. Ct. 1473, 1485 (2010).
The two-part test stated in Strickland applies to challenges to
guilty pleas based on the ineffective assistance of counsel. See
Hodges, 711 F.3d at 609 (citing Hill v. Lockhart, 474 U.S. 52, 59
(1985)). “Where . . . a defendant is represented by counsel during
the plea process and enters his plea upon the advice of counsel, the
voluntariness of the plea depends on whether counsel’s advice was
within the range of competence demanded of attorneys in criminal
cases.” Lockhart, 474 U.S. at 56 (internal quotation marks omitted).
To demonstrate prejudice “in the context of a challenge to a guilty
plea,”

the

petitioner

need

show

that

“there

is

a

reasonable

probability that, but for the counsel’s errors, he would not have
pleaded guilty and would have insisted on going to trial.” Hodges,
711 F.3d at 610 (internal quotation marks omitted); accord Padilla,
130 S. Ct. at 1485 (“[T]o obtain relief on this type of claim, a
petitioner must convince the court that a decision to reject the
plea bargain would have been rational under the circumstances.”).
III. ANALYSIS
Porter argues that his counsel was ineffective in failing to
seek the suppression of illegally obtained evidence and that, but
for this ineffectiveness, Porter would not have pled guilty. (ECF
No. 1 at PageID 5-6.) While Porter did not assert this claim on
direct appeal, the claim is not procedurally defaulted as a § 2255
motion “is generally the preferred mode for raising a claim of

21

ineffective assistance of counsel.” United States v. Ferguson, 669
F.3d 756, 762 (6th Cir. 2012).
The Court first considers the validity of Porter’s guilty plea
and then considers whether there is any merit to Porter’s assertion
that his counsel provided ineffective assistance during the plea
process.
A.

Validity of the Guilty Plea

“The longstanding test for determining the validity of a guilty
plea is whether the plea represents a voluntary and intelligent
choice

among

the

alternative

courses

of

action

open

to

the

defendant.” Lockhart, 474 U.S. at 56 (internal quotation marks
omitted). “[A] proper, clear, and thorough plea colloquy” cures “any
misunderstanding [the defendant] may have had about the consequences
of his plea.” Ramos v. Rogers, 170 F.3d 560, 561 (6th Cir. 1999).
See also Baker v. United States, 781 F.2d 85, 92 (6th Cir. 1986). A
defendant’s “solemn declarations in open court carry a strong
presumption of verity.” Blackledge v. Allison, 431 U.S. 63, 74
(1977). Accordingly, “[w]hen a criminal defendant has solemnly
admitted in open court that he is in fact guilty of the offense with
which he is charged, he may not thereafter raise independent claims
relating to the deprivation of constitutional rights that occurred
prior to the entry of the guilty plea.” Tollett v. Henderson, 411
U.S. 258, 267 (1973).
Based on the plea colloquy and the applicable law, Porter
knowingly, intelligently, and voluntarily entered a plea of guilty.
First, by signing the plea agreement, Porter expressly acknowledged
22

that he was pleading guilty because he was guilty. In exchange
for his admission of guilt, he received a three-level reduction for
acceptance of responsibility and the Government agreed not to
prosecute him for a violation of 18 U.S.C. § 924(c) as it related to
the events of November 24, 2007, and recommended that Porter receive
a sentence at the lowest end of the applicable sentencing guideline
range. See supra pp. 2-4; accord Plea Agreement, Porter, No. 0820111 (W.D. Tenn.), ECF No. 28.1
Second, Porter acknowledged in open court, under oath, that he
understood the consequences of his guilty plea. As demonstrated in
the Change of Plea Hearing Transcript excerpted above, the Court
thoroughly questioned Porter about his understanding and acceptance
of the plea agreement; Porter was advised of his right to proceed to
trial and assert his alleged innocence; Porter testified that he
understood the charged crime and that he had read and understood the
plea agreement; and Porter testified that no one had attempted to
force him to plead guilty and that he was pleading guilty of his own
free will. See supra pp. 8-11; accord Change of Plea Hr’g Tr.,
Porter, No. 08-20111 (W.D. Tenn.), ECF No. 41. Furthermore, the
Court described the elements of Porter’s offense; Porter admitted
possession and ownership of the weapon; and the Assistant United
States Attorney related Porter’s underlying conduct in possessing
the firearm. See supra pp. 12-15; accord Change of Plea Hr’g Tr.,
Porter, No. 08-20111 (W.D. Tenn.), ECF No. 41. In the instant case,

1

The plea agreement did not contain a waiver of Porter’s right to
appeal his sentence.

23

this thorough plea colloquy would have “cured any misunderstanding”
that Porter may have had regarding the consequences of his plea.
Third, by voluntarily pleading guilty, Porter admitted the
factual basis for the prosecution’s case against him. He cannot now
“invalidate” his guilty plea by making a self-serving claim that his
counsel was ineffective, particularly when the record shows he was
fully informed in open court about the consequences of his plea and
fully admitted that the Government’s factual basis was true and
correct.
The Court, therefore, concludes that Porter’s guilty plea was
knowingly, intelligently, and voluntarily entered.
B.

Ineffective Assistance of Counsel

Porter alleges that his counsel was ineffective in failing to
file a motion to suppress illegally obtained evidence, and had
counsel filed such a motion, Porter would not have entered a plea of
guilty. (ECF No. 1 at PageID 5.) To demonstrate that his counsel was
inefficient during the plea process, Porter must show that his
counsel’s advice was not “within the range of competence demanded of
attorneys in criminal cases” and that, had counsel given competent
advice, “he would have pleaded not guilty and insisted on going to
trial.” Lockhart, 474 U.S. at 56, 60 (internal quotation marks
omitted).
The Court finds that Porter cannot demonstrate that, had his
lawyer filed a motion to suppress, Porter “would have pleaded not
guilty and insisted on going to trial.” First, the evidence of
Porter’s guilt was overwhelming and the plea agreement negotiated by
24

Porter’s counsel was extremely beneficial to Porter. Porter made a
well-reasoned decision to plead guilty to obtain the Government’s
recommendations for a reduction for acceptance of responsibility and
a sentence at the low end of the guidelines range and to avoid
further prosecutions for drug trafficking of marijuana, cocaine,
Ecstasy, and Lortab rather than file a frivolous motion to suppress.
Had Porter not pled guilty, he risked prosecution in both state and
federal courts and multiple consecutive sentences well exceeding the
110-month sentence of imprisonment that he received. Accordingly,
Porter has not convincingly shown that “a decision to reject the
plea bargain would have been rational under the circumstances.” See
Padilla, 130 S. Ct. at 1485.
Second, Porter’s allegation that he had no recourse other than
to plead guilty because counsel did not file a suppression motion is
not

supported

by

the

record.

The

Government

has

provided

the

affidavit of Attorney Scott Hall to rebut Porter’s contention that
he wanted to file a motion to suppress evidence. Hall’s affidavit
states:
I represented Vincent Porter in case number 08-20111 in
the United States District Court for violating 18 U.S.C.
§ 922(g). I also represented Vincent Porter in Shelby
County Criminal Court Division VII on three indictments
(08-02608, 08-02609, 08-01377). Two of the state court
indictments were for multiple Class B felonies, Class D
felonies, and a Class E felony. Because Mr. Porter had
been out on bond when the offenses were committed he was
facing 12 to 20 years on each of the Class B felonies
consecutively as a Range II offender. During plea
negotiations with Assistant United States Attorney
Stephanie Johnson, Mrs. Johnson advised that the
government was seeking a 21 U.S.C. § 841 indictment
against Mr. Porter and possibly an 18 U.S.C. § 924(c)

25

indictment for possessing a firearm in connection with a
drug offense.
After reviewing all discovery in Mr. Porter’s state and
federal cases it was apparent that the likelihood of
conviction was great. Mr. Porter and I explored and
discussed any possible suppression issues regarding his
federal case. My opinion as well as Mr. Porter’s opinion
was that there was no merit for any suppression motion.
The facts of his federal case were as follows. Mr. Porter
was found passed out behind the wheel of a running vehicle
while it was in gear with his foot on the brake. Officers
had to knock on the window for several minutes to wake Mr.
Porter. Officers observed a bag of marijuana on Mr.
Porter’s lap. That observation coupled with Mr. Porter’s
consent justified a vehicle search. The search yielded
11.2 grams of marijuana, 188 Ecstasy pills, 200 Lortab
pills, 9.2 grams of cocaine, two digital scales, and a .38
special handgun loaded with two live rounds. Mr. Porter
expressly stated that he did not wish to file any
suppression motions. He understood clearly his predicament
and always intelligently made decisions. I am very
surprised he has filed this frivolous claim.
Based on the above facts, I negotiated a settlement with
both the United States and the Shelby County District
Attorney’s Office. In exchange for Mr. Porter’s plea to
the 922(g) indictment the United States would not seek the
additional indictments mentioned above and the State would
dismiss all pending indictments against Mr. Porter. This
was a great deal in light of the exposure Mr. Porter faced
in both jurisdictions. I did not hesitate in advising Mr.
Porter to accept the deal. Moreover, Mr. Porter did not
hesitate in accepting the deal because he was well aware
of the potential of spending many more years in state and
federal prison than only 110 months.
(ECF No. 9-1.)
Porter has filed his own affidavit in rebuttal. (ECF No. 12-1.)
Porter disagrees that he and his counsel explored and discussed
possible suppression issues, disagrees that the arresting officers
saw the bag of marijuana on his lap before his arrest, disagrees
that he consented to the search of his vehicle, and disagrees that
he told counsel he did not want to file a suppression motion. (Id.

26

¶¶ 2-5.) Porter admits, however, that he was asleep in a truck still
in gear with the engine running and his foot on the brake when
police officers were summoned. (ECF No. 1 at PageID 5.) Porter
further admits that a bag of marijuana fell from his lap to the
ground when he exited the vehicle. (Id.)
Porter’s instant version of events, however, is not supported
by the record in his criminal case. Porter admitted his guilt to the
following facts contained in the Government’s offer of proof during
the hearing on Porter’s change of plea:

officers observed baggies

of marijuana on the center console of the vehicle before Defendant
got out of the truck, see Change of Plea Hr’g Tr. 18:6-8, Porter,
No. 08-20111 (W.D. Tenn.), ECF No. 41; his vehicle was searched
incident to his arrest and additional drugs, scales, and the handgun
were discovered, id. 18:13-24; and Porter was taken to the Organized
Crime Unit where he waived his Miranda rights and gave a confession
admitting that the drugs were his and that he had the handgun for
protection, id. 19:3-10. These facts have not been rebutted by
Porter.
Finally, Porter’s behavior does not support his position that
he would not have pled guilty but for counsel’s failure to file a
motion to suppress. Porter testified that he was fully satisfied
with his counsel, counsel’s representation, and counsel’s advice in
this case. See supra pp. 7-8; accord Change of Plea Hr’g Tr. 8:3-6,
Porter, No. 08-20111 (W.D. Tenn.), ECF No. 41. Porter did not raise
counsel’s failure to file a suppression motion before the entry of
his plea, during sentencing, or on direct appeal. Porter does not
27

allege that he told counsel the version of events related in this
motion. He does not allege that he requested counsel to raise the
issue on appeal. Porter did not attempt to withdraw his guilty plea
at any point in the proceedings in the district court. Furthermore,
Porter does not allege that he requested counsel to assist him in
withdrawing his guilty plea.
Porter has failed to establish that he would not have pled
guilty

in

this

case

had

counsel

taken

any

different

action.

Accordingly, Porter cannot sustain an ineffective-assistance-ofcounsel claim. The Court, therefore, concludes that Porter’s § 2255
Motion,

together

with

the

files

and

record

in

this

case,

“conclusively show that the prisoner is entitled to no relief.” 28
U.S.C. § 2255. Porter’s conviction and sentence are valid and,
therefore, his § 2255 Motion is DENIED.
IV.

APPEAL ISSUES
Twenty-eight U.S.C. § 2253(a) requires the district court to

evaluate the appealability of its decision denying a § 2255 motion
and to issue a certificate of appealability “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 petitioner may appeal without this certificate. U.S.C.
§ 2253(c)(1). A “substantial showing” involves demonstrating 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.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000)
28

(quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)). A
court,

however,

[certificate

of

“should

not

appealability]

decline
merely

the

application

because

it

of

believes

a
the

applicant will not demonstrate an entitlement to relief.” Miller-El
v. Cockrell, 537 U.S. 322, 337 (2003) (internal quotation marks
omitted). “The question is the debatability of the underlying
constitutional claim, not the resolution of that debate.” Id. at
342.2
In this case, for the reasons previously stated, the issues
raised by Porter lack substantive merit. Accordingly, 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 prisoner must obtain pauper status
pursuant to Fed. R. App. P. 24(a). Kincade, 117 F.3d at 952. Rule
24(a) provides that 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)(1). However, Rule 24(a) also

2
The Supreme Court also emphasized that “[o]ur holding should not be
misconstrued as directing that a COA always must issue.” Miller-El, 537 U.S. at
337. Instead, the COA requirement implements a system of “differential treatment
for those appeals deserving of attention from those that plainly do not.” Id.

29

provides 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

the

Court

denies

a

certificate of appealability, the Court determines that any appeal
would not be taken in good faith. It is, therefore, CERTIFIED,
pursuant to Fed. R. App. P. 24(a), that any appeal in this matter
would not be taken in good faith. Leave to appeal in forma pauperis
is DENIED. If Defendant files a notice of appeal, he must also pay
the full $455 appellate filing fee or file a motion to proceed in
forma pauperis and supporting affidavit in the United States Court
of Appeals for the Sixth Circuit within thirty (30) days.
V.

CONCLUSION
For the foregoing reasons, Petitioner’s § 2255 Motion is

DENIED.
SO ORDERED this 10th day of July, 2013.
s/ Jon P. McCalla
JON P. McCALLA
CHIEF US DISTRICT JUDGE

30