Cole v. United States of America
Filing
13
ORDER denying motion under 28 U.S.C. § 2255, denying certificate of appealability, and certifying appeal not taken in good faith. Signed by Judge Jon Phipps McCalla on 7/13/2015. (McCalla, Jon)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
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BRANDON COLE,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.
No. 2:12-cv-02382-JPM-dkv
Cr. No. 2:08-cr-20425-JPM-1
ORDER DENYING MOTION UNDER 28 U.S.C. § 2255;
ORDER DENYING CERTIFICATE OF APPEALABILITY;
AND
ORDER CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH
On May 18, 2012, Defendant Brandon Cole, Bureau of Prisons
registration number 22823-076, an inmate at FCI – Talladega in
Talladega, Alabama, filed a Motion pursuant to 28 U.S.C. § 2255
(“§ 2255 Motion”).
(ECF No. 1.)
On October 2, 2012, Cole filed
a supplement to his § 2255 Motion (“§ 2255 Supplement”). 1
No. 2.)
(ECF
On December 19, 2012, the Court directed the United
States to file a response.
(ECF No. 3.)
filed a response on January 11, 2013.
The United States
(ECF No. 4.)
On motion
from Movant, the Court gave leave to the Movant to file a reply
by May 13, 2015.
(ECF No. 12.)
Movant has not filed a reply.
For the reasons stated below, the § 2255 Motion is DENIED,
and a certificate of appealability is DENIED.
1
The Court also
The Court granted Movant leave to file the § 2255 Supplement on December 19,
2012. (ECF No. 3.)
finds that an appeal would not be taken in good faith.
Leave to
appeal in forma pauperis is DENIED.
I. BACKGROUND
The Sixth Circuit provided a concise statement of the facts
supporting Cole’s conviction in its opinion on direct appeal:
On November 19, 2008 officers of the Memphis
Police Department (“MPD”) arrested Cole for burglary
after he ran away from them in an area surrounding a
burglarized home. The officers found items stolen in
the burglary on Cole's person. Though Cole was
handcuffed and placed in the rear of a marked police
car, he managed to wriggle out of the restraints and
drive off with the car. Cole eventually parked the car
at a friend's house and then took the items stolen
from the house, along with guns and ammunition
belonging to the MPD, from the squad car and hid them
behind the house before stealing a red Camry from a
nearby carport. Officers spotted Cole in the Camry as
he was driving and began pursuing him. Later, Cole
reached a dead end, stopped the Camry and put it in
reverse, almost hitting one of the detectives and
striking a police vehicle in which another detective
was sitting.
A hundred-mile per-hour chase ensued. The
officers followed Cole through residential
neighborhoods and were forced to ignore many traffic
signals in pursuit. Ultimately, Cole came to a stop
and attempted to flee on foot. The officers caught up
with him as he was climbing a fence. A detective
launched himself at Cole, causing Cole and the
detective to fall off the fence together. Cole landed
on the detective and began punching him, continuing to
struggle until another detective was able to handcuff
Cole's wrists and ankles. During the struggle the
detectives asked Cole where the weapons taken from the
patrol vehicle were located and he responded with the
location.
United States v. Cole, 422 F. App’x 471, 472 (6th Cir. 2011).
2
On December 17, 2008, a federal grand jury indicted Cole in
a one-count Indictment charging him with possession of a firearm
after a felony conviction, in violation of 18 U.S.C. § 922(g)
(Count One).
(United States v. Cole, No. 2:08-cr-20425-JPM-1
(W.D. Tenn.), ECF Nos. 1–3.)
On July 22, 2009, Cole pled guilty
to the Indictment pursuant to a written plea agreement.
ECF Nos. 26, 28, 29.)
(Id.,
The plea agreement provided:
PLEA AGREEMENT
The full and complete plea is as follows:
BRANDON COLE agrees that he will enter a
voluntary plea of guilty to count one (1) of the
indictment.
The United States agrees to recommend that
BRANDON COLE be sentenced at the low end of the
applicable sentencing guideline range. The defendant
understands that any recommendations made by the
United States are not binding on the court and should
the court not accept the recommendation or request the
defendant nevertheless [sic] has no right to withdraw
the plea.
Given the facts in the possession of the United
States at the time of the writing of this agreement,
the United States does not oppose the defendant
receiving the full threee [sic] (3) points for
acceptance of responsibility credit pursuant to
U.S.S.G. Section 3E1.1. The defendant understands
that if the United States receives information between
the signing of this agreement and the time of the
sentencing that the defendant has previously engaged
in, or if he engages in the future, in conduct
inconsistent with the acceptance of responsibility,
including, but not limited to, participation of any
additional criminal activities between now and the
time of sentencing, this position could change.
Further, the defendant understands that whether or not
acceptance of responsibility credit pursuant to
Section 3E1.1 is granted is a matter to be determined
3
by the district court. Failure of the district court
to grant acceptance of responsibility credit is not a
basis for BRANDON COLE to withdraw his guilty plea.
BRANDON COLE agrees that for the calculation of
his advisory guideline range a total of six (6) points
are applicable in his case pursuant to U.S.S.G.
§ 2K2.1(b)(4)(A) and 2K2.1(b)(6) [sic]
BRANDON COLE 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. By signing this
document, BRANDON COLE acknowledges that he has read
this agreement, has discussed it with his attorney, is
satisfied with his attorney’s counsel and
representation, and understands the agreement.
(Id., ECF No. 29 at PageID 33–35.)
A presentence report (“PSR”) was prepared recommending a
total offense level of thirty-three pursuant to United States
Sentencing Guideline (“U.S.S.G.”) § 2K2.1(a)(2) (because the
firearm was possessed subsequent to at least two prior felony
crimes of violence), § 2K2.1(b)(4)(a) (increasing two levels
because the firearm was stolen), pursuant to § 2K2.1(b)(6)
(increasing four levels because the firearm was possessed in
connection with another felony offense), § 3A1.2(c)(1)
(increasing six levels because of the risk of serious bodily
injury to law enforcement officers during flight), and § 3E1.1
(decreasing three points for acceptance of responsibility).
(PSR at 6.)
On October 23, 2009, Defense counsel filed his Position
with Respect to Sentencing Factors.
4
(United States v. Cole, No.
2:08-cr-20425-JPM-1 (W.D. Tenn.), ECF No. 31.)
Defense counsel
agreed that “the Probation Officer accurately calculated the
applicable guidelines in this case.”
(Id. at 2.)
On October 26, 2009, the Court held Cole’s sentencing
hearing.
Cole’s counsel explained that the discussion in his
Position filing with respect to § 2K2.1(b)(6) was not an
objection to the enhancement.
(Id., ECF No. 41 at PageID 123.)
According to Cole’s counsel:
It is just in a discussion of Section 3553(a)
factors, I point out that his actual possession was
very short of the firearm and that it didn't actually
have any real participation in the high speed chase.
But the moment he took it out of that squad car, he
certainly engaged in a burglary of a vehicle, and that
would require the four-level enhancement, so we don't
object to it as a proper guideline calculation, we
just point out some factors and some of the realities
of what that possession was in our discussion of the
3553(a) factors, and that goes more into whether any
type of a variance down from the guideline range would
be appropriate as well.
(Id.)
When the Court reconvened to complete the sentencing
hearing on October 28, 2009, the Court determined, after careful
consideration, that the enhancement under § 2K2.1(b)(6) was
appropriate.
(Id., ECF No 42 at PageID 137–39.)
At the October 28, 2009, hearing, Cole’s counsel argued
that the appropriate sentence was a below guidelines sentence of
180 months.
(Id. at PageID 144–48.)
The Government argued that
the appropriate sentence was 235 months -- a sentence at the
5
bottom of the recommended Guideline range.
(Id. at PageID 148–
54.)
In light of the recommended Guideline range and the factors
articulated in 18 U.S.C. § 3553(a), the Court sentenced Brandon
Cole to a term of imprisonment of 235 months, three years of
supervised release, and a special assessment of $100.
(Id. at
PageID 177–78.)
II.
LEGAL STANDARD
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 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) (internal quotation marks omitted).
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).
6
“If claims have been forfeited by virtue of ineffective
assistance of counsel, then relief under § 2255 would be
available subject to the standard of Strickland v. Washington,
466 U.S. 668 . . . (1984).”
503, 506 (6th Cir. 1996).
Grant v. United States, 72 F.3d
To demonstrate deficient performance
by counsel, a petitioner must demonstrate that “counsel’s
representation fell below an objective standard of
reasonableness.”
Strickland, 466 U.S. at 687-88.
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, 562 U.S. 86, 104 (2011).
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.”
694. 2
Strickland, 466 U.S. at
“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
2
“[A] court need not determine whether counsel’s performance
was deficient 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 determine whether, in
fact, counsel’s performance was deficient. Id.
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trial, a trial whose result is reliable.”
687.
Id., at
Richter, 562 U.S. at 104.
III. ANALYSIS
Cole argues that his attorney was ineffective for four
reasons: (1) “Mr. Perry refuse[d] to contest the ACCA
enhancement” (§ 2255 Motion at PageID 4); (2) “Mr. Perry failed
to submit 2nd addendum of PSI that affected PSI Criminal History
Points by 3 points[,] which affect[ed] [Cole’s] sentence by 30
to 57 months (id. at PageID 6); (3) “Mr. Perry [was] ineffective
for advising defendant to sign plea without verification of Case
law to support enhancement 2K2.1(b)(6)” (id. at PageID 8); and
(4) “Mr. Perry failed to have defendant[’s] mental health record
[and] history submit[ted] [and] researched” (id. at PageID 9).
A. Failure to Contest the ACCA Enhancement
Movant argues that his counsel was constitutionally
ineffective for failing to object to Cole’s classification as an
armed career criminal under the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e).
(§ 2255 Motion at PageID 4.)
According to Cole, his offenses would not have qualified as ACCA
predicate offenses under the modified categorical approach, and
he was therefore prejudiced by his counsel’s failure to object.
(Id.; see also § 2255 Supplement, ECF No. 2.)
Respondent argues in response that Cole cannot show
prejudice on this claim.
(Response to § 2255 Motion at 11–12.)
8
According to Respondent, Cole’s sentence was not influenced by
his status under the ACCA because his Guidelines range was
higher under U.S.S.G. § 2K2.1.
(Id.)
The Court agrees with Respondent.
Even though Cole’s
Presentence Investigation Report (“PSR”) found that Cole was an
Armed Career Criminal within the meaning of the ACCA and
U.S.S.G. § 4B1.4, this finding did not affect Cole’s Guideline
range.
Under U.S.S.G. § 4B1.4(b) (2007), the offense level for
an Armed Career Criminal is the greatest of:
(1) the offense level applicable from Chapters
Two and Three; or
(2) the offense level from §4B1.1 (Career
Offender) if applicable; or
(3) (A) 34, if the defendant used or possessed
the firearm or ammunition in connection with either a
crime of violence, as defined in §4B1.2(a), or a
controlled substance offense, as defined in §4B1.2(b),
or if the firearm possessed by the defendant was of a
type described in 26 U.S.C. § 5845(a)*; or
(B) 33, otherwise.* 3
According to Cole’s PSR, after adjustment for acceptance of
responsibility on motion from the Government, Cole’s offense
level was 33.
(PSR at 6.)
Under § 4B1.4(b)(3)(B) after
adjustment, Cole’s offense level was 30.
Consequently, the
applicable offense level under § 4B1.4(b) was 33 – 3 points
3
Asterisks indicate that the offense level can be modified downward for
acceptance of responsibility.
9
higher than the level that Cole would have received as an Armed
Career Criminal.
Even if Cole’s attorney were to have successfully contested
Cole’s classification under the ACCA, it would not have affected
the applicable Guidelines range.
Because the Court found that a
within-Guidelines sentence was appropriate (United States v.
Cole, No. 2:08-cr-20425-JPM (W.D. Tenn.), ECF No. 42 at PageID
174) -- and because that determination was not dependent on
Cole’s classification under the ACCA -- Cole has failed to
demonstrate any prejudice from his counsel’s failure to object
to his classification under the ACCA.
is without merit. 4
Accordingly, this claim
See Strickland, 466 U.S. at 697 (holding that
prejudice is a necessary condition to establish ineffective
assistance of counsel).
B. Failure to Allow Cole to Review Second Addendum of PSR
According to Cole, the Second Addendum to the PSR
calculated Cole’s “criminal offense level to 30 [with] a
sentencing range of 168–210 [months].”
6.)
(§ 2255 Motion at PageID
Cole states that he “was never given the opportunity to see
the[] added addendum before sentence[ing].”
4
(Id.)
Cole argues
In his related case, Cole filed a Motion to Postpone pending the Supreme
Court’s decision in United States v. Johnson, 134 S. Ct. 1871 (2014)
(granting certiorari). (United States v. Cole, No. 2:08-cr-20425-JPM (W.D.
Tenn.), ECF No. 51.) In its recent ruling, the Supreme Court held that
“imposing an increased sentence under the residual clause of the Armed Career
Criminal Act violates the Constitution’s guarantee of due process.” Johnson
v. United States, No. 13-7120, 2015 WL 2473450, at *11 (U.S. June 26, 2015).
Because Cole’s sentence was not affected by the ACCA, the Court finds that
the Supreme Court’s decision in Johnson has no impact on this case.
10
that his counsel’s failure to show him the Second Addendum
prevented Cole from objecting to the Court’s calculation of
Cole’s applicable offense level and Guidelines range.
(Id.)
Movant incorrectly characterizes the Second Addendum to the
PSR.
The Second Addendum calculated that a criminal offense
level of 30 and a sentencing range of 180 to 210 months would
apply if the Court found that the four level enhancement under
§ 2K2.1(b)(6) did not apply.
(2d Addendum to PSR at 3–4.)
The
Court found, however, that the enhancement under § 2K2.1(b)(6)
was appropriate.
Cole also agreed to the enhancement as part of
his plea agreement.
(United States v. Cole, No. 2:08-cr-20425-
JPM (W.D. Tenn.), ECF No. 29 at PageID 34.)
Because the
calculations in the Second Addendum were irrelevant to the
determination of Cole’s applicable Guidelines range, no
prejudice resulted from his not having seen the Second Addendum.
Accordingly, the Court finds that this claim is without merit.
See Strickland, 466 U.S. at 697.
C. Ineffective Assistance Due to Advising Cole to Sign
Agreement Including Concession to Enhancement under
§ 2K2.1(b)(6) and Failing to Object to Enhancement
Cole argues that his counsel provided constitutionally
ineffective assistance by advising Cole to sign a plea deal that
acknowledged an enhancement under § 2K2.1(b)(6) was appropriate.
(§ 2255 Motion at PageID 8.)
Cole also avers that his attorney
11
provided ineffective assistance by failing to object to the
enhancement.
(Id.)
“Where, as here, 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.’”
Hill v. Lockhart, 474 U.S. 52,
56 (1985) (quoting McMann v. Richardson, 397 U.S. 759, 771
(1970)).
Ineffective assistance of counsel based on incompetent
advice to take a plea deal only amounts to constitutional error,
however, when prejudice is established.
Id. at 57-60.
Such a
showing requires an allegation that in the absence of counsel’s
alleged incompetence, the defendant “would have pleaded not
guilty and insisted on going to trial.”
Id. at 60.
Cole did not allege that but for counsel’s alleged
incompetence, he would have pleaded not guilty and insisted on
going to trial.
Additionally, in light of the existence of the
concession to the enhancement in the plea deal and the Court’s
determination that the enhancement did apply to Cole, Cole can
show no prejudice in his counsel’s failure to object to the
enhancement under § 2K2.1(b)(6).
that this claim is without merit.
12
The Court, therefore, finds
D. Failure to Instruct Probation Officer Compiling PSR to
Investigate Cole’s Mental Health with Respect to
Diagnoses of ADD and ADHD
Cole argues that his counsel was constitutionally
ineffective because he “failed to [i]nstruct Mr. Marlin to
research Mr. Cole[’s] claim of ADD & ADHD.”
PageID 9.)
failure.
(§ 2255 Motion at
Cole cannot demonstrate prejudice from this alleged
At the time of sentencing, the Court was aware of
Cole’s mental health issues, and in fact stated:
I’m also aware that you were diagnosed with ADD.
. . . I’m aware that there [are] some issues there,
and that’s true of just about everybody. So we don’t
give that weight in terms of the calculation, but,
again, we try to deal with it in terms of things that
we might do to help out because if we can help, we
want to help, and that is something we need to know
about.
(United States v. Cole, No. 2:08-cr-20425-JPM (W.D. Tenn.), ECF
No. 42 at PageID 167-68.)
The PSR also stated that Cole had
been diagnosed with ADD at a young age.
(PSR at 23.)
Because
the Court was aware of Cole’s diagnosis, further instruction by
Cole’s counsel to the probation officer would not have had any
effect on Cole’s sentence.
Consequently, Cole has not
demonstrated prejudice on this claim as required by Strickland.
Cole’s claim, accordingly, is without merit.
IV.
CONCLUSION
The 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(b).
Defendant’s conviction and sentence are
13
valid and, therefore, his Motion to Vacate (ECF No. 1) is
DENIED.
Judgment shall be entered for the United States.
Pursuant to 28 U.S.C. § 2253(c)(1), the district court is
required 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.”
see also Fed. R. App. P. 22(b).
28 U.S.C. § 2253(c)(2);
No § 2255 movant may appeal
without this certificate.
A COA may issue only if the movant has made a substantial
showing of the denial of a constitutional right, and the COA
must indicate the specific issue or issues that satisfy the
required showing.
28 U.S.C. § 2253(c)(2), (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) (citation omitted) (internal quotation marks omitted).
COA does not require a showing that the appeal will succeed.
A
Miller-El, 537 U.S. at 337.
matter of course.
Courts should not issue a COA as a
Bradley v. Birkett, 156 F. App’x 771, 773
(6th Cir. 2005).
14
In this case, for the reasons previously stated,
Defendant’s claims 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.
117 F.3d 949, 951 (6th Cir. 1997).
Kincade v. Sparkman,
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 Federal Rule of Appellate
Procedure 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).
Rule 24(a), however, also 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.
15
It is, therefore,
CERTIFIED, pursuant to Federal Rule of Appellate Procedure
24(a), that any appeal in this matter would not be taken in good
faith, and leave to appeal in forma pauperis is DENIED.
If
Defendant files a notice of appeal, he must also pay the full
$505 appellate filing fee (see 28 U.S.C. §§ 1913, 1917) 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 (see Fed. R. App. P. 24(a) (4)–(5)).
IT IS SO ORDERED, this 13th day of July, 2014.
/s/ Jon P. McCalla
JON P. McCALLA
UNITED STATES DISTRICT JUDGE
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