Cook v. United States of America

Filing 17

ORDER denying 1 Motion to Vacate; 13 Motion to Vacate. Signed by Judge Samuel H. Mays, Jr on 03/31/2017. (Mays, Samuel)

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

STEPHEN COOK,

)
)
)
)
)
)
)
)
)

Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

No. 2:14-cv-02077-SHM

ORDER

Before the Court are two motions.

On February 3, 2014, Pe-

titioner Stephen Cook filed a Motion Under 28 U.S.C. § 2255 to
Vacate, Set Aside, or Correct Sentence by a Person in Federal
Custody.

(ECF No. 1 (“First § 2255 Mot.”); see also Mem. of Law

in Supp. of Pet’r’s § 2255 Mot., ECF No. 1-1 (“Mem. ISO First
§ 2255 Mot.”).)

Respondent United States of America (the “Gov-

ernment”) filed a response to the First § 2255 Motion on July
29, 2014.

(Resp. to Pet’r’s Mot. to Vacate, Set Aside, or Cor-

rect Sentence Pursuant to 28 U.S.C. § 2255, ECF No. 11 (“Resp.
to First § 2255 Mot.”).)
of

the

First

§ 2255

Cook has not filed a reply in support

Motion,

leave to do so has passed.

and

the

deadline

for

requesting

L.R. 7.2(c).

On February 26, 2016, Cook filed another document titled
“Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct

Sentence by a Person in Federal Custody.”

(ECF No. 13 (“Second

§ 2255 Mot.”); see also Mot. Pursuant to Sec. 2255 to Vacate[,]
Set Aside or Correct Sentence, ECF No. 13 (“Mem. ISO Second
§ 2255 Mot.”). 1)

The Government has not filed a response to the

Second § 2255 Motion.
For the following reasons, the § 2255 Motions are DENIED.
I.

BACKGROUND
A.

Case No. 11-20006

On January 11, 2011, a federal grand jury returned a twocount

indictment

against

thirteen

defendants,

(Indictment in 11-20006, 2 ECF No. 3.)
(Id. at 1, 3.)

including

Cook.

Both counts named Cook.

Cook was charged with (1) one count of conspir-

ing to possess, with the intent to distribute, at least 1,000
kilograms of a mixture and substance containing marijuana, in
violation of 21 U.S.C. § 846 (“Count 1”); and (2) one count of
conspiring to possess, with the intent to distribute, 500 grams
or more of a mixture and substance containing methamphetamine,
in violation of 21 U.S.C. § 846 (“Count 2”).

(Id. at 1–3.)

On

1

The document titled “Motion Pursuant to Sec. 2255 to Vacate[,]
Set Aside or Correct Sentence” (PageID 73–82 in ECF No. 13),
which Cook submitted together with the Second § 2255 Motion, is
best understood as a memorandum in support of the Second § 2255
Motion. The Court will refer to this document as the Memorandum
in Support of the Second § 2255 Motion.
2

References to “11-20006” are to filings in United States v.
Cook, No. 2:11-20006-SHM-tmp (W.D. Tenn.).
References to “135264” are to filings in United States v. Cook, No. 13-5264 (6th
Cir.).

2

May 18, 2011, a federal grand jury returned a First Superseding
Indictment.

(ECF No. 175 in 11-20006.)

The superseding indict-

ment removed one defendant and added four others, but did not
change the substantive allegations against Cook.

(ECF No. 175

in 11-20006.)
On January 13, 2012, Cook and the Government filed in open
court a previously agreed-upon Plea Agreement.

(ECF No. 397 in

11-20006 (“Plea Agreement”); Minutes, ECF No. 395 in 11-20006.)
In the Plea Agreement, Cook agreed to plead guilty to Count 1 of
the First Superseding Indictment.

(Plea Agreement ¶ 1.)

The

Government agreed that, at sentencing, it would move for dismissal of any remaining counts of the indictment.

(Id. ¶ 2.)

Paragraph 4 of the Plea Agreement addresses the possibility
that Cook will receive a sentencing reduction for acceptance of
responsibility:
[Cook] acknowledges that the Government will
recommend that [he] receive the full reduction for acceptance of responsibility under
U.S. Sentencing Guidelines § 3E1.1, providing [Cook] commits no new criminal offenses
and continues to demonstrate an affirmative
acceptance of responsibility, including acknowledging guilt in open court to the facts
as set out in the indictment.
However,
[Cook] understands that whether or not acceptance of responsibility is granted is a
matter to be determined by the district
court, and failure of the district court to
grant acceptance of responsibility is not a
basis for the defendant to withdraw his
guilty plea or to appeal his sentence.

3

Paragraph

7

of

the

Plea

Agreement

contains

a

waiver

of

Cook’s right to appeal his conviction or sentence and a waiver
of certain collateral attacks under § 2255:
[Cook] acknowledges that he has been advised
and does fully understand that if he proceeded to trial and had been convicted, that
he would have had the right to appeal the
conviction. He understands that by pleading
guilty, he gives up the right to appeal the
conviction.
Based on concessions made in
this plea agreement by the United States,
[Cook] also hereby waives his rights to appeal his sentence, unless the sentence exceeds the maximum permitted by statute or is
the result of an upward departure from the
guideline range that the court establishes
at sentencing.
In this regard, it is also
understood that [Cook] waives his right to
challenge the manner in which the sentence
was determined, and (in any case in which
the term of imprisonment and fine are within
the maximums provided by statute) his attorney’s alleged failure or refusal to file a
notice of appeal, in any collateral attack
or future challenge, including but not limited to a motion brought under [28 U.S.C.
§ 2255].
On January 31, 2012, the Court entered an Order on Change
of Plea stating that “[p]lea colloquy was held and the Court accepted [Cook’s] plea.”

(ECF No. 399 in 11-20006.)

Before Cook’s sentencing hearing, the U.S. Probation Office
prepared a Presentence Investigation Report.

(Presentence In-

vestigation Report in 11-20006-1 (“PSR”) (on file with Court).)
The PSR calculated Cook’s guidelines-sentencing range pursuant

4

to the 2011 edition of the U.S. Sentencing Commission Guidelines
Manual (“U.S.S.G.”).
Cook’s
U.S.S.G.

§

base

(Id. ¶ 26.)

offense

2D1.1).)

level

That

was

was

36.

based

on

(Id.
a

¶

drug

27

(citing

quantity

of

6,622.56 kilograms of marijuana, 30 kilograms of cocaine, and
2.47 kilograms of methamphetamine.

(Id.)

The offense level was

adjusted upward by four points based on Cook’s being “an organizer or leader of a criminal activity that involved five or more
participants.”

(Id. ¶ 30 (citing U.S.S.G. § 3B1.1(a).)

produced an adjusted offense level of 40.

(Id. ¶ 32.)

That

The PSR

incorporated a three-point adjustment for acceptance of responsibility.

(Id. ¶ 33 (citing U.S.S.G. § 3E1.1).

a total offense level of 37.
After

reviewing

The result was

Cook’s

(Id. ¶ 36.)
criminal

history,

the

PSR

stated

that he had zero criminal-history points, leading to a criminalhistory category of I.

(Id. ¶ 40; see also id. ¶¶ 38–39 (list-

ing prior adult convictions).)
Cook’s recommended guidelines-sentencing range, based on a
total offense level of 37 and a criminal-history category of I,
was 210 to 262 months.

(Id. ¶ 81; see U.S.S.G. ch. 5 pt. A.)

His statutory minimum sentence was 120 months.
ing 21 U.S.C. § 846).)

5

(PSR ¶ 80 (cit-

On October 15, 2012, Cook filed objections to the PSR. 3
(Def.’s Objs. to the Presentence Investigation Report, ECF No.
669 in 11-20006.)

Two are relevant here.

First, Cook objected

to numerous paragraphs in the PSR on the ground that there was
no “factual basis for determining that he had any involvement in
the transport of any cocaine or methamphetamine,” as opposed to
transport of marijuana.

(Id. at 1.)

Therefore, Cook contested

the calculation of his base offense level.

(Id. at 2.)

Second,

Cook objected to Paragraph 30 of the PSR “to the extent that it
allege[d] that [Cook] was an organizer or leader” of the relevant operation.

(Id.)

A sentencing hearing took place on February 15, 2013.

(Mi-

nute Entry, ECF No. 806 in 11-20006; see also Tr. of Sentencing,
ECF No. 872 in 11-20006 (“Sentencing Tr.”).)

As to the first

objection, the parties and the Court agreed that Cook’s offense
level would not be based on any transport of methamphetamine.
(Id. at 14–15; see also id. at 141.)

They also agreed that Cook

would be sentenced only based on 30 kilograms of cocaine. 4

(Id.

3

Between the filing of the plea agreement and the filing of
Cook’s objections to the PSR, Cook switched attorneys.
(See,
e.g., Not. of Appearance, ECF No. 491 in 11-20006; Minutes, ECF
No. 506 in 11-20006.)
4

The Government offered to present proof of Cook’s involvement
in the possession of more than 30 kilograms of cocaine, if Cook
continued to object that he had no involvement with cocaine.
(Id. at 8–9, 12–13.)

6

at 14–15; see also id. at 143.)

Those agreements did not reduce

Cook’s base offense level of 36.

(Id. at 16.)

The

Court

heard

leader objection.

testimony

addressing

(Id. at 25–95.)

Cook’s

organizer/

Before hearing testimony,

the Court stated:
Mr. Cook might succeed [with his objection]
in which case his offense level would be reduced by four. If he fails and I conclude,
I suppose, for the government or I conclude
that he has frivolously denied relevant conduct, then he probably will have his offense
level increased by three because I won’t be
inclined to find his acceptance of responsibility on the record.
(Id. at 24.)
The Government presented testimony from George Stauffer, an
agent with the Shelby County Sheriff’s Department’s DEA Task
Force, and Ethel Foster, Cook’s aunt and a codefendant in Cook’s
case.

(Id. at 25–43 (Stauffer); id. at 44–59 (Foster).)

testified also.

(Id. at 60–95.)

Cook

Following this testimony, the

Court held that, under the facts presented, Cook was an “organizer or leader” of the relevant criminal enterprise and that the
§ 3B1.1(a) four-level enhancement was appropriate.

(See, e.g.,

id. at 110–11.)
The Government objected to the PSR’s three-point downward
adjustment

for

acceptance

of

responsibility

acceptance-of-responsibility adjustment.

and

to

any

(Id. at 111–12.)

The

Court decided that Cook had “frivolously denied . . . relevant

7

conduct,” and that, as a result, an acceptance-of-responsibility
adjustment was inappropriate.
141–42.)

(Id. at 114–15; see also id. at

The resulting total offense level was 40.

(Id. at

115.)
The Government then stated that the Court should increase
Cook’s offense level by two levels under U.S.S.G. § 3C1.1, which
addresses obstructing or impeding the administration of justice.
(Id. at 117–18.)

The Government argued that Cook had provided

“materially false information to a judge” during his sentencing
testimony,
118.)

warranting

the

increased

offense

level.

(Id.

at

After colloquy with the parties and review of the testi-

mony, the Court agreed that the two-level enhancement was appropriate.

(Id. at 126; see also id. at 142.)

The resulting total offense level was 42.

(Id. at 127.)

Because Cook’s criminal-history category was I, the resulting
guidelines-sentencing range was 360 months to life imprisonment.
(Id.)

Cook was sentenced to 360 months’ imprisonment.

(Id. at

157–58; J. in Criminal Case 2, ECF No. 807.)
B.

Postconviction Proceedings

On February 22, 2013, Cook filed a Notice of Appeal.
No. 816.)

(ECF

On April 26, 2013, the Sixth Circuit received a let-

ter from Cook stating that he “[had] not seen [his] lawyer since
[Cook] got [his] judgment.”

(Letter from Stephen Cook to U.S.

Court of Appeals for the Sixth Circuit (Apr. 26, 2013), ECF No.

8

7 in 13-5264.)

After that letter, there was no substantive ac-

tivity in the Sixth Circuit until February 2014.
On July 17, 2013, Cook’s counsel filed a Motion to Withdraw
as Counsel in Cook’s criminal case.

(ECF No. 849 in 11-20006.)

On November 6, 2013, Cook filed in his criminal case a motion
asking the Court, inter alia, to permit him to proceed in forma
pauperis.

(Mot. Requesting Permission to Proceed In Forma Pau-

peris and Request for Trs., ECF No. 864 in 11-20006.)

On Febru-

ary 4, 2014, the Court granted Cook’s motion, understanding it
as a request for permission to proceed in forma pauperis on appeal.

(Order Granting Mot. for Leave to Proceed In Forma Pau-

peris on Appeal, ECF No. 868 in 11-20006.)
On February 3, 2014, Cook commenced this action by filing
the First § 2255 Motion.

The motion presents three grounds. 5

Ground 1 is ineffective assistance of counsel.
Mot. 5.)

(First § 2255

Cook’s ineffective-assistance argument states that his

prior counsel (a) “fail[ed] to file an appeal” (“Ground 1(a)”);
(b) failed “to make sufficient arguments at sentencing” (“Ground
1(b)”); and (c) failed “to investigate the facts of the case be-

5

The First § 2255 Motion itself states two grounds.
(First
§ 2255 Motion 5–6.)
The Court understands the Memorandum in
Support of the § 2255 Motion to present a third. (See Mem. ISO
First § 2255 Mot. 4–18.)
The numbering below is the Court’s,
not Cook’s, and is based on the Court’s review of the First
§ 2255 Motion and the Memorandum in Support of the First § 2255
Motion.

9

fore recommending [that Cook] enter a plea of guilty” (“Ground
1(c)”).

(Id.)

Ground 2 is that Cook “was improperly enhanced at sentencing for conduct not [alleged] in [Cook’s] indictment.”

(Id. at

6.)
Ground 3 is that aspects of Cook’s sentence were inappropriate under the U.S. Supreme Court’s decision in Alleyne v.
United States, 133 S. Ct. 2151 (2013).
First § 2255 Mot. 4–18.)

(See generally Mem. ISO

Based on this argument, Cook requests

“(1) removal of his obstruction of justice enhancement, (2) removal of his leadership role enhancement, (3) reinstating his
[three]

point

reduction

for

acceptance

of

responsibility,

(4) removing the [cocaine] amount[] from [his] sentencing equation . . . ,

(5)

allow[ing]

arguments

on

the

validity

of

[Cook’s] plea agreement for a downward departure for his substantial assistance [sic], and [that the Court] (6) sentence”
Cook only for conspiring to possess 1,000 kilograms of marijuana.

(Id. at 18.)
On February 19, 2014, Cook filed in this action a motion to

proceed in forma pauperis.

(Application to Proceed in District

Court without Prepaying Fees or Costs, ECF No. 6.)

The Court

entered an order on February 21, 2014 (the “February 2014 Order”), that, inter alia, granted Cook’s motion and directed the
Government to respond to the First § 2255 Motion.

10

(Order, ECF

No. 7.)

The February 2014 Order also granted a prior motion by

Cook requesting appointment of counsel, ordering that “counsel
be appointed from the Criminal Justice Act panel of attorneys.”
(Id. at 1–2.)
On February 24, 2014, the U.S. Court of Appeals for the
Sixth Circuit filed an order stating that Cook’s counsel before
the Sixth Circuit, Paul J. Springer, had “failed to file the
case opening forms by the required deadline.”
18-2 in 13-5264.)

(Order, ECF No.

The Sixth Circuit ordered Springer to file

the forms within seven days “or new counsel [would] be appointed
for [Cook].”

(Id.)

On February 26, 2014, Springer filed a Mo-

tion to Withdraw with the Sixth Circuit.
5264.)

(ECF No. 19 in 13-

Springer represented that he had been retained “to rep-

resent [Cook] at sentencing,” not on appeal, and that “since
sentencing a conflict of interest ha[d] arisen between [Cook]
and counsel making adequate representation difficult, if not impossible.”

(Id. ¶¶ 2, 5.)

On March 4, 2014, the Sixth Circuit

granted Springer’s Motion to Withdraw and said that new counsel
would be appointed to represent Cook.

(Order, ECF No. 20-2 in

13-5264.)
On March 20, 2014, Lauren Pasley-Ward was appointed as CJA
counsel for Cook in this action.

(CJA-20 Form, ECF No. 10.)

On

March 25, 2014, the Sixth Circuit filed a letter stating that
Dennis Belli had accepted an appointment to represent Cook on

11

his appeal.

(Letter from Ken Loomis, U.S. Court of Appeals for

the Sixth Circuit, to Dennis Belli (Mar. 25, 2014), ECF No. 22
in 13-5264; see also Appearance of Counsel, ECF No. 23 in 135264.)

The Sixth Circuit circulated a briefing schedule on May

1, 2014.

(Letter from Bryant L. Crutcher, U.S. Court of Appeals

for the Sixth Circuit, to Dennis Belli (May 1, 2014), ECF No. 28
in 13-5264.)
Cook filed his opening brief in the Sixth Circuit on July
14, 2014.

(Br. of Def.-Appellant, ECF No. 35 in 13-5264 (“Sixth

Circuit Br.”).)

The brief asserted two issues for review:

I.

Whether the government breached the
plea agreement by a) reneging on its
promise to recommend a reduction for
acceptance of responsibility, b) relying
on
false
testimony
of
a
coconspirator to support its request for
an obstruction of justice enhancement,
and c) negotiating a guilty plea to a
marijuana conspiracy and subsequently
urging the district court to sentence
Cook for a cocaine conspiracy?

II.

Whether Cook’s 360-month prison term is
procedurally unreasonable due to errors
involving the determination of his role
in the offense, obstruction of justice,
acceptance of responsibility, and drug
quantity; and/or substantively unreasonable due to the district court’s unfounded
belief
that
[Cook]
“frivolously” litigated his objection
to the leadership role enhancement?

(Id. at 2; see also id. at 13–25 (argument about first issue);
id. at 25–46 (argument about second issue).)

12

On July 24, 2014, the Government filed a motion with the
Sixth Circuit asking it to dismiss Cook’s appeal based on the
appeal waiver in the Plea Agreement.

(Motion to Dismiss Case ––

Appeal Waiver 1–2, ECF No. 39 in 13-5264 (“Mot. to Dismiss Appeal”);

see

also

Section

I.A

supra

(quoting

Plea

Agreement

¶ 7).)

The next day, the Sixth Circuit’s case manager for the

appeal said in a letter that briefing in the appeal would be
“held in abeyance” until the Motion to Dismiss Appeal was decided.

(Letter from Bryant Crutcher, U.S. Court of Appeals for the

Sixth Circuit, to David Pritchard, U.S. Attorney’s Office (July
25, 2014), ECF No. 40 in 13-5264.)
On July 29, 2014, the Government filed its Response in this
matter.

(See generally Resp. to First § 2255 Mot.)

The Re-

sponse refers to Cook’s then-pending appeal, but does not address the effect of the appeal on the First § 2255 Motion.

(Id.

at 3 n.1.)
On August 4, 2014, Cook filed with the Sixth Circuit a response to the Government’s Motion to Dismiss Appeal.

(Appel-

lant’s Resp. to Appellee’s Mot. to Dismiss, ECF No. 41 in 135264.)

On November 3, 2014, the Sixth Circuit referred the Mo-

tion to Dismiss Appeal to the merits panel handling Cook’s appeal.

(Order, ECF No. 42-2 in 13-5264.)

On November 18, 2014,

the Government filed a response to Cook’s Sixth Circuit Brief.
(Br. for Pl.-Appellee, ECF No. 44 in 13-5264.)

13

On December 14,

2014, Cook filed a reply in support of the Sixth Circuit Brief.
(Reply Br. of Def.-Appellant, ECF No. 47 in 13-5264.)

The Sixth

Circuit heard oral argument on Cook’s appeal on March 4, 2015.
(Minute Entry, ECF No. 51 in 13-5264.)
On April 17, 2015, the Sixth Circuit issued its opinion
granting the Motion to Dismiss Appeal.

United States v. Cook,

607 F. App’x 497, 498 (6th Cir. Apr. 17, 2015).

The Sixth Cir-

cuit characterized Cook’s relevant arguments as (1) that “the
[G]overnment breached the [Plea Agreement] by opposing a reduction for acceptance of responsibility,” and (2) that the Government “violat[ed] the covenant of good faith and fair dealing by
seeking an obstruction of justice enhancement based on immaterial inconsistencies in testimony” and “by urging the district
court to include cocaine in the drug amount calculation.”
at 499.

Id.

The Sixth Circuit held that the Government had not

breached the Plea Agreement when it opposed an acceptance-ofresponsibility reduction.

Id. at 500–05.

It also held that,

under either of Cook’s theories, the Government had not breached
its covenant of good faith and fair dealing.

Id. at 505–08.

Because Cook’s arguments failed, the Sixth Circuit held that the
Plea Agreement’s appeal waiver was enforceable.

Id. at 508.

On June 15, 2015, Cook filed a petition for a writ of certiorari with the U.S. Supreme Court.

(See Letter from Melissa

Blalock, U.S. Supreme Court, Office of the Clerk, to Clerk, U.S.

14

Court of Appeals for the Sixth Circuit (June 18, 2015), ECF No.
54 in 13-5264.)

On October 5, 2015, the U.S. Supreme Court en-

tered an order denying that petition.

(Letter from Scott Har-

ris, U.S. Supreme Court, Office of the Clerk, to Clerk, U.S.
Court of Appeals for the Sixth Circuit (Oct. 5, 2015), ECF No.
59 in 13-5264.)
On February 26, 2016, Cook filed a motion to fire his attorney in this matter, Lauren Pasley-Ward.

(Motion to Fire At-

torney and Proceed Pro Se, ECF No. 12.)
The same day, Cook filed another motion styled a § 2255 motion, together with a supporting memorandum.

(Second § 2255

Mot.; see also Mem. in Supp. of Second § 2255 Mot.)
§ 2255 Motions are very similar.
with Second § 2255 Mot.)

The two

(Compare First § 2255 Mot.

The Second § 2255 Motion is a copy of

the First § 2255 Motion, with additional material typed onto the
original form.

(See, e.g., Second § 2255 Mot. 2 (adding prison-

er number); id. at 5 (adding statements about ineffective assistance); id. at 11 (adding material in response to Questions 13
and 15).)

The memorandum supporting the Second § 2255 Motion is

different than the memorandum supporting the First § 2255 Motion.

(Compare Mem. ISO First § 2255 Mot. with Mem. ISO Second

§ 2255 Mot.)
After reviewing the Second § 2255 Motion, the Court understands it to reassert all the grounds of the First § 2255 Mo-

15

tion.

(See generally Second § 2255 Mot.; Mem. ISO Second § 2255

Mot.)

The Second § 2255 Motion also claims to present an addi-

tional ineffective-assistance argument (“Ground 1(d)”): that his
prior

counsel

“fail[ed]

to

challenge

[a]

faulty

indictment.”

(Second § 2255 Mot. 5; see also Mem. ISO Second § 2255 Mot. 3–
4.)
On September 19, 2016, Lauren Pasley-Ward filed a Motion to
Withdraw as Attorney of Record in this action.

(ECF No. 14.)

The next day, the Court entered an order granting that motion.
(Order Allowing Withdrawal of Counsel, ECF No. 15. 6)
II.

STANDARDS
Cook seeks relief under 28 U.S.C. § 2255.

First § 2255 Mot.; Second § 2255 Mot.)

(See generally

Under § 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 sentence was in excess of the maximum authorized by law . . .
may move the court which imposed the sentence to vacate, set aside or correct the
sentence.
28 U.S.C. § 2255(a).
“To prevail on a motion under § 2255, a [petitioner] must
prove ‘(1) an error of constitutional magnitude; (2) a sentence
imposed outside the statutory limits; or (3) an error of fact or
6

That order mooted Cook’s previously filed motion to fire Pasley-Ward.

16

law that was so fundamental as to render the entire proceeding
invalid.’”

Goward v. United States, 569 F. App’x 408, 412 (6th

Cir. 2014) (quoting McPhearson v. United States, 675 F.3d 553,
559 (6th Cir. 2012)).
A prisoner must file his § 2255 motion within one year of
the latest of:
(1)

the date on which the judgment of conviction becomes final;

(2)

the date on which the impediment to
making a motion created by governmental
action in violation of the Constitution
or laws of the United States is removed, if the movant was prevented from
making a motion by such governmental
action;

(3)

the date on which the right asserted
was initially recognized by the Supreme
Court, if that right has been newly
recognized by the Supreme Court and
made retroactively applicable to cases
on collateral review; or

(4)

the date on which the facts supporting
the claim or claims presented could
have been discovered through the exercise of due diligence.

28 U.S.C. § 2255(f).
After a petitioner files a § 2255 motion, 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 . . . .”

Rules Governing Section 2255 Proceedings for the

U.S. District Courts at Rule 4(b).
17

“If the motion is not dis-

missed, 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 § 2255 movant

is entitled to reply to the government’s response.
5(d).

Id. at Rule

The Court may also direct the parties to provide addi-

tional information relating to the motion.

Id. at Rule 7(a).

If the district judge addressing the § 2255 motion is the same
judge who oversaw the petitioner’s trial, the judge “may rely on
his recollections from trial in deciding” the motion.

Fifer v.

United States, 660 F. App’x 358, 363 (6th Cir. 2016) (citing Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999)).
III. ANALYSIS
A.

Effect of Cook’s Appeal on § 2255 Motion

The

filing

of

Cook’s

First

§

2255

Motion

was

improper.

Cook filed that motion after filing a notice of appeal in his
criminal case.

“[I]n the absence of extraordinary circumstanc-

es, a district court is precluded from considering a § 2255 application

for

direct appeal.”

relief

during

the

pendency

of

the

applicant’s

Capaldi v. Pontesso, 135 F.3d 1122, 1124 (6th

Cir. 1998) (citing cases); 7 see also United States v. Pierce, No.

7

In Starnes v. United States, the Sixth Circuit suggested that
the Capaldi rule may not apply where “a defendant’s conviction
has become final.”
18 F. App’x 288, 291 (6th Cir. 2001).
Starnes stated that, when a convicted defendant petitions for a
writ of certiorari from the U.S. Supreme Court, the defendant’s
conviction becomes final on the date the Supreme Court denies
18

CR 5:14-056-DCR-1, 2016 WL 782393, at *1 (E.D. Ky. Feb. 29,
2016) (quoting Capaldi).

The First § 2255 Motion makes no show-

ing of extraordinary circumstances.
Under Capaldi, the Court could not have addressed the First
§ 2255 Motion during the pendency of Cook’s direct appeal.

In

this case, the Sixth Circuit has now ruled on Cook’s appeal, and
Cook has filed another document styled a § 2255 motion that
raises

the

arguments

presented

in

the

First

§

2255

Motion.

“[W]here a second habeas petition is filed before final adjudication of the initial petition, courts generally construe the
second petition as a motion to amend the first petition.”

Unit-

ed States v. Burlingame, No. 15-cr-20042, 2016 WL 6459588,

at

*1 (E.D. Mich. Oct. 31, 2016) (citing cases); see also, e.g.,
Gregley v. Bradshaw, No. 1:14 CV 50, 2015 WL 1275322, at *3
(N.D. Ohio Mar. 19, 2015) (“While neither the Supreme Court nor
the Court of Appeals for the Sixth Circuit has addressed the issue, other courts have uniformly held that when a second habeas
petition is filed before the adjudication of the initial petition is complete, the district court should construe the second
petition as a motion to amend the first petition, rather than as
a second or successive petition.”).
the petition.
Id. at 292.
Under that rule, Cook’s conviction
became final on October 5, 2015.
When Cook filed the First
§ 2255 Motion on February 3, 2014, his conviction was not yet
final.
The Starnes exception to the Capaldi rule does not apply.

19

The Court will treat the First § 2255 Motion as ripe for
review, and the Second § 2255 Motion, to the limited extent that
it

adds

new

arguments,

as

an

amendment

to

the

First

§ 2255 Motion.
B.

Timeliness

Under § 2255(f)(1), a § 2255 motion is timely if filed
within one year of “the date on which the judgment of conviction
becomes final.”

Cook’s judgment of conviction became final on

the date that the U.S. Supreme Court denied his petition for a
writ of certiorari.
October 5, 2015.

Starnes, 18 F. App’x at 291.

That date was

Cook filed the First § 2255 Motion well before

that, on February 3, 2014.

The First § 2255 Motion is timely.

The Court treats the Second § 2255 Motion as an amendment
to the First § 2255 Motion.

Proposed amendments to a § 2255 mo-

tion must be filed within § 2255(f)’s one-year statute of limitations.

See, e.g., Berry v. United States, No. 214-CV-02070-

STA-CGC, 2017 WL 401269, at *10 (W.D. Tenn. Jan. 30, 2017).
Filed on February 26, 2016, the Second § 2255 Motion was filed
within one year of the date that Cook’s judgment of conviction
became final.
C.

The Second § 2255 Motion is timely.

Collateral-Attack Waiver

In the Response to the First § 2255 Motion, the Government
argues that the Plea Agreement’s collateral-attack waiver bars
the First § 2255 Motion.

(Resp. to First § 2255 Mot. 4–6.)

20

Cook has not replied to that argument in this proceeding.

Cook

and the Government addressed the issue at length, however, before the Sixth Circuit.

(See generally Section I.B supra.)

Paragraph 7 of the Plea Agreement states that Cook “waives
his right to challenge the manner in which [his] sentence was
determined . . . in any collateral attack or future challenge,
including but not limited to a motion brought under [28 U.S.C.
§ 2255].”

In granting the Government’s Motion to Dismiss Ap-

peal, the Sixth Circuit held that the appeal waiver in Paragraph
7 was enforceable.

Because the appeal waiver is enforceable, it

follows that the collateral-attack waiver in Paragraph 7 is enforceable as well.
Cook has waived his right to collaterally attack “the manner in which [his] sentence was determined.”
most of the arguments in the § 2255 Motions.

That undercuts
Ground 1(b) as-

serts that Cook received ineffective assistance of counsel based
on his sentencing counsel’s failure to “make sufficient arguments at sentencing.”
5.)

(First § 2255 Mot. 5; Second § 2255 Mot.

That challenges the manner in which Cook’s sentence was de-

termined.
Ground 1(d) argues that Cook received ineffective assistance because his prior counsel “fail[ed] to challenge a faulty
indictment.”

(Second § 2255 Mot. 5; see also Mem. ISO Second

§ 2255 Mot. 3–4.)

Cook’s view is that, because the original in-

21

dictment (or the superseding indictment) did not refer to cocaine, the

Court

erred

at

sentencing

by

taking

into

Cook’s alleged possession of 30 kilograms of cocaine.

account
(Second

§ 2255 Mot. 6; see also First § Mot. 6 (same wording); Mem. ISO
First § 2255 Mot. 2, 17; Mem. ISO Second § 2255 Mot. 3–4, 7.)
That argument challenges the manner in which Cook was sentenced.
Ground 2 is that Cook “was improperly enhanced at sentencing for conduct not alleged in [Cook’s] indictment.”
§ 2255 Mot. 6; Second § 2255 Mot. 6.)

(First

That argument is essen-

tially identical to Ground 1(d); it challenges the way Cook was
sentenced.
Ground 3 is that various aspects of Cook’s sentence were
inappropriate under Alleyne.

(See Mem. ISO First § 2255 Mot. 4–

18; Mem. ISO Second § 2255 Mot. 8–10.).

That is also a chal-

lenge to Cook’s sentencing.
Grounds 1(b), 1(d), 2, and 3 of the § 2255 Motions are
DENIED.
D.

Ground 1(a)

Ground 1(a) of the § 2255 Motions contends that Cook received ineffective assistance of counsel because his prior counsel failed to file an appeal.
§ 2255 Mot. 5.)

(First § 2255 Mot. 5; Second

When Cook filed the First § 2255 Motion, on

February 3, 2014, it had been almost a year since Cook had filed
the notice of appeal, and he had heard nothing from the Sixth

22

(See Section I.B supra.)

Circuit.

The Sixth Circuit eventually

heard Cook’s appeal, and resolved it before Cook filed the Second § 2255 Motion. 8

Because Cook received appellate review of

his criminal conviction, Ground 1(a) is moot.
Ground 1(a) of the § 2255 Motions is DENIED as moot.
E.

Ground 1(c)

Ground 1(c) of the § 2255 Motions argues that Cook received
ineffective assistance because his sentencing counsel did not
“investigate the facts of the case before recommending” that
Cook enter a guilty plea.
§ 2255 Mot. 5.)

(Second § 2255 Mot. 5; see also First

The Government’s Response to the First § 2255

Motion argues that Cook “does not develop this allegation . . .
other than to make brief references to guidelines enhancements
for a leadership role and obstruction.”

(Resp. to First. § 2255

Mot. 11.)
The Government’s argument is well taken.

Among the First

§ 2255 Motion, the Second § 2255 Motion, and the memoranda in
support of the § 2255 Motions, Cook cites no specific investigative failures.
were.

There has been no showing of what the failures

The Court will not search the record to find applicable

instances.

United States v. Fowler, 819 F.3d 298, 309 (6th Cir.

2016) (“‘Issues adverted to in a perfunctory manner, unaccompa-

8

Ground 1(a) appears to be in the Second § 2255 Motion only because that motion is largely a copy of the First § 2255 Motion.

23

nied

by

waived.

some

effort

at

developed

argumentation,

are

deemed

It is not sufficient for a party to mention a possible

argument in [a] skeletal way, leaving the court to put flesh on
its bones.’”) (quoting El-Moussa v. Holder, 569 F.3d 250, 257
(6th Cir. 2009) (quoting McPherson v. Kelsey, 125 F.3d 989, 995–
96 (6th Cir. 1997)) (alteration in McPherson).
Ground 1(c) of the § 2255 Motions is DENIED.
All of the grounds of the § 2255 Motions are denied.

The

§ 2255 Motions are DENIED.
IV.

APPEAL ISSUES
Under 28 U.S.C. § 2253(a), a district court must evaluate

the appealability of its decision denying a § 2255 motion and
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).

No § 2255 movant may

appeal without this certificate.
The COA must indicate the specific issue or issues that
satisfy the required showing.

Id. § 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 and citation omitted); see also

24

Landers v. Romanowski, No. 15-1753, 2017 WL 395976, at *2 (6th
Cir. Jan. 30, 2017).

A COA does not require a showing that the

appeal will succeed.

Miller-El, 537 U.S. at 337; Caldwell v.

Lewis, 414 F. App’x 809, 814-15 (6th Cir. 2011).
not issue a COA as a matter of course.

Courts should

Bradley v. Birkett, 156

F. App’x 771, 773 (6th Cir. 2005).
In this case, Cook is not entitled to relief.

He cannot

present a question of some substance about which reasonable jurists

could

differ.

The

Court

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,

To appeal in forma pauperis

in a § 2255 case, and avoid the appellate filing fee required by
28 U.S.C. §§ 1913 and 1917, a prisoner must obtain pauper status
pursuant to Federal Rule of Appellate Procedure 24(a).
952.

Id. at

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).

Howev-

er, Rule 24(a) 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, a prisoner

25

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, because Cook is clearly not entitled to relief, the Court denies a COA.

It is CERTIFIED, pursuant to Fed-

eral Rule of Appellate Procedure 24(a), that any appeal in this
matter would not be taken in good faith.

Leave to appeal in

forma pauperis is DENIED. 9
V.

CONCLUSION
The § 2255 Motions are DENIED.
So ordered this 31st day of March, 2017.

/s/ Samuel H. Mays, Jr.
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE

9

If Cook files a notice of appeal, he must also pay the appellate filing fee or file a motion to proceed in forma pauperis
and supporting affidavit in the U.S. Court of Appeals for the
Sixth Circuit within 30 days.

26