Byrd v. United States of America

Filing 12

ORDER DENYING & DISMISSING 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. Signed by Judge Jon Phipps McCalla on 12/4/2020. (joj)

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

PRESTON BYRD,
Movant,
Cv. No. 2:18-cv-02191-JPM-tmp
Cr. No. 2:16-cr-20029-JPM-01

v.
UNITED STATES OF AMERICA,
Respondent.

ORDER DENYING & DISMISSING 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

Before the Court is the motion pursuant to 28 U.S.C. § 2255 (§ 2255 motion”) filed by
Movant Preston Byrd on March 19, 2018. (ECF No. 1.) On June 4, 2018, the United States filed
a response contending that Defendant’s motion is without merit. (ECF No. 7.) On July 9, 2018,
Byrd filed a reply to the United States’ response. (ECF No. 8.) For the reasons stated below, the
Court DENIES the § 2255 motion.
I.

PROCEDURAL HISTORY
A.

Criminal Case No. 2:16-20029-JPM-01

On February 23, 2016, a federal grand jury in the Western District of Tennessee returned
a single count indictment against Byrd charging him with making a materially false, fictitious, or
fraudulent statement and representation concerning a matter within the jurisdiction of the judicial
branch of the Government of the United States by falsely answering a question on a juror
qualification form, in violation of 18 U.S.C. § 1001(a)(2). (Criminal (“Cr.”) ECF No. 1.) On

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July 6-7, 2016, this Court presided at a jury trial, at which the jury found Byrd guilty as charged.
(Cr. ECF Nos. 35, 37.) The Court conducted a sentencing hearing on October 31, 2016, at which
Byrd was sentenced to eighteen months in prison, with twelve months to run consecutively to the
sentence imposed in Case No. 2:15-cr-20025-01-JPM. (Cr. ECF Nos. 51-52.). On November
11, 2016, Byrd filed a notice of appeal. (Cr. ECF No. 54.) On January 5, 2018, the United
States Court of Appeals for the Sixth Circuit granted Byrd’s motion to voluntarily dismiss the
appeal. United States v. Byrd, No. 16-6665 (6th Cir. Jan. 5, 2018). (Cr. ECF No. 64.)
B.

Civil Case Number 18-2191-JPM-tmp

On March 19, 2018, Movant filed the § 2255 motion alleging ineffective assistance of
counsel by failing to introduce admissible evidence of Byrd’s prior actual sentence of
incarceration where that fact was material to the issue being tried in Byrd’s case. (See ECF No.
1 at 4.)
II.

LEGAL STANDARDS
Pursuant to 28 U.S.C. § 2255(a),
[a] prisoner in custody under sentence of a court established by Act of Congress claiming
the right to be released upon the ground that the sentence was imposed in violation of the
Constitution or laws of the United States, or that the court was without jurisdiction to
impose such sentence, or that the sentence was in excess of the maximum authorized by
law, or is otherwise subject to collateral attack, may move the court which imposed the
sentence to vacate, set aside or correct the sentence.

“A prisoner seeking relief under 28 U.S.C. § 2255 must allege either: (1) an error of
constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of
fact or law that was so fundamental as to render the entire proceeding invalid.” Short v. United
States, 471 F.3d 686, 691 (6th Cir. 2006) (citation and internal quotation marks omitted).

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A § 2255 motion is not a substitute for a direct appeal. See Bousley v. United States, 523
U.S. 614, 621 (1998). “[N]onconstitutional claims that could have been raised on appeal, but
were not, may not be asserted in collateral proceedings.” Stone v. Powell, 428 U.S. 465, 477
n.10 (1976). “Defendants must assert their claims in the ordinary course of trial and direct
appeal.” Grant v. United States, 72 F.3d 503, 506 (6th Cir. 1996). This rule is not absolute:
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, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). In those rare instances where the
defaulted claim is of an error not ordinarily cognizable or constitutional error, but the
error is committed in a context that is so positively outrageous as to indicate a “complete
miscarriage of justice,” it seems to us that what is really being asserted is a violation of
due process.
Grant, 72 F.3d at 506.
Even constitutional claims that could have been raised on direct appeal, but were not, will
be barred by procedural default unless the defendant demonstrates cause and prejudice sufficient
to excuse his failure to raise these issues previously. El-Nobani v. United States, 287 F.3d 417,
420 (6th Cir. 2002) (withdrawal of guilty plea); Peveler v. United States, 269 F.3d 693, 698-99
(6th Cir. 2001) (new Supreme Court decision issued during pendency of direct appeal); Phillip v.
United States, 229 F.3d 550, 552 (6th Cir. 2000) (trial errors). Alternatively, a defendant may
obtain review of a procedurally defaulted claim by demonstrating his “actual innocence."
Bousley, 523 U.S. at 622.
After a § 2255 motion is filed, it is reviewed by the Court and, “[i]f it plainly appears
from the motion, any attached exhibits, and the record of prior proceedings that the moving party
is not entitled to relief, the judge must dismiss the motion . . . .” Rule 4(b), Rules Governing
Section 2255 Proceedings for the United States District Courts (“Section 2255 Rules”). “If the
motion is not dismissed, the judge must order the United States attorney to file an answer,
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motion, or other response within a fixed time, or to take other action the judge may order.” Id.
The movant is entitled to reply to the Government’s response. Rule 5(d), Section 2255 Rules.
The Court may also direct the parties to provide additional information relating to the motion.
Rule 7, Section 2255 Rules.
“In reviewing a § 2255 motion in which a factual dispute arises, ‘the habeas court must
hold an evidentiary hearing to determine the truth of the petitioner’s claims.’” Valentine v.
United States, 488 F.3d 325, 333 (6th Cir. 2007) (quoting Turner v. United States, 183 F.3d 474,
477 (6th Cir. 1999)). ‘“[N]o hearing is required if the petitioner’s allegations cannot be accepted
as true because they are contradicted by the record, inherently incredible, or conclusions rather
than statements of fact.’” Id. (quoting Arredondo v. United States, 178 F.3d 778, 782 (6th Cir.
1999)). Where the judge considering the § 2255 motion also presided over the criminal case, the
judge may rely on his or her recollection of the prior case. Blanton v. United States, 94 F.3d 227,
235 (6th Cir. 1996); see also Blackledge v. Allison, 431 U.S. 63, 74 n.4 (1977) (“[A] 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 . . . .”). 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).
A claim that ineffective assistance of counsel has deprived a defendant of his Sixth
Amendment right to counsel is controlled by the standards stated in Strickland v. Washington,
466 U.S. 668 (1984). To demonstrate deficient performance by counsel, a petitioner must
demonstrate that “counsel’s representation fell below an objective standard of reasonableness.”
Id. at 688.
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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.”
Strickland, 466 U.S. at 694. 1 “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, 104 S. Ct. 2052.
Counsel’s errors must be “so serious as to deprive the defendant of a fair trial, a
trial whose result is reliable.” Id., at 687, 104 S. Ct. 2052.
Richter, 562 U.S. at 104; see also id. at 111-12 (“In assessing prejudice under Strickland, the
question is not whether a court can be certain counsel’s performance had no effect on the
outcome or whether it is possible a reasonable doubt might have been established if counsel
acted differently. . . . The likelihood of a different result must be substantial, not just
conceivable.” (citations omitted)); Wong v. Belmontes, 558 U.S. 15, 27 (2009) (per curiam)
(“But Strickland does not require the State to ‘rule out’ [a more favorable outcome] to prevail.
Rather, Strickland places the burden on the defendant, not the State, to show a ‘reasonable
probability’ that the result would have been different.” (citing Strickland, 466 U.S. at 694)).

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“[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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“Surmounting Strickland’s high bar is never an easy task.” Padilla v. Kentucky, 559 U.S.
356, 371 (2010).
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, lest “intrusive post-trial inquiry” threaten
the integrity of the very adversary process the right to counsel is meant to serve.
Strickland, 466 U.S., at 689-690, 104 S. Ct. 2052. Even under de novo review,
the standard for judging counsel's representation is a most deferential one. Unlike
a later reviewing court, the attorney observed the relevant proceedings, knew of
materials outside the record, and interacted with the client, with opposing counsel,
and with the judge. It is “all too tempting” to “second-guess counsel's assistance
after conviction or adverse sentence.” Id., at 689, 104 S. Ct. 2052; see also Bell v.
Cone, 535 U.S. 685, 702, 122 S. Ct. 1843, 152 L. Ed. 2d 914 (2002); Lockhart v.
Fretwell, 506 U.S. 364, 372, 113 S. Ct. 838, 122 L. Ed. 2d 180 (1993). The
question is whether an attorney’s representation amounted to incompetence under
“prevailing professional norms,” not whether it deviated from best practices or
most common custom. Strickland, 466 U.S., at 690, 104 S. Ct. 2052.
Richter, 562 U.S. at 105.
III.

ANALYSIS
Byrd alleges:
I received the ineffective assistance of counsel at my trial where my
defense attorney failed to assert my right to introduce admissible evidence of my
prior actual sentence of incarceration where that fact was material to the issue
being tried in my case. My prior actual sentence was less than one year. I told
my attorney that I answered the jury questionnaire incorrectly because I thought
the actual sentence was what controlled, not the maximum statutory penalty. The
false statement was made in error out of ignorance and was not intentional fraud.
My attorney failed to present my defense when he agreed to a redacted copy of
my prior judgment.

(ECF No. 1 at 4.) The United States replies that Byrd’s counsel was not ineffective and has
attached the affidavit of Byrd’s trial attorney, James Jones, Jr. as an exhibit to the Answer. (ECF
Nos. 7, 7-1.)
The judgment of Byrd’s 2003 North Dakota conviction for wire fraud was redacted to
remove any reference to the sentence imposed pursuant to this Court’s determination that the
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previous sentence was not relevant to any issue in the case. (Cr. ECF No. 62 at 286-90.) The
previous punishment should not be considered “at any time” “in any way” because of the
possibility of jury confusion.

(Id.)

The prosecution and defense counsel agreed that the

punishment imposed in the North Dakota case was not relevant. (Id.) Attorney Jones attests that
he “explained to Mr. Byrd that it was not the actual time served which controlled, but the type of
charge for which he was convicted” and “explained that if the conviction was for a felony where
the sentence could be more than one year, then it was a felony regardless of the amount of time
actually served.” (ECF No. 7-1 at 2, ¶ 5.)
“Broad discretion is given to district courts in determinations of admissibility based on
considerations of relevance and prejudice, and those decisions will not be lightly overturned.”
United States v. Bell, 516 F.3d 432, 440 (6th Cir. 2008) (quoting United States v. Chambers, 441
F.3d 438, 455 (6th Cir. 2006)). Byrd presents no argument that defense counsel could or should
have made that would have changed this Court’s determination. Counsel does not perform
deficiently by failing to object where there is no good faith basis to support the objection.
Counsel does not provide ineffective assistance by failing to raise frivolous issues or objections.
Byrd has failed to demonstrate that counsel’s performance was deficient.
The § 2255 motion is without merit and it is DENIED.
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). Movant’s conviction and sentence are
valid and, therefore, his motion is DENIED. Judgment shall be entered for the United States.

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V.

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APPELLATE ISSUES
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.” 28 U.S.C. § 2253(c)(2); see also Fed. R. App. P. 22(b). No § 2255 movant may appeal
without this certificate. The COA must 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 and internal quotation marks omitted); see also Henley v. Bell, 308 F.
App’x 989, 990 (6th Cir. 2009) (per curiam) (same). 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). Courts should not issue a COA as a matter of course. Bradley v. Birkett, 156 F.
App’x 771, 773 (6th Cir. 2005) (quoting Miller-El, 537 U.S. at 337). In this case, for the reasons
previously stated, Movant’s claim lacks substantive merit and, therefore, he cannot present a
question of some substance about which reasonable jurists could differ. The Court therefore
DENIES a certificate of appealability.
The Sixth Circuit has held that the Prison Litigation Reform Act of 1995, 28 U.S.C.
§ 1915(a)-(b), does not apply to appeals of orders denying § 2255 motions.

Kincade v.

Sparkman, 117 F.3d 949, 951 (6th Cir. 1997). Rather, to appeal in forma pauperis in a § 2255
case, and thereby avoid the appellate filing fee required by 28 U.S.C. §§ 1913 and 1917, the
prisoner must obtain pauper status pursuant to Fed. R. App. P. 24(a). Kincade, 117 F.3d at 952.
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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 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,
and leave to appeal in forma pauperis is DENIED. If Movant 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 Sixth Circuit Court of Appeals within
thirty (30) days (see Fed. R. App. P. 24(a) (4)-(5)).
SO ORDERED, this 4th day of December, 2020.
/s/ Jon P. McCalla
JON P. McCALLA
UNITED STATES DISTRICT JUDGE

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