The opinion of the court was delivered by: Honorable Avern Cohn
MEMORANDUM AND ORDER DENYING MOTION TO VACATE SENTENCE UNDER 28 U.S.C. §2255 AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY
This is a pro se motion to vacate sentence under 28 U.S.C. § 2255. Petitioner, Terry Lee Flenory, contends that the 360 month sentence imposed on him following his guilty plea to continuing criminal enterprise, in violation of 21 U.S.C. § 848, and conspiracy to launder money instructions, in violation of 18 U.S.C. § 1956(h), was in violation of his constitutional rights. Specifically, Flenory contends that he was deprived of his Sixth Amendment right to counsel at the trial and appellate level and that the Supreme Court's decision in United States v. Santos, 128 S.Ct. 2020 (2008), holding that "proceeds" as used in the money laundering statute means "net profits" rather than "receipts" of an illegal enterprise, entitles him to relief.*fn1 For the reasons that follow, the motion will be denied.
In 2005, Flenory was named in nine counts of a ten-count indictment for his role in a large cocaine distribution ring. Ultimately, Flenory pleaded guilty under a written Fed. R. Crim. P. 11(c)(1)(C) plea agreement to two counts, noted above. The plea agreement specified a guidelines range of 360 months to life. A probation officer prepared a presentence report, recommending a 360 month sentence, to which Flenory filed no objections. Flenory's trial counsel did, however, file a sentencing memorandum, urging a sentence below the guidelines range. Following a sentencing hearing, the Court sentenced Flenory to a cumulative term of 360 months of custody, to be followed by five years of supervised release. Flenory filed a timely notice of appeal. On appeal, Flenory's appellate counsel argued that his plea was not in compliance with Rule 11.*fn2
Flenory presented a pro se argument, contending that the decision in Santos regarding the money laundering statute warrants relief. The Court of Appeals for the Sixth Circuit affirmed Flenory's conviction and sentence because (1) Flenory waived his right to appeal and (2) an independent review of the record reflected no basis for appeal. United States v. Flenory, 08-2230 (6th Cir. June 17, 2009). The Supreme Court denied certiorari, Flenory v. United States, 130 S.Ct. 1928 (Mar. 22, 2010). Flenory then filed the instant motion under § 2255.
III. Section 28 U.S.C. § 2255
Title 28 U.S.C. § 2255 provides:
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, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence."
To prevail under § 2255, petitioner must show a "fundamental defect which inherently results in a complete miscarriage of justice." United States v. Timmreck, 441 U.S. 780, 783 (1979) (quoting, Hill v. United States, 368 U.S. 424, 428 (1962)). "A § 2255 motion may not be used to relitigate an issue that was raised on appeal absent highly exceptional circumstances." DuPont v. United States, 76 F.3d 108, 110 (6th Cir. 1996) (citations omitted)).
IV. Ineffective Assistance of Counsel
In order to succeed on a claim of ineffective assistance of counsel, Flenory must show (1) that his counsel's performance was constitutionally deficient in that the performance "fell below an objective standard of reasonableness under prevailing professional norms" and (2) that he was prejudiced by his counsel's errors. Magana v. Hofbauer, 263 F.3d 542, 547 (6th Cir. 2001) (citing Strickland v. Washington, 466 U.S. 668, 687-88 (1984)). In order to establish prejudice, Flenory must demonstrate that "there is 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. "The Strickland analysis also applies to ...