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Nunley v. United States

United States District Court, W.D. Michigan, Southern Division

January 26, 2017




         This matter comes before the Court on Movant's motion to vacate, set aside or correct sentence under 28 U.S.C. § 2255. (ECF No. 1.) The Government has filed an affidavit of trial counsel (ECF No. 10) and a response in opposition (ECF No. 15). Movant has filed a response to counsel's affidavit (ECF No. 12) and a reply (ECF No. 13). For the reasons that follow, Movant's § 2255 motion is denied.


         On August 22, 2013, a grand jury indicted Movant on conspiracy to transport stolen motor vehicles in interstate commerce, in violation of 18 U.S.C. § 2312; to possess and sell stolen motor vehicles, in violation of 18 U.S.C. § 2313; to transport stolen goods having a value of $5, 000 or more in interstate commerce, in violation of 18 U.S.C. § 2314; to possess and sell stolen property, in violation of 18 U.S.C. § 2315; to tamper with motor vehicle identification numbers, in violation of 18 U.S.C. § 511(a)(1); to utter and possess counterfeited State securities, in violation of 18 U.S.C. § 513; and making a false statement to a federal agent, in violation of 18 U.S.C. § 1001(a)(2). (United States v. Nunley, No. 1:13-cr-158 at ECF No. 2.) A superseding indictment added a count of conspiracy to launder money, in violation of 18 U.S.C. §§ 1956, 1957. (Id. at ECF No. 16, PageID.105.) On January 14, 2014, Movant pleaded guilty to all counts of the superseding indictment. (Id. at ECF No. 39.) There was no plea agreement. On June 13, 2014, the Court sentenced Movant to 188 months. (Id. at ECF No. 55, PageID.449.) A week later, the Court entered an amended judgment to fix a clerical error on the restitution amount. (Id. at ECF No. 59.)

         On July 1, 2014, Movant filed a notice of appeal. (Id. at ECF No. 58.) On appeal, Movant argued that the Court failed to grant a downward departure for an overrepresented criminal history score, relied on improper sentencing factors, and failed to address Movant's need for rehabilitative services. (Id. at ECF No. 62.) On August 7, 2015, the Sixth Circuit rejected Movant's arguments and affirmed the Court's sentence. (Id.) Movant did not file a petition for certiorari with the United States Supreme Court.

         On August 24, 2015, the Government filed a motion for reduction of sentence under Federal Rule of Criminal Procedure 35(b), based on Movant's testimony against his co-conspirator. On October 15, 2015, the Court granted the motion and reduced Movant's sentence to 170 months. (Id. at ECF No. 67.) On July 28, 2016, Movant timely filed this § 2255 motion, raising claims of ineffective assistance of counsel and a sentencing error. (ECF No. 1.) Movant claims that his trial counsel was ineffective by failing to require the Court to inform him of the essential elements of the crimes charged at the time of his guilty plea; failing to move to dismiss counts 5, 6, and 7 of the superseding indictment; and failing to challenge inaccurate information in the presentence report. (ECF No. 1, PageID.6, 10, 13.)


         A prisoner who moves to vacate his sentence under § 2255 must show that the sentence was imposed in violation of the Constitution or laws of the United States, that the court was without jurisdiction to impose such a sentence, that the sentence was in excess of the maximum authorized by law, or that it is otherwise subject to collateral attack. 28 U.S.C. § 2255. To prevail on a § 2255 motion “‘a petitioner must demonstrate the existence of an error of constitutional magnitude which had a substantial and injurious effect or influence on the guilty plea or the jury's verdict.'” Humphress v. United States, 398 F.3d 855, 858 (6th Cir. 2005) (quoting Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003)).

         Non-constitutional errors are generally outside the scope of § 2255 relief. United States v. Cofield, 233 F.3d 405, 407 (6th Cir. 2000). A petitioner can prevail on a § 2255 motion alleging non-constitutional error only by establishing a “fundamental defect which inherently results in a complete miscarriage of justice, or, an error so egregious that it amounts to a violation of due process.” Watson v. United States, 165 F.3d 486, 488 (6th Cir. 1999) (quoting United States v. Ferguson, 918 F.2d 627, 630 (6th Cir. 1990) (internal quotations omitted)).

         As a general rule, claims not raised on direct appeal are procedurally defaulted and may not be raised on collateral review unless the petitioner shows either (1) “cause” and “actual prejudice” or (2) “actual innocence.” Massaro v. United States, 538 U.S. 500, 504 (2003); Bousley v. United States, 523 U.S. 614, 621-22 (1998); United States v. Frady, 456 U.S. 152, 167-68 (1982). An ineffective assistance of counsel claim, however, is not subject to the procedural default rule. Massaro, 538 U.S. at 504. Thus, it may be raised in a collateral proceeding under § 2255, whether or not Movant could have raised the claim on direct appeal. Id.


         A. Actual Innocence and Ineffective Assistance of Counsel

         Movant asserts that he is actually innocent. To succeed on such a claim, Movant must show that “it is more likely than not that no reasonable juror would have convicted him in light of the new evidence.” Schlup v. Delo, 513 U.S. 298, 328 (1995). Movant argues that the “factual claim of actual innocence is that he Petitioner pled based on counsel's advice to a conduct that is not a crime.” (ECF No. 1, PageID.12.) Because Movant's actual innocence argument rests on his ineffective assistance of counsel claims, the Court will evaluate these claims together.

         Movant also argues that he had ineffective assistance of trial counsel. To succeed on this claim, Movant must establish that (1) trial counsel's performance fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 694 (1984). A reasonable probability is one that is “sufficient to undermine confidence in the outcome.” Id. Movant bears the burden of proof for each prong, and the Court may dismiss a claim of ineffective assistance of counsel if he fails to carry his burden of proof on either one. Id. at 687, 697. When evaluating the Strickland prongs, the Court must afford “tremendous deference to trial counsel's decisions.” Campbell v. Coyle, 260 F.3d 531, 551 (6th Cir. 2001). There is a strong presumption that counsel's conduct fell within the wide range of reasonable ...

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