United States District Court, W.D. Michigan, Southern Division
J. QUIST UNITED STATES DISTRICT JUDGE
matter comes before the Court on Movant James Potts'
motion to vacate, set aside or correct sentence pursuant to
28 U.S.C. § 2255 (ECF No. 1), motion for leave to
proceed in forma pauperis (ECF No. 2), and motion
for an evidentiary hearing (ECF No. 11). On October 16, 2015,
the Government filed a response in opposition. (ECF No. 16.)
On November 18, 2015, Movant filed a reply. (ECF No. 19.) The
Court has reviewed the merits of his claims. For the reasons
that follow, these motions are denied.
February 8, 2013, a grand jury indicted Movant on charges of
engaging in a racketeering conspiracy, large-scale
distribution of cocaine and marijuana, possession with intent
to distribute the same, and aiding and abetting the same, in
violation of 21 U.S.C. §§ 841(a), 846, and 18
U.S.C. § 2. Along with Count 1 were special sentencing
allegations, alleging that Movant aided and abetted the
commission of an assault with intent to commit murder of
Devin Ruff, in violation of Michigan law and 18 U.S.C. §
1959(a). On September 26, 2013, Movant signed a plea
agreement, and on October 8, 2013, Movant pleaded guilty to
Count 1 of the fourth superseding indictment. Movant's
counsel filed a notice of appeal on February 23, 2014 (ECF
No. 935), but Movant signed a letter on April 24, 2014,
requesting permission to withdraw his appeal because he did
not wish to proceed (ECF No. 12-1, PageID.93).
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
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)).
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.
An ineffective assistance of counsel claim may be raised in a
collateral proceeding under § 2255, whether or not the
petitioner could have raised the claim on direct appeal.
Ineffective Assistance of Counsel Claims
raises several claims of ineffective assistance of counsel in
his § 2255 motion. In his reply brief, Movant asks the
Court to disregard his allegations relating to counsel's
failure to pursue an appeal. (ECF No. 19, PageID.168.) Movant
argues that, for his remaining claims, counsel failed to
object during the sentencing hearing, failed to review all of
the factual and legal mitigation evidence in anticipation of
sentence, and failed to properly address the Court regarding
Movant's prior state-court conviction, which resulted in
Movant receiving an extra 12 months on his sentence.
is a two-prong test to evaluate claims of ineffective
assistance of counsel. Strickland v. Washington, 466
U.S. 668, 687-88 (1984). A defendant must prove that (1)
counsel's performance fell below an objective standard of
reasonableness; and (2) counsel's deficient performance
prejudiced the defendant resulting in an unreliable or
fundamentally unfair outcome. Id. A court
considering a claim of ineffective assistance must
“indulge a strong presumption that counsel's
conduct falls within a wide range of professional
assistance.” Id. at 689. This two-part test
applies to guilty plea challenges based on ineffective
assistance of counsel. “In the context of guilty pleas,
the first half of the Strickland v. Washington test
is nothing more than a restatement of the standard of
attorney competence[.]” Hill v. Lockhart, 474
U.S. 52, 58 (1985). “The second, or
‘prejudice' requirement, on the other hand, focuses
on whether counsel's constitutionally ineffective
performance affected the outcome of the plea process.”
Id. “In other words, in order to satisfy the
‘prejudice' requirement, the defendant must show
that there is a reasonable probability that, but for
counsel's errors, he would not have pleaded guilty and
would have insisted on going to trial.” Id.
Movant bears the burden of proof for each prong, and the
Court may dismiss a claim of ineffective assistance if he
fails to carry his burden of proof on either element.
Strickland, 466 U.S. at 687, 697.
Movant raises an ineffective assistance of counsel claim for
counsel's failure to dispute sentencing factors,
including not objecting to the Government's failure to
disclose the probation officer's statement that Movant
neither brandished a weapon nor assaulted the victim with a
weapon and not objecting to double jeopardy. Although counsel
did not object to the Government's lack of disclosure of
the probation officer's statement, counsel filed an
objection to the application of the dangerous-weapon
enhancement (United States v. Potts, No.
1:12-cr-132, ECF No. 925) and argued such at the sentencing
hearing (id. at ECF No. 937, PageID.7770-76). Even
the Government admitted that Movant did not possess the
weapon, but argued that the enhancement should apply because
Movant took part in a gang-sanctioned assault where a weapon
was used. (United States v. Potts, No. 1:12-cr-132,
ECF No. 937, PageID.7773.) The Court was aware that Movant
did not brandish a weapon or use a weapon during the assault.
It considered that fact, but applied the enhancement because
Movant was involved in a gang and had reason to know that
there would be a weapon involved in the assault.
(Id. at PageID.7778-79.) As such, Movant has not
shown deficient performance because his attorney objected to
the enhancement and argued the fact that Movant did not have
a weapon to the Court. Counsel made the underlying
substantive argument, he just did not introduce the probation
officer's statement while doing so. Further, Movant has
not shown prejudice because the Court already considered this
fact when determining whether to apply the enhancement. Thus,
the probation officer's statement would not have changed
the Court's application of the enhancement.
Movant argues that the Court unconstitutionally increased his
sentence based on facts not admitted by him or found by a
jury. A defendant's Sixth Amendment rights
are not violated when a court increases his guideline range
by finding facts that were not found by a jury. See
United States v. Booker, 543 U.S. 220, 245-26 (2005);
United States v. Smith, 749 F.3d 465, 487 (6th Cir.
2014); United States v. Lawrence, 308 F.3d 623, 634
(6th Cir. 2002) (“Apprendi [v. New
Jersey, 530 U.S. 466 (2000)] by its terms applies only
where the finding ‘increases the penalty for a crime
beyond the prescribed statutory maximum' 530
U.S. at 490 (emphasis added), and we have squarely held that
Apprendi does not apply to the Guidelines.”)
(citing United States v. Garcia, 252 F.3d 838, 843
(6th Cir. 2001)). During the sentencing hearing, the Court
found facts that changed Movant's advisory guideline
range, but it did not change the statutory maximum nor was
there a mandatory minimum present. The Court did not
unconstitutionally increase Movant's sentence. Therefore,
counsel did not provide deficient ...