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Potts v. United States

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

March 9, 2017




         This 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.


         On 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).


         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. 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. Id.


         A. Ineffective Assistance of Counsel Claims

         Movant 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.

         There 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.

         First, 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.

         Similarly, Movant argues that the Court unconstitutionally increased his sentence based on facts not admitted by him or found by a jury.[1] 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 ...

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