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Terry v. United States

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

April 13, 2017

Derrick Terry, Petitioner,
v.
United States of America, Respondent. Civil No. 16-11574

          OPINION & ORDER DENYING § 2255 MOTION AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY

          Sean F. Cox United States District Court Judge

         In Criminal Case Number 11-20752, Defendant/Petitioner Derrick Terry (“Terry”) pleaded guilty, pursuant to a Rule 11 agreement, to one count of conspiracy to possess with intent to distribute and to distribute marijuana, cocaine, and cocaine base. This Court sentenced him to 220 months of imprisonment. Terry's conviction was affirmed on direct appeal. The matter is now before the Court on Terry's pro se Motion to Vacate Sentence, brought pursuant to 28 U.S.C. § 2255. Because the files and records of the case conclusively show that Terry is entitled to no relief as to the claims in this § 2255 motion, an evidentiary hearing is not necessary and the matter is ripe for a decision by this Court. For the reasons set forth below, the Court denies the motion and declines to issue a certificate of appealability.

         BACKGROUND

         Terry was one of several defendants indicted in this drug conspiracy case. Terry was represented by appointed counsel, Lawrence Bunting.

         On April 3, 2013, Terry pleaded guilty, pursuant to a Rule 11 Plea Agreement, to Count One of the Indictment, which charged “a violation of 21 U.S.C. §§ 841(a)(1) and § 846, conspiracy to distribute and to possess with intent to distribute controlled substances.” (Rule 11 Plea Agreement, D.E. No. 384, at Pg ID 1929).

         Terry's Rule 11 Plea Agreement provided that either party could withdraw from the agreement if the Court were to decide not to accept the parties' agreed sentence. (Id. at Pg ID 1932). It also contained an appellate-waiver provision that stated as follows:

6. WAIVER OF APPEAL
Defendant waives any right he may have to appeal his conviction. If the sentence imposed does not exceed the maximum allowed by Part 3 of this agreement, defendant also waives any right he may have to appeal his sentence. If the sentence imposes is within the guideline range determined by Paragraph 2B the government agrees not to appeal the sentence, but retains its right to appeal any sentence below that range.

(Id. at Pg ID 1933).

         In the Rule 11 Plea Agreement, the parties agreed that the applicable guidelines range was 235-293 months. (Id. at Pg ID 1930). But, pursuant to Fed. R. Crim. Pro. 11(c)(1)(C), Terry and the Government agreed to a specific sentencing range of 216 to 240 months imprisonment. (Id. at Pg ID 1931).

         The Judgment (D.E. No. 456), issued on October 9, 2013, reflects that Terry pleaded guilty to Count 1 of the Indictment, which charged Conspiracy to possess with intent to distribute and to distribute marijuana, cocaine and cocaine base, in violation of 21 U.S.C. § 841(a)(1) and 846. Any remaining counts were dismissed. This Court sentenced Terry to a total term of imprisonment of 220 months. Thus, this Court sentenced Terry within the range specified in his Rule 11 Plea Agreement. The sentence imposed was just four months over the agreed upon minimum sentence.

         Represented by new counsel, Terry filed a direct appeal challenging his conviction. The Sixth Circuit affirmed. United States v. Terry, 613 F. App'x 540 (6th Cir. 2015). In his direct appeal, Terry did not challenge his sentence. Id. at 542 (noting that Terry “has not challenged his sentence.”). In challenging his conviction, Terry argued that “his guilty plea was not knowing and voluntary because the district court failed to comply with Federal Rule of Criminal Procedure 11.” Id. at 541. The Sixth Circuit rejected that argument and affirmed.

         On May 2, 2016, Terry filed a pro se motion seeking relief under 28 U.S.C. § 2255. Terry also filed a brief in support of his motion.

         The Government opposes Terry's Petition, asserting that it should be denied for multiple reasons. Terry filed a reply brief. Thus, the motion has been fully briefed by the parties.

         On November 16, 2016, on an unrelated motion, this Court issued an “Order Regarding Motion For Sentence Reduction Pursuant to 18 U.S.C. § 3582(c)(2)” wherein this Court reduced Terry's sentence from 220 months to 176 months of imprisonment. (D.E. No. 638).

         STANDARD OF REVIEW

         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 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 has 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). A movant 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).

         Defendants seeking to set aside their sentences pursuant to 28 U.S.C. section 2255 have the burden of establishing their case by a preponderance of the evidence. McQueen v. U.S., 58 F. App'x 73, 76 (6th Cir. 2003). It is well established that when a defendant files a section 2255 motion, he or she must set forth facts establishing entitlement to relief. Green v. Wingo, 454 F.2d 52, 53 (6th Cir. 1972); O'Malley v. United States, 285 F.2d 733, 735 (6th Cir. 1961). “Conclusions, not substantiated by allegations of fact with some probability of verity, are not sufficient to warrant a hearing.” Green, 454 F.2d at 53; O'Malley, 285 F.2d at 735 (citations omitted). Moreover, no hearing is required where the petitioner's allegations cannot be accepted as true because they are contradicted by the record or are inherently incredible. Ewing v. United States, 651 F. App'x 405, 409 (6th Cir. 2016). Where, as here, the judge considering the § 2255 motion also conducted the proceedings below, the judge may rely on his recollections of those proceedings. Id.

         Because the files and records of the case conclusively show that Terry is entitled to no relief as to the claims in his § 2255 motion, an evidentiary hearing is not necessary and the matter is ripe for a decision by this Court.

         ANALYSIS

         In his pending motion, Terry asserts that his counsel, both trial and appellate counsel, provided ineffective assistance to him.

         Terry asserts that the ineffective assistance of his trial counsel led to Terry entering a guilty plea that was not knowing and voluntary. As an initial matter, the Court notes that the Sixth Circuit has already considered and rejected, on direct appeal, a similar argument. See United States v. Terry, 613 F. App'x at 541-42.

         In support of his current argument that his plea was not knowingly and voluntarily made, Terry now argues that his counsel failed to advise him of the sentencing consequences of his plea. (D.E. No. 614 at Pg ID 3065-66).

         As the Government notes in its response, regardless of what Terry's counsel told him, Terry was sufficiently advised by this Court during the plea hearing about the sentencing consequences of pleading guilty, as the record establishes:

THE COURT: Okay. Sir, could you raise your right hand? Do you affirm the testimony you're about to give will be the truth, the ...

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