United States District Court, W.D. Michigan, Northern Division
ROBERT J. JONKER, Judge
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.) On June 30, 2017, the Government filed a
response in opposition. (ECF No. 12.) The Court has reviewed
the § 2255 motion and finds that oral argument is
unnecessary. The motion fails substantively.
2010, Kobasic was charged with conspiracy to distribute and
possess with intent to distribute marijuana. (United
States v. Kobasic, No. 2:10-cr-20 W.D. Mich., ECF No.
34.) He agreed to plead guilty, but absconded and fled to
Mexico before his change-of-plea hearing on April 20, 2011.
(Id. at ECF No. 131.) In 2014, Kobasic was arrested
and brought back to the United States. He pleaded guilty
pursuant to a plea agreement, and the Court sentenced him to
87 months in prison. (Id. at ECF No. 238.)
alleges several claims of ineffective assistance of counsel
against his attorney, Sarah Henderson. He argues the
following: (1) counsel failed to conduct an adequate
investigation; (2) counsel failed at each stage to challenge
the Government's actions; (3) counsel failed to (a) form
a working relationship with him, (b) interview him, (c)
communicate with him regarding the evidence against him, (d)
determine mitigating circumstances and potential witnesses,
(e) file meaningful pre-trial motions, and (f) object; (4)
counsel failed to file a motion to dismiss based on the
statute of limitations; (5) counsel failed to investigate
Kobasic's background in preparation for sentencing; (6)
counsel failed to file a motion of appeal when instructed to
do so; (7) the Court failed to require the government to
state a factual basis of guilt, and counsel was ineffective
for allowing this to happen; (8) counsel did not adequately
prepare Kobasic for his presentence report interview; (9)
counsel did not know how to calculate the Guidelines range;
and (10) counsel should have entered into a plea agreement
under Federal Rule of Criminal Procedure 11(c)(1)(C) because
that would have ensured credit for acceptance of
responsibility. (ECF No. 1-1; PageID.19-28; ECF No. 12,
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.
succeed on an ineffective-assistance-of-counsel claim, Movant
must establish the following: (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 professional assistance, the purpose of which is
“to protect lawyers from having strategic decisions
judged with ‘the distorting effect of
hindsight.'” Boria v. Keane, 99 F.3d 492,
498 (6th Cir. 1996) (quoting Strickland, 466 U.S. at
689). The Strickland test applies to guilty plea
challenges based on ineffective assistance of counsel.
Hill v. Lockhart, 474 U.S. 52, 58 (1985). In the
context of guilty pleas, the first prong of
Strickland remains the same, and 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. at 58-59. “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.”
Failure to conduct an adequate investigation
alleges that counsel failed to conduct an adequate
investigation, which is “[a]t the heart of an effective
defense[.]” (ECF No. 1-1, PageID.19.) He alleges that
counsel was not prepared, did not conduct a basic
investigation of the facts or interview a single witness, and
was not prepared to properly advise him. (Id.)
Kobasic cites United States v. DeCoster, 487 F.2d
1197 (D.C. Cir. 1973) (“DeCoster I”),
but he does not include any specific allegations against
DeCoster I, the D.C. Circuit opined that defense
counsel should be guided by the American Bar Association
Standards for the Defense Function, which include
consultation with the client, advising the client of his
rights and taking all actions necessary to preserve them, and
conducting appropriate investigations. Id. at 1203.
In United States v. DeCoster, 624 F.2d 196 (D.C.
Cir. 1976) (“Decoster II”), the court
clarified that “a mere breach of duty to an accused is
not a constitutional violation unless the defendant proves
that he was prejudiced.” Id. at 238.
only does Kobasic fail to include any specific allegations as
to what counsel failed to investigate, he also fails to
describe how he was prejudiced. He does not identify any
witnesses that Henderson should have interviewed or any
additional investigation that she should have conducted.
Rather, he simply concludes that she “failed to perform
at least as well as a ...