United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PETITIONER'S MAY 4,
2017 AMENDED § 2255 MOTION
CORBETT O'MEARA UNITED STATES DISTRICT JUDGE.
matter came before the court on petitioner Ibrahim Aoun's
May 4, 2017 amended motion to vacate, set aside or correct
sentence. The government filed a response May 23, 2017; and
Petitioner filed a reply brief July 5, 2017.
found petitioner Ibrahim Aoun guilty as charged in all eight
counts upon which he was indicted. Aoun was convicted on drug
and guns charges and sentenced to 360 months'
imprisonment. The sentence was affirmed following Aoun's
appeal to the United States Court of Appeal for the Sixth
Circuit, and the United States Supreme Court subsequently
denied his petition for a writ of certiorari.
filed a motion to vacate, set aside or correct sentence
pursuant to 28 U.S.C. § 2255 on December 7, 2016, and
filed an amended motion May 4, 2017. The court entered orders
granting the government's requests for extensions to file
a response, and the government filed its response to the
amended motion May 23, 2017. In his motions Auon claims he
had ineffective assistance of counsel in the appellate
process because his attorney: (1) failed to challenge the
district court's denial of his Rule 29 motion, and (2)
failed to appeal on the basis of the voir dire
obtain post-conviction relief under 28 U.S.C.§ 2255, a
petitioner must allege the following: (1) an error of
constitutional magnitude, (2) a sentence imposed outside the
federal statutory limits, or (3) an error of fact or law so
fundamental as to render the entire criminal proceeding
invalid. Mallett v. United States, 334 F.3d 491,
496-97 (6th Cir. 2003). In order to obtain
collateral relief under § 2255, a petitioner must clear
a significantly higher hurdle than would exist on direct
appeal. United States v. Frady, 456 U.S. 152 (1982).
A motion to vacate sentence under § 2255 can be denied
if it states “only bald legal conclusions with no
supporting factual allegations.” Sanders v. United
States, 373 U.S. 1, 19 (1963). Furthermore, an
evidentiary hearing is not required “if the
petitioner's allegations cannot be accepted as true
because they are contradicted by the record, inherently
incredible, or conclusions rather than statements of
fact.” Valentine v. United States, 488 F.3d
325, 333 (6th Cir. 2007) (quoting Arrendondo
v. United States, 178 F.3d 778, 782 (6th Cir.
Strickland v. Washington, 466 U.S. 668, 687 (1984)
the Supreme Court articulated the standard for evaluating
claims of ineffective assistance of counsel as follows:
First, the defendant must show that counsel's performance
was deficient. This requires showing that counsel made errors
so serious that counsel was not functioning as the
‘counsel' guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that the deficient
performance prejudiced the defense. This requires showing
that counsel's errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.
Unless a defendant makes both showings, it cannot be said
that the conviction . . . resulted from a breakdown in the
adversary process that renders the result unreliable.
scrutiny of counsel's performance must be highly
deferential, and “a court must indulge in a strong
presumption that counsel's conduct falls within the range
of reasonable professional assistance; that is, the defendant
must overcome the presumption that, under the circumstances,
the challenged action might be considered sound . . .
strategy.” Id. at 689.
Strickland standard applies to appellate counsel as
well. Goff v. Bagley, 601 F.3d 445, 462
(6th Cir. 2010). The Supreme Court has held that a
defendant does not have a constitutional right to have every
appealable issue raised in his appeal. Smith v.
Murray, 477 U.S. 527, 536 (1986). Rather, the law
recognizes that effective attorneys must make strategic
judgments by “winnowing out the weaker arguments on
appeal and focusing on those more likely to prevail”
because that “is the hallmark of effective appellate
advocacy.” Id. at 536. “Counsel's
failure to raise an issue on appeal could only be ineffective
assistance if there is a reasonable probability that
inclusion of the issue would have changed the result of the
appeal.” Jones v. Barnes, 463 U.S. 745, 751-53
(1983). “Generally, only when ignored issues are
clearly stronger than those presented, will the presumption
of effective assistance of counsel be overcome.”
Monzo v. Edwards, 281 F.3d 568, 579 (6th
case petitioner Aoun's appellate counsel, who also
represented him in the trial court, clearly exercised his
legal judgment to forgo raising the denial of the Rule 29
motion on appeal in favor of stronger arguments. Gov't.
Ex. 1. Aoun cannot show that the court's denial of the
Rule 29 motion would have been overturned on appeal, thereby
rendering his counsel's assistance ineffective.
second argument, Petitioner alleges that his trial was
tainted because of the behavior of a potential juror who was
dismissed by the court during voir dire. In his
declaration attached to his amended § 2255 motion, Aoun
Before she exited the courtroom, she expressed to the court
that she would like to say something. The judge granted her
authority to speak. She turned to glare at me, pointing
almost violently, and began crying frantically. She yelled,
‘My brother overdosed and died because of people like
you!' She continued crying, turned in the direction of
the door, and ...