United States District Court, E.D. Michigan, Southern Division
ORDER DENYING § 2255 MOTION & DECLINING TO
ISSUE CERTIFICATE OF APPEALABILITY
F. COX, U.S. DISTRICT JUDGE
Criminal Case Number 11-20752, Defendant/Petitioner Darren
Terry (“Petitioner”) pleaded guilty, pursuant to
a Rule 11 agreement, to one count of conspiracy to distribute
and to possess with intent to distribute controlled
substances. This Court sentenced Petitioner to 225 months of
imprisonment. Petitioner's conviction was affirmed on
matter is now before the Court on Petitioner's pro
se Motion to Vacate Sentence, brought pursuant to 28
U.S.C. § 2255. Because the files and records
conclusively establish that Petitioner is not entitled to
relief as to the claims in this motion, an evidentiary
hearing is not necessary. The matter is therefore ready for a
decision by this Court. For the reasons set forth below, the
Court shall DENY the motion. The Court also DECLINES to issue
a certificate of appealability.
was one of 15 defendants indicted in this drug conspiracy
case. Anthony Chambers (“Chambers”) represented
Petitioner through the plea stage. Stephon E. Johnson
(“Johnson”) represented Petitioner through the
plea hearing and sentencing. Johnson also filed a direct
appeal on Petitioner's behalf. Sometime thereafter,
Johnson filed a motion to withdraw as counsel. Paul L. Nelson
(“Nelson”) was subsequently appointed to
represent Petitioner on appeal.
April 2, 2013, Petitioner pleaded guilty “to Count One
of the Indictment, which charges a violation of 21 U.S.C.
§§ 841(a)(1) and § 846, conspiracy to
distribute and to possess with intent to distribute
controlled substances.” (Doc. # 379, Rule 11 Agreement
at p. 1). Petitioner's Rule 11 Plea Agreement contained
an appellate-waiver provision that stated as follows:
7. 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 imposed 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
(Id. at p. 5).
Rule 11 Plea Agreement, the parties agreed that a statutory
mandatory minimum term of imprisonment of 10 years is
applicable to this case and that the applicable guideline
range was 262-327 months. (Id. at p. 2).
Government and Petitioner also entered into a Cooperation
Agreement, which-if the Government filed a substantial
assistance motion-required Petitioner to be sentenced to a
prison term of at least 216 months and no more than 240
months. (Doc. # 487, Plea Hearing Tr. at Pg ID 2432).
Judgment (Doc. # 452), issued on October 2, 2013, reflects
that Petitioner 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. This Court
sentenced Petitioner to a total term of 225 months'
imprisonment. Thus, Petitioner's sentence was within the
range specified in his Cooperation Agreement. The sentence
imposed was just nine months over the agreed upon minimum
filed a direct appeal. His appellate counsel argued
ineffective assistance of trial counsel. Specifically,
Petitioner argued that his defense counsel provided
constitutionally ineffective assistance because counsel had
previously represented a codefendant. The Sixth Circuit
affirmed Petitioner's conviction. United States v.
Terry, 613 F. App'x 540 (6th Cir. 2015).
Id. at 542. In so doing, the Sixth Circuit noted
that Petitioner failed to provide concrete examples as to how
his trial attorney's representation was ineffective and
it concluded that counsel's ineffectiveness was not
apparent from the record. Id. at 542-43. Petitioner
also requested a remand to district court for a Rule 44
hearing. The Sixth Circuit held that there was no need for an
evidentiary hearing because Petitioner's trial attorney
was no longer representing a codefendant when he began
representing Petitioner. Id. at 543.
27, 2016, Petitioner filed a pro se motion seeking
relief under 28 U.S.C. § 2255. (Doc. # 623, Pet.'s
Mo.). Petitioner also filed a brief in support of his motion.
(Id.). The Government has filed a response in
opposition to Petitioner's motion. (Doc. # 655, Gov't
Resp.). Petitioner then filed a “motion for relief,
” (Doc. # 656, Pet.'s Reply), which the Court
construes as Petitioner's reply to the Government's
motion is brought pursuant to 28 U.S.C. § 2255, which
A prisoner in custody under a sentence of a court established
by Act of Congress claiming the right to be released upon the
ground that the sentence imposed was in violation of the
Constitution or laws of the United States, or that the court
was without jurisdiction to impose such a sentence, or that
the sentence was in excess of the maximum authorized by law,
or is otherwise subject to collateral attack, may move the
court which imposed the sentence to vacate, set aside, or
correct the sentence.
28 U.S.C. § 2255(a). 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).
Court must hold an evidentiary hearing on a § 2255
motion “[u]nless the motion and the files and records
of the case conclusively show that the prisoner is entitled
to no relief . . . .” 28 U.S.C. § 2255(b);
Blanton v. United States, 94 F.3d 227, 235 (6th Cir.
1996) (“evidentiary hearings are not required when . .
. the record conclusively shows that the petitioner is
entitled to no relief.”).
the files and records of the case conclusively show that
Petitioner is entitled to no relief as to the claims in his
§ 2255 motion, an evidentiary hearing is not necessary
and the matter is ready for a decision by this Court.
instant motion, Petitioner essentially makes two arguments.
First, Petitioner asserts that the career offender
enhancement he received is unconstitutional in light of
Johnson v. United States, 135 S.Ct. 2551 (2015).
Second, Petitioner argues that his attorneys, both trial and
appellate, provided ineffective assistance at the time of
Petitioner's plea, sentencing, and appeal. Petitioners
arguments are without merit for the reasons below.
Petitioner's Reliance on Johnson is Misplaced
appears to be challenging the career offender guideline
enhancement he received under U.S.S.G. §4B1.1. According
to Petitioner, Johnson invalidated the residual
clause of the sentencing guidelines. (Pet.'s Br. at p.
15). Petitioner's reliance on Johnson is
Johnson, the Supreme Court invalidated the Armed
Career Criminal Act's (“ACCA”) residual
clause for being unconstitutionally vague. Johnson,
135 S.Ct. at 2257. Here, Petitioner cannot rely on
Johnson because the Court did not sentence
Petitioner under the ACCA's residual clause. Nor was
Petitioner sentenced under the ACCA at all. And to the extent
that Petitioner argues that Johnson's holding
extends to the Sentencing Guidelines, Petitioner is mistaken.
The Supreme Court in Beckles v. United States, 197
L.Ed.2d 145 (2017), has clarified that Johnson's
void for vagueness argument does not apply to the residual
clause of the career offender Sentencing Guidelines.
Ineffective Assistance of Counsel
also asserts a number of ineffective assistance of counsel
claims against his trial attorneys, Anthony Chambers and
Stephon E. Johnson, and against his appellate attorney, Paul
L. Nelson. Petitioner argues that he was denied effective
assistance of counsel at the time of his plea, at the time of
his sentencing, and at the time of his appeal, in violation
of his rights under the Sixth Amendment.
Sixth Amendment requires effective assistance of counsel at
all critical stages of a criminal proceeding. Lafler v.
Cooper, 132 S.Ct. 1376, 1385 (2012). Ineffective
assistance of counsel claims are governed by the familiar
test set forth in Strickland v. Washington, 466 U.S.
668 (1984). “When a convicted defendant complains of
the ineffectiveness of counsel's assistance, the
defendant must show that counsel's representation fell
below an objective standard of reasonableness.”
Strickland, 466 U.S. at 687-88.
order to demonstrate ineffective assistance of counsel, a
petitioner must show both that defense counsel's
performance was deficient, and that petitioner suffered
prejudice as a result. Id. at 687. Indeed, it is
permissible for a court to determine that prejudice cannot be
established, and thus dispose of the claim without deciding
whether counsel performed deficiently. Id. at 697
(“[i]f it is easier to dispose of an ineffectiveness
claim on the ground of lack of sufficient prejudice . . .
that course should be followed.”).
Petitioner's Plea Agreement
argues that Chambers' ineffectiveness caused him to enter
an unknowing guilty plea. A prisoner may challenge the entry
of a plea of guilty on the basis that counsel's
ineffectiveness prevented the plea from being knowing and
voluntary. Tollett v. Henderson, 411 U.S. 258, 267
negotiation of a plea bargain is a critical phase of
litigation for purposes of the Sixth Amendment right to
effective assistance of counsel.” Padilla v.
Kentucky, 559 U.S. 356, 373 (2010) (citing Hill v.
Lockhart, 474 U.S. 52, 57 (1985)). It is well accepted
that “the decision to plead guilty first, last, and
always rests with the defendant, not his lawyer.”
Smith v. U.S., 348 F.3d 545, 552 (6th Cir. 2003).
However, an attorney is obligated to fully inform his or her
client of all available options. Smith, 348 F.3d at
552-53. “A criminal defendant has a right to expect at
least that his attorney will review the charges with him by
explaining the elements necessary for the government to
secure a conviction, discuss the evidence as it bears on
those elements, and explain the sentencing exposure the
defendant will face as a consequence of exercising each of
the options available.” Id.
failure of defense counsel to “provide professional
guidance to a defendant regarding his sentence exposure prior
to a plea may constitute deficient assistance.”
Smith, 348 F.3d at 553 (quoting Moss v. United
States, 323 F.3d 445, 474 (6th Cir. 2003)). In order to
demonstrate prejudice, “the petitioner must show
‘a reasonable probability' that
‘counsel's constitutionally ineffective performance
affected the outcome of the plea process.'”
Briggs v. U.S., 187 Fed. App'x 540, 543 (6th
Cir. 2006) (quoting Smith, 348 F.3d at 551).
Failure to File Pre-Trial Motions
Petitioner argues that Chambers was ineffective for failing
to file pre-trial motions. (Pet.'s Br. at p. 24).
Petitioner identifies the following as pre-trial motions he
believes should have been filed on his behalf: (1) motion for
discovery; (2) motion for Rule 404(b) materials; (3) motion
for Brady/Giglio materials; (4) motion to compel
agents to preserve rough notes; (5) motion for identity of
confidential informants and for equal access to interview;
(6) motion to dismiss for want of sufficiency; (7) motion for
private investigator; and (8) motion for an independent drug
analysis. (Id. at pp. 24-25).
argues that as a result these failures, he was “left
with an ‘empty drawer' as to the strength of the
government's case” and was therefore “unable
to obtain the discovery that he needed to ... make an
informed decision on whether to plead guilty or to proceed to
trial.” (Id. at p. 25). Petitioner summarily
concludes that “there is a reasonable probability that
he would have opted to proceed to trial” if he had been
provided with discovery. (Id. at pp. 25-26).
Petitioner's assertions, he was not left with an
“empty drawer” as to the Government's case.
Quite the contrary was actually the case here. As the
Government points out, most of the pre-trial motions
identified by Petitioner amount to requests for materials
already in Petitioner's
possession. (See Doc. # 119, Stipulation and
Order (noting that “pursuant to each Defendants'
counsel's request, the government provided discovery
documents/information pursuant to Rule 16. Electronic copies
of the discovery documents and audio/visual/audio-visual
files were sent to defense counsel in waves, on February 3,
2012, on February 22, 2012, and on February 27, 2012. This
discovery included over 5, 000 pages of documents, including
multiple affidavits and applications for search warrants and
wiretaps, and over 2, 000 media files, including audio and
Petitioner provides no factual or legal support from which
the Court might evaluate the validity of the motions he
claims should have been filed. And, in light of the
extraordinary amount of documents provided in this case, the
Court seriously doubts that such motions would have been
successful. Notably, even Petitioner fails to argue that such
motions would have been successful. Thus, Petitioner has not
demonstrated that Chambers was ineffective. See United
States v. Hanley, 906 F.2d 1116, 1121 (6th Cir. 1990)
(the failure of defense counsel to pursue frivolous motions
cannot constitute ineffective assistance of counsel).
also fails to establish prejudice because he has not
demonstrated that the filing of these motions would have
changed his decision to plead guilty. Petitioner's
conclusory assertion stating otherwise is insufficient.
See Kelley v. United States, 2014 WL 2921821, at *10
(E.D. Tenn. June 27, 2014) (“To demonstrate a
reasonable probability he would have gone to trial, a movant
is required to present evidence apart from a lone assertion
that but for counsel's error he would have pleaded not
guilty and gone to trial”) (citations omitted).
Alleged Failure to Investigate and Inform of Consequences of
Petitioner argues that Chambers “failed to properly
inform [Petitioner] of the correct relevant circumstances and
likely consequences of pleading guilty, as opposed to
proceeding to trial.” (Pet.'s Br. at p. 26).
According to Petitioner, Chambers erroneously advised that
Petitioner would receive a maximum sentence of 120 months if
he chose to plead guilty. (Id. at pp. 27-28).
Petitioner asserts that he would have insisted on proceeding