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United States v. Terry

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

July 27, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
DARREN TERRY, Defendant.

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

          SEAN F. COX, U.S. DISTRICT JUDGE

         In 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 direct appeal.

         The 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.

         BACKGROUND

         Petitioner 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.

         On 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 that range.

(Id. at p. 5).

         In the 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).

         The 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).

         The 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 sentence.

         Petitioner 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.

         On May 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 response.

         STANDARD OF REVIEW

         Petitioner's motion is brought pursuant to 28 U.S.C. § 2255, which provides:

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).

         The 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.”).

         Because 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.

         ANALYSIS

         In the 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.

         A. Petitioner's Reliance on Johnson is Misplaced

         Petitioner 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 misplaced.

         In 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.

         B. Ineffective Assistance of Counsel

         Petitioner 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.

         The 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.

         In 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.”).

         1. Petitioner's Plea Agreement

         Petitioner 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 (1973).

         “The 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.

         The 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).

         a. Failure to File Pre-Trial Motions

         First, 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).

         Petitioner 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).

         Despite 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.[1] (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 audio-visual recordings.”)).

         Moreover, 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).

         Petitioner 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).

         b. Alleged Failure to Investigate and Inform of Consequences of Pleading Guilty

         Next, 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 ...


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