United States District Court, W.D. Michigan, Southern Division
J. QUIST UNITED STATES DISTRICT JUDGE
Handsome Peter Parker, filed a motion under 28 U.S.C. §
2255 collaterally attacking his criminal sentence. (ECF No.
1.) On October 5, 2016, Parker pled guilty to possession of
cocaine base with intent to distribute, and Judge Robert
Holmes Bell sentenced Parker to 188 months imprisonment.
Parker argues three grounds to support his motion: 1)
ineffective assistance of counsel; 2) improper designation as
a career offender, resulting in an Eighth Amendment
violation; and 3) equal protection clause violation. The
United States responded in opposition to Parker's motion.
(ECF No. 19.)
has waffled and filed a web of motions as to whether he would
like to continue his motion. On October 30, 2017,
Parker indicated he would like to withdraw the matter out of
fear of repercussions in prison for cooperating with the
government. (ECF No. 21.) On November 1, 2017, Parker seemed
to be changing his mind. (ECF No. 22.) On November 6, 2017,
Parker filed a motion to stay proceedings because 1) he has
been working to have a prior state conviction removed,
2) because of changes to the Sentencing Guidelines by
Amendment 798. (ECF No. 23.) On November 16, 2017, Parker
indicated he would like to “redraw” his appeal
because he did not want anyone in prison to read it. (ECF No.
24.) On December 4, 2017, Parker stated he would like to
withdraw his motion. (ECF No. 25.) On December 26, 2017, the
United States responded to Parker's motion to withdraw,
stating it had no objection, and requesting dismissal with
prejudice. (ECF No. 27.) On January 8, 2018, Parker asked the
Court to “go ahead” and rule on his 2255 motion.
(ECF No. 29.) On April 13, 2018, Parker wrote “just to
check in” on the status of his motion. (ECF No. 30.)
Accordingly, the Court will take Parker for his latest word
that he would like the Court to review his motion and
consider his prior motions withdrawn.
Assistance of Counsel
submits that his guilty plea was “involuntary,
unknowing, and unintelligent” because his counsel Peter
VanGelderen “guaranteed” that he would get a
downward variance, resulting in a sentence of no more than
ten years. (ECF No. 2 at PageID.14.) Parker also argues that
VanGelderen was ineffective because he “allowed
[Parker] to plea guilty to evidence that was illegally
order to establish a constitutional ineffective assistance of
counsel claim, a movant must show a “reasonable
probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been
different.” Strickland v. Washington, 466 U.S.
668, 694, 104 S.Ct. 2052, 2068 (1984). The standard for
analyzing ineffective assistance claims is “simply
reasonableness under prevailing professional norms.”
Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527,
2535 (2003) (quoting Strickland, 466 U.S. at 688,
104 S.Ct. at 2065). The Court must presume that the lawyer is
competent-the burden is on Parker, therefore, to demonstrate
a constitutional violation. United States v. Cronic,
466 U.S. 648, 658, 104 S.Ct. 2039, 2046 (1984).
is no evidence to support Parker's claims. VanGelderen
denies ever promising Parker a sentence of ten years or less.
VanGelderen was confident in a motion he filed for a downward
variance because he believed the career offender guideline
“significantly overstated the seriousness of the
offense and Mr. Parker's criminal history.” (ECF
No. 9 at PageID.48.) VanGelderen stated that he and Parker
had “lengthy discussions” about the career
offender guideline, and the two of them “determined
that he was correctly scored as a career offender.”
(Id.) VanGelderen also discussed the importance of
his acceptance of responsibility for a reduction to his
sentencing range-and how pursuing a motion to suppress
evidence on the same day of the final pretrial conference
would forfeit that reduction. (ECF No. 9 at PageID.47.)
Parker's plea hearing, Judge Bell asked Parker,
“Has anyone made any promise of leniency or told you
they know what the sentence this Court is going to impose
will be?” Parker answered, “No, your
honor.” (No. 1:16-CR-35, ECF No. 36 at PageID.160.)
Parker also said that he and VanGelderen had discussed the
possible sentence at length, that he was giving his plea
freely and voluntarily, and that he understood the
Court's discretion in following the guidelines.
(Id. at 160-61.) Representations by a defendant
“constitute a formidable barrier in any subsequent
collateral proceedings. Solemn declarations in open court
carry a strong presumption of verity. The subsequent
presentation of conclusory allegations unsupported by
specifics is subject to summary dismissal.”
Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct.
1621, 1629 (1977). The Court followed proper plea colloquy
procedures under Federal Rule of Criminal Procedure 11(b).
Parker's conclusory and unsupported assertions that
VanGelderen promised him a sentence of less than ten years
fall flat. VanGelderen's own sworn affidavit and
contemporaneous memoranda, and Parker's statements at the
plea hearing defeat his claim of ineffective assistance
related to his sentencing.
also alleges ineffective assistance of counsel related to his
motion to suppress-this argument fails as well. Parker argues
that VanGelderen rendered “deficient performance”
under Strickland because he did not “follow
through on the motion to suppress evidence based on the fact
that it was a warrantless search.” (ECF No. 2 at
Muskegon Police arrested Parker for driving a truck that had
been reported missing and for a parole violation, the police
transported Parker to the Muskegon County Jail. En route,
Officer Dunmire noticed that Parker was squirming around in
the backseat-in a way Dunmire recognized as a method subjects
often use to hide drugs or other contraband. While being
processed through jail intake, Officer Dunmire and Deputy
Stephenson did a strip search of Parker. Dunmire and
Stephenson found a clear plastic bag containing three rocks
of crack cocaine between Parker's buttocks. In the
government's response brief to Parker's motion to
suppress, the government stated, “No part of the
plastic bag had been in Parker's rectum and Dunmire felt
no resistance when removing the plastic bag.” (No.
1:16-CR-35, ECF No. 19 at PageID.36.) VanGelderen stated that
the contemporaneous police report, which the government
provided to him, reflected this characterization of the
events. Parker now alleges that the crack was inside his
rectum, and the warrantless search of his body cavity was an
unreasonable search. (ECF No. 2 at PageID.16-17.)
notes that, at Parker's request, he researched the issue
and informed Parker that a motion to suppress the search and
its fruits, i.e., the crack, would not likely win.
Parker provided VanGelderen with a motion another inmate had
filed, and lost, on a similar issue. Because Parker was
insistent, VanGelderen continued with the motion. (ECF No. 9
at PageID.46.) The Court scheduled the suppression hearing
for the same day of the final pretrial conference; the
government then informed VanGelderen that Parker would
forfeit his third-level acceptance of responsibility under
the Sentencing Guidelines § 3E1.1(b) if he pursued the
motion on that day. Due to his earlier concerns regarding the
motion and the potential loss of a reduction, VanGelderen
again stressed to Parker the demerits of continuing with the
motion to suppress. Parker decided to withdraw the motion.
(ECF No. 9 at PageID.46-47.) At the plea hearing, Parker
stated that he was satisfied with VanGelderen's
representation of him. (No. 1:16-CR-35, ECF No. 36 at
PageID.156.) Considering this, the likelihood that the motion
would be denied, and the potential impact the motion would
have on Parker's sentencing, and the presumption of
competency, VanGelderen's assistance was certainly
“reasonable considering all the circumstances.”
Strickland, 466 U.S. at 688, 104 S.Ct. at 2065. For
example, if Judge Bell had found that Parker was lying about
the search, Parker, in addition to losing the third point
under U.S.S.G. § 3E1.1(b), could have been assessed
obstruction points pursuant to U.S.S.G. § 3C1.1, App.
Parker's arguments to vacate his sentence due to
ineffective assistance of counsel will be rejected.
next argues that he was illegally scored as a career offender
under Sentencing Guideline § 4B1.1, and his sentence
therefore violated the Eighth ...