United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING DEFENDANT'S
RECHARACTERIZED MOTION FOR RELIEF UNDER 28 U.S.C. §
2255
ROBERT
H. CLELAND UNITED STATES DISTRICT JUDGE
Pursuant
to a Rule 11 agreement, Defendant Marty Tutt pleaded guilty
to two counts of extortion in violation of 18 U.S.C. §
1951. (ECF No. 14.) He was sentenced to 12 months and one day
imprisonment. (ECF No. 25.) Before the court is
Defendant's recharacterized motion for relief under 28
U.S.C. § 2255 based upon ineffective assistance of
counsel. (ECF Nos. 30, 42.) For the reasons explained below,
the court will deny the motion.
I.
BACKGROUND
This
case involves three attorneys. The first is Defendant's
original counsel of record, Rebekah R. Coleman. (ECF No. 8.)
Defendant pleaded guilty to two counts of extortion while
being represented by Ms. Coleman. (ECF No. 14.) Subsequently,
a new attorney was substituted as his counsel of record,
Nicole L. James. (ECF No. 20.) Ms. James represented
Defendant at his sentencing, accompanied by yet another
attorney, Vanessa Ross-Wilson. (ECF No. 26.) The present
motion is based on the alleged ineffective assistance of Ms.
James and Ms. Ross-Wilson. (ECF Nos. 30, 42.)
At
Defendant's sentencing, the applicable guideline range
was determined to be 30-37 months imprisonment. (ECF No. 26,
PageID.114.) Defendant was sentenced to a term of 12 months
and one day. (Id., PageID.119.) He argues
ineffective assistance of counsel based upon Ms. James and
Ms. Ross-Wilson's incorrect advice regarding the length
and execution of his sentence by the Bureau of Prisons. (ECF
No. 30, PageID.157.) Defendant asserts that, after he was
sentenced, he and his family met with Ms. James and Ms.
Ross-Wilson, and they were adamant that “he would serve
no more than two or three months of actual detainment at a
camp with a guarantee of the last six months of his sentence
to be served in a halfway house, ‘once the Bureau of
Prisons completed the calculation of his
sentence.'” (Id., PageID.158.)
II.
STANDARD
Under
§ 2255, a prisoner sentenced by a federal court may
“move the court which imposed the sentence to vacate,
set aside or correct the sentence” on the grounds
“that the sentence was imposed in violation of the
Constitution or laws of the United States, or that the court
was without jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by law, or
is otherwise subject to collateral attack.” 28 U.S.C.
§ 2255(a). This statute “is not a substitute for a
direct appeal, ” and “a prisoner must clear a
significantly higher hurdle than would exist on direct
appeal” to merit relief. Regalado v. United
States, 334 F.3d 520, 528 (6th Cir. 2003) (citing
United States v. Frady, 456 U.S. 152, 166-68
(1982)).
To
establish ineffective assistance of counsel under the Sixth
Amendment, Defendant must satisfy the two-prong test set
forth in Strickland v. Washington, 466 U.S. 668
(1984). First, Defendant must show that his counsel's
performance was deficient, which “requires a showing
that counsel made errors so serious that counsel was not
functioning as the ‘counsel' guaranteed the
defendant by the Sixth Amendment.” Id. at 687.
Defendant “must show that counsel's representation
fell below an objective standard of reasonableness, ”
and there is a “strong presumption that counsel's
conduct falls within the wide range of reasonable
professional assistance.” Id. at 687-89.
Second,
Defendant “must show that the deficient performance
prejudiced the defense.” Id. at 687-88. In the
context of a guilty plea, this prong requires Defendant to
establish that “he would not have pleaded guilty and
would have insisted on going to trial.” Thomas v.
Foltz, 818 F.2d 476 (6th Cir. 1987) (quoting
Lockhart, 474 U.S. at 59). Prejudice cannot be
established if statements are made “relevant only to
sentencing and not to whether [the defendant] would have pled
guilty.” United States v. Garofolo, 425
Fed.Appx. 460, 462 (6th Cir. 2011). A defendant's
testimony at a plea hearing declaring an understanding and a
voluntary signature on the plea agreement creates a
“formidable barrier” to collateral relief for a
claim of ineffective assistance of counsel. Blackledge v.
Allison, 431 U.S. 63, 74 (1977); see also
Lockhart, 474 U.S. at 54.
III.
DISCUSSION
Defendant
argues that he received ineffective assistance of counsel
because he was given incorrect advice on his sentence and how
it would be executed by the Bureau of Prisons. (ECF No. 30,
PageID.157.) Specifically, he claims that “[h]is
attorneys were adamant he would be serving no more than three
months of actual prison time, with a guarantee the last six
months would be spent in a halfway house, no matter
what.” (Id., PageID.159.) Defendant claims
that he “was only convinced to plead guilty because he
would serve minimal ‘jail time.'”
(Id., PageID.158.) When he reported to Camp Hazelton
in West Virginia, however, his case manager advised him that
“six months of halfway house for the length of his
sentence was unattainable.” (Id.,
PageID.158-59.)
To
establish ineffective assistance of counsel, Defendant must
show both that his counsel was deficient and that this
prejudiced him. Defendant's motion, however, precludes
any finding of prejudice. First, he alleges that the
incorrect advice was given to him after he was
sentenced. By Defendant's account, this advice could
not have affected his decision to plead guilty. Additionally,
the attorneys at issue in this motion did not represent
Defendant until after he had already pleaded guilty. (ECF No.
20.) Any statements made by them could not have impacted his
decision to plead guilty, and Defendant makes no allegations
of wrongdoing by his original counsel. Moreover, even if
Defendant had received this advice before his sentence or
before he pleaded guilty, he admits he “may not have
persisted with trial.” (ECF No. 30, PageID.159.) This
too undermines a finding of prejudice.
Defendant
also states that had he understood how his sentence would be
executed by the Bureau of Prisons, “he decisively would
have insisted on a Type-C binding plea agreement” for a
probationary sentence or at least one specifying he would
spend no more than three months in a prison camp.
(Id., PageID.159-60.) This argument is not supported
by the record. There is no suggestion that such a plea
agreement was or would have been offered to Defendant. The
only evidence is of the plea agreement Defendant entered
into, which calculated his guideline sentencing range of
24-30 months. (ECF No. 14.) Given that Defendant received a
sentence 12 months below the bottom of that range and 18
months below the bottom of the guideline range determined at
sentencing, he appears to have indeed received “minimal
jail time” for the offenses he committed. Between
Defendant's admission he may not have persisted to trial,
the lenient sentence he received, and the lack of any record
of Defendant's hypothetically-negotiated plea agreement,
Defendant fails to show “that there is a reasonable
probability the outcome of [his] plea process would have been
different had he received competent advice.”
Rodriguez-Penton, 905 F.3d at 486-87.
Defendants'
final two arguments are based on facts that are irrelevant to
both the outcome of his plea process and the sentence he
received. First, Defendant states that his counsel's
incorrect advice caused him to make “falsified legal
commitments to a Circuit Court” at a child-custody
hearing about how long he anticipated being incarcerated.
(ECF No. 30, PageID.169.) Second, Defendant argues that his
absence at the Serenity Support, LLC youth organization while
incarcerated will have a negative impact on the juveniles he
mentors and affect the organization's scheduling.
(Id., PageID.161.) Factors outside of ...