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United States v. Diggs

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

October 24, 2019




         Before the Court is a motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255, [1] filed by Defendant Larry Dwayne Diggs (ECF No. 111). The Government has filed a response to the motion (ECF No. 113), and Defendant has filed a reply (ECF No. 118). Also before the Court is Defendant's motion to expand the record. (ECF No. 119.) For the reasons herein, the motion to expand the record will be granted, but the motion under § 2255 will be denied.

         I. Background

         In the early morning hours of July 2, 2015, Defendant drove a black Chevy Impala bearing a license plate that read “TUNISIA” to a gas station in Muskegon, Michigan. He brought with him 5 grams of crack cocaine to sell to customers and a stolen .40 caliber pistol. (See Plea Agreement, ECF No. 48; Presentence Investigation Report, ECF No. 77.) There was a passenger with him in the vehicle. Someone called the police to report suspected drug activity at the gas station. When the police arrived, Defendant fled on foot, leaving behind the vehicle, the cocaine, and the handgun.

         The vehicle belonged to Defendant's girlfriend, Tunisia Phillips-Lark. After the police arrested Defendant, he spoke with his girlfriend several times over the telephone at the jail. He instructed her to provide false testimony to the grand jury so that she would not implicate herself or him. He told her to claim that her car had been stolen. They also spoke about their involvement in drug trafficking, and he instructed her to recover drug proceeds and to dispose of drugs that he had stashed in her home. In addition, they made plans to discourage the passenger in the Chevy Impala from implicating Defendant. These telephone calls were recorded.

         Phillips-Lark followed Defendant's instructions. Among other things, when she testified before the grand jury on August 11, 2015, she denied allowing Defendant to borrow her car, and she denied speaking to him since his arrest.

         In September 2015, the grand jury returned an indictment charging Defendant with being a felon in possession of a firearm and ammunition (Count 1), possession of a controlled substance with intent to distribute (Count 2), and using and carrying a firearm during and in relation to a drug trafficking crime (Count 3). (Indictment, ECF No. 1.)

         The following month, the Government offered Defendant a plea deal. He could plead guilty to Counts 2 and 3 in exchange for the dismissal of Count 1. (See Unsigned Plea Agreement, ECF No. 111-1.) In addition, the Government agreed to not oppose a request for a reduction in Defendant's offense level under the Sentencing Guidelines for acceptance of responsibility. The offer indicated that it would expire on October 16, 2015. (Id., PageID.471.)

         Defendant contends that his attorney did not disclose this plea offer to him until Friday, November 20, 2015, when he visited Defendant at the county jail. Defendant asked to look over the agreement, consider it, and then contact his attorney the following Monday. Meanwhile, the Court unsealed a superseding indictment with an additional defendant (Defendant's girlfriend) and two additional charges against Defendant. (Superseding Indictment, ECF No. 21.) Counts 1-3 of the superseding indictment were the same as Counts 1-3 of the original indictment, but Count 4 of the superseding indictment alleged that Defendant had engaged in witness tampering in July and August 2015 by attempting to influence or prevent the grand jury testimony of his girlfriend, and Count 9 charged Defendant and his girlfriend with conspiracy to witness tamper.

         Defendant received the superseding indictment the following Monday and spoke with his attorney on the phone. His attorney told him that the original plea offer was no longer available.

         Two months later, Defendant agreed to plead guilty to Counts 2-4 of the superseding indictment in exchange for the dismissal of the other charges against him. The Plea Agreement he signed is virtually identical to the first plea offer he received, except for the addition of Count 4 and the mention of Defendant's new charges for witness tampering and conspiring to tamper with a witness. (See Plea Agreement, ECF No. 48.) Defendant entered his plea on February 4, 2016, before United States District Judge Robert Holmes Bell.

         The Presentence Investigation Report (PIR) grouped Counts 2 and 4 together and calculated a sentence range of 33 to 41 months for those counts, as well as a consecutive sentence of 60 months for Count 3. (PIR, ECF No. 77, PageID.304.) The calculation for Counts 2 and 4 was based on a total offense level of 18 and a criminal history score of III. (Id.) The calculation for Count 3 was based on the statutory minimum sentence for that offense. (Id.) Judge Bell accepted those calculations and sentenced Defendant on June 6, 2016, to 36 months of imprisonment for Counts 2 and 4, and a consecutive 60 months for Count 3, for a total term of 96 months.

         Defendant appealed his conviction, arguing that his attorney was ineffective for failing to timely convey the first plea offer to him. The Court of Appeals declined to consider the claim because the record was insufficient to evaluate prejudice. (See 6th Cir. Order, ECF No. 108.)[2]

         Defendant now raises the following grounds for relief in his § 2255 motion:

I. Counsel failed to timely convey the plea offer.
II. Counsel failed to move for a downward departure under § 5G1.3(b)(1) of the Sentencing Guidelines.
III. Counsel failed to adequately investigate facts and prepare for sentencing or object to sentencing enhancements.
IV. The prosecutor engaged in misconduct by presenting improper evidence, and failing to present other evidence, to the grand jury.

(See § 2255 Motion, ECF No.111, PageID.456.)

         II. Standards

         A. Merits

         A prisoner who moves to vacate his sentence under § 2255 must show that the sentence was imposed in violation of the Constitution or laws of the United States, that the court was without jurisdiction to impose such a sentence, that the sentence was in excess of the maximum authorized by law, or that it is otherwise subject to collateral attack. 28 U.S.C. § 2255. To prevail on a § 2255 motion “a petitioner must demonstrate the existence of an error of constitutional magnitude which had 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) (quoting Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003)). Non-constitutional errors are generally outside the scope of § 2255 relief. United States v. Cofield, 233 F.3d 405, 407 (6th Cir. 2000). A defendant 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) (quoting United States v. Ferguson, 918 F.2d 627, 630 (6th Cir. 1990) (internal quotations omitted)).

         B. Evidentiary Hearing

         The court must hold an evidentiary hearing to determine the issues and make findings of fact and conclusions of law “[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). No hearing is required if Defendant's allegations “cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact.” Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999) (quotation omitted).

         III. ...

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