United States District Court, W.D. Michigan, Southern Division
T. NEFF, UNITED STATES DISTRICT JUDGE
the Court is a motion to vacate, set aside, or correct
sentence under 28 U.S.C. § 2255,  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
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
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.
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.
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.)
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.)
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.
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.
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
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.
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.)
now raises the following grounds for relief in his §
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.)
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)).
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).