REPORT AND RECOMMENDATIONS; DECISION AND ORDER ON MOTION FOR EVIDENTIARY HEARING
MICHAEL R. MERZ, Magistrate Judge.
This is an action under 28 U.S.C. § 2255 to Vacate the criminal judgment against Defendant on which he is serving a sentence of 360 months. The case is before the Court on Defendant's pro se Motion in Furtherance of Petition for Evidentiary Hearing in Accordance to Judicial Order (Doc. No. 152). Aside from any Grounds for Relief on which an evidentiary hearing will be held, the § 2255 Motion is ripe for decision on the merits.
Hunter pleads the following Grounds for Relief:
Ground One: Ineffective assistance of counsel where counsel failed to conduct an adequate investigation.
Supporting Facts: Failed to hire an investigator, failed to obtain video footage of crime scene, failed to know the law as it pertained to Booker/FanFan, failed to interview attorney Adrienne Brooks, failed to review case law presented to counsel by Movant.
Ground Two: Ineffective assistance of counsel.
Supporting Facts: Counsel misadvised Movant during plea negotiations pertaining to the evidence he would introduce during trial and his misadvising Movant relevant to the factual particulars as it applied to Booker/FanFan.
Ground Three: Ineffective assistance of counsel.
Supporting Facts: Counsel's failure to introduce the affidavit of Amanda Ward and Centerville Discovery material and use said evidence to impeach her testimony.
Ground Four: Ineffective assistance of counsel.
Supporting Facts: Counsel's failure to introduce the audio recordings of Rainwater and CI#-034 and used [sic] said evidence to impeach their testimony.
Ground Five: Ineffective assistance of counsel.
Supporting Facts: Counsel's failure to interview Adrienne Brooks in assessing whether or not she should be subpoenae [sic] as a possible witness.
Ground Six: Ineffective assistance of counsel.
Supporting Facts: Counsel[s] failure to request a lesser included offense instruction.
Ground Seven: Ineffective assistance of counsel.
Supporting Facts: The cumulative affect [sic] of these errors.
Ground Eight: Ineffective assistance of counsel during sentencing.
Supporting Facts: Failed to investigate, failed to perform effectively during the sentencing process, failed to challenge inaccuracies or omissions in the PSI report and failed to hold the court to the precepts of Fed. R. Crim. P. 32(1)(3)(B).
Ground Nine: Ineffective assistance of counsel on appeal.
Supporting Facts: Appellate counsel was ineffective for failing to raise an unreasonableness of the sentencing argument.
(Motion, Doc. No. 135, PageID 2277-79.) Hunter seeks an evidentiary hearing on all nine Grounds for Relief and clarifies that the first seven Grounds relate to the conduct of his trial attorney, Matthew Arntz, whereas Ground Eight refers to sentencing counsel William Daly, and Ground Nine refers to appellate counsel Kevin Schad. The United States opposes an evidentiary hearing for the reasons given in its Answer (Answer, Doc. No. 142; Response to Motion, Doc. No. 155).
An evidentiary hearing is to be held on a § 2255 Motion only if there is a factual dispute and the record does not conclusively show that the petitioner is not entitled to relief. Ross v. United States, 339 F.3d 483 (6th Cir. 2003). The burden of establishing entitlement to an evidentiary hearing is relatively light. Smith v. United States, 348 F.3d 545, 551 (6th Cir. 2003). However, no evidentiary hearing is necessary if the petitioner'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).
In reviewing a § 2255 motion in which a factual dispute arises, "the habeas court must hold an evidentiary hearing to determine the truth of the petitioner's claims." Turner v. United States, 183 F.3d 474, 477 (6th Cir. 1999). "[T]he burden on the petitioner in a habeas case for establishing an entitlement to an evidentiary hearing is relatively light." Id. More is required, however, than mere assertions of innocence. See id. ("[I]t would be nonsensical to conclude that the petitioner could meet that burden simply by proclaiming his innocence."). Nevertheless, "[a]n evidentiary hearing is required unless the record conclusively shows that the petitioner is entitled to no relief." Arredondo [ v. United States, 178 F.3d 778, 782 (6th Cir. 1999)] (internal quotations omitted). Stated another way, "no hearing is required if the petitioner's allegations cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact." Id. (internal quotations omitted).
Valentine v. United States, 488 F.3d 325 (6th Cir. 2007).
Because Hunter is proceeding pro se at this point, he is entitled to a liberal construction of his pleadings and motion. Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Estelle v. Gamble, 429 U.S. 97, 106 (1976); McNeil v. United States, 508 U.S. 106, 113 (1993).
Standard for Ineffective Assistance of Counsel Claims
All of Hunter's Grounds for Relief assert ineffective assistance of counsel, either at trial, at sentencing, or on appeal. The governing standard for ineffective assistance of counsel is found in Strickland v. Washington, 466 U.S. 668 (1984):
A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.
466 U.S. at 687. In other words, to establish ineffective assistance, a defendant must show both deficient performance and prejudice. Berghuis v. Thompkins, 560 U.S. 370, ___, 130 S.Ct. 2250, 2264 (2010), citing Knowles v. Mirzayance, 556 U.S.111 (2009).
With respect to the first prong of the Strickland test, the Supreme Court has commanded:
Judicial scrutiny of counsel's performance must be highly deferential.... A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy."
466 U.S. at 689.
As to the second prong, the Supreme Court held:
The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to overcome confidence in the outcome.
466 U.S. at 694. See also Darden v. Wainwright, 477 U.S. 168, 184 (1986), citing, Strickland, supra .; Wong v. Money, 142 F.3d 313, 319 (6th Cir. 1998), citing, Strickland, supra ; Blackburn v. Foltz, 828 F.2d 1177, 1180 (6th Cir. 1987) quoting, Strickland, 466 U.S. at 687. "The likelihood of a different result must be substantial, not just conceivable." Storey v. Vasbinder, 657 F.3d 372, 379 (6th Cir. 2011), cert. denied, ___ U.S. ___ , 132 S.Ct. 1760 (2012), quoting Harrington v. Richter, 562 U.S. ___, ___, 131 S.Ct. 770, 792 (2011).
Although there are two prongs to the Strickland test, courts need address only one prong if it is dispositive:
Although we have discussed the performance component of an ineffectiveness claim prior to the prejudice component, there is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one. In particular, a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel's performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that ...