United States District Court, N.D. Ohio, Eastern Division
OPINION AND ORDER
Aaron Polster United States District Judge
case is before the Court upon the Motion Under 28 U.S.C.
§ 2255 to Vacate, Set Aside, or Correct Sentence by a
Person in Federal Custody (“Motion”). (Doc #:
361.) For the following reasons, the Motion is summarily
March 6, 2014, Darryl Whittington, pursuant to a written plea
agreement, pled guilty to one count of conspiracy to possess
with the intent to distribute cocaine, in violation of 21
U.S.C. §§841(a)(1)(b)(A) and 846. (Doc ##: 141,
145.) On December 10, 2014, Whittington was sentenced to a
prison term of 151 months. (Doc #: 231.) Whittington
challenged the calculation of his sentence on direct appeal.
On January 14, 2016, the Sixth Circuit affirmed, concluding
that he had waived his right to appeal his sentence and his
guilty plea was knowing and voluntary. (Doc #: 343.)
Whittington did not petition for certiorari.
now raises three grounds for post-conviction relief. First,
he contends that his counsel was constitutionally ineffective
because he failed to challenge the conspiracy charge and
abandoned all adversarial testing for the said drug
conspiracy. Second, he contends that counsel was ineffective
for failing to research law and facts to understand the
buyer-seller defense. Third, he contends that there was a
reasonable probability that prosecutorial misconduct occurred
because the Government asserted facts not in evidence,
mischaracterized evidence and misstated the law.
28 U.S.C. § 2255, a federal district court may grant
relief to a prisoner in custody under a sentence imposed by
that court “upon the ground 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 . . . .” Id.
4(b) of the Rules Governing Section 2255 Proceedings requires
the judge to whom the 2555 petition is assigned to promptly
examine the petition. Rule 4(b) provides in pertinent part as
If it plainly appears from the face of the motion, and any
attached exhibits, and the record of prior proceedings that
the moving party is not entitled to relief, the judge must
dismiss the motion and direct the clerk to notify the moving
party. If the motion is not dismissed, the judge must order
the United States attorney to file an answer, motion, or
other response within a fixed time, or to take other action
the judge may order.
Id. The Court has promptly examined the § 2255
Petition, the record in the underlying criminal case, and the
case law and finds that it plainly appears that Darryl
Whittington is not entitled to relief in the district court
for the following reasons.
first ground for relief, Whittington argues that he was
denied the effective assistance of counsel based on
counsel's alleged failure to challenge the said
conspiracy charge that was never challenged or established
for the record. The Court disagrees.
of ineffective assistance of counsel are analyzed under the
standard enunciated in Strickland v. Washington, 466
U.S. 668 (1984). To prevail on a claim of ineffective
assistance of counsel, the petitioner must establish two
elements: (1) counsel's performance fell below an
objective standard of reasonableness, and (2) there is a
reasonable probability that, but for counsel's
deficiency, the outcome of the proceedings would have been
different. Griffin v. United States, 330 F.3d 733,
736 (6th Cir. 2003) (citing Strickland). A review of
counsel's performance must be highly deferential and
requires the courts to "indulge a strong presumption
that counsel's conduct falls within a wide range of
reasonable professional assistance." Monzo v.
Edwards, 281 F.3d 568, 579 (6th Cir. 2002) (quoting
Strickland, 466 U.S. at 689).
Strickland standard applies to guilty pleas.
Hill v. Lockhart, 474 U.S. 52, 58 (1985). In the
guilty plea context, the first Strickland element is
the same. Griffin, 330 F.3d at 736-37 (citing
Hill, 474 U.S. at 58-59). However, the prejudice
prong "focuses on whether counsel's constitutionally
ineffective performance affected the outcome of the plea
process. In other words, in order to satisfy the
‘prejudice' requirement, the defendant must show
that there is a reasonable probability that, but for
counsel's errors, ...