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Russ v. United States

United States District Court, N.D. Ohio, Eastern Division

April 6, 2017

DAMIEN T. RUSS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER

          JOHN R. ADAMS, UNITED STATES DISTRICT JUDGE

         The instant matter is before the Court upon Petitioner Damien Russ' Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, filed pursuant to 28 U.S.C. § 2255. Doc. 822. The petition is DENIED.

         I. STANDARD OF REVIEW

         “To prevail under 28 U.S.C. § 2255, a defendant must show a ‘fundamental defect' in the proceedings which necessarily results in a complete miscarriage of justice or an egregious error violative of due process.” Gall v. United States, 21 F.3d 107, 109 (6th Cir. 1994). A federal district court may grant relief to a prisoner in custody only if the petitioner can “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.” Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003).

         II. FACTS AND PROCEDURAL HISTORY

         The facts of this matter were detailed in Petitioner's direct appeal of his convictions and are as follows:

Russ, a convicted felon on supervised release, fled when confronted by two law enforcement officers in the rear parking lot of the Powerhouse Bar and Grill in the early morning hours of July 10, 2010. As Russ pushed away and ran, the officers saw a shiny object at his waist that one of them recognized to be a firearm. They chased Russ, lost sight of him, and pulled him from some bushes a few minutes later. No firearm was found with Russ, but a silver .38 caliber revolver with an obliterated serial number and six rounds of ammunition was recovered less than ten minutes later in some brush along the path Russ had taken when officers lost sight of him. A one-count indictment charged Russ with being a felon in unlawful possession of a loaded firearm-namely, a Rossi .38 caliber revolver with an obliterated serial number and six rounds of ammunition-in violation of 18 U.S.C. § 922(g)(1).
Defendant's motion to suppress evidence was denied, and trial was conducted over several days in May 2011. Russ did not testify, and the jury found him guilty as charged. The district court varied upward and sentenced Russ to 97 months of imprisonment and three years of supervised release. Based on that conviction, the district court also revoked Russ's prior supervised release and imposed a consecutive 18-month term of imprisonment to be followed by the remaining term of supervised release. This court affirmed the denial of the suppression motion, but reversed both the felon-in-possession conviction and the revocation of his supervised release for reasons unrelated to this appeal. See United States v. Russ, 508 Fed.Appx. 377 (6th Cir. 2012).
On remand, Russ obtained new court-appointed counsel and elected to testify at the trial conducted in April 2013. The jury returned a verdict of guilty, and Russ filed a pro se motion for a new trial asserting claims of ineffective assistance of counsel. At sentencing, Russ also insisted that he be allowed to represent himself, and defense counsel withdrew. Defendant argued for a downward departure or variance and the government moved for an upward departure or variance as each had done after the first trial. But, the government also sought an additional two-level enhancement for obstruction of justice based on Russ's testimony during the second trial. See U.S. Sentencing Guidelines Manual (USSG) § 3C1.1 (2012). Finding the enhancement applied and granting an upward variance to the statutory maximum, the district court sentenced Russ to 120 months of imprisonment to be followed by a three-year term of supervised release. Revoking his prior term of supervised release, the district court imposed a consecutive sentence of 30 months of imprisonment and terminated the remaining period of supervised release.

United States v. Russ, 600 F. App'x 438, 440-41 (6th Cir. 2015).

         On February 4, 20156 Petitioner filed the instant motion. On April 4, 2016, the Government responded in opposition to the motion. Petitioner replied in support of his motion on April 22, 2016. The Court now resolves his arguments.

         II. LAW AND ARGUMENT

         GROUNDS ONE, TWO, and THREE

         In all three of his grounds for relief, Petitioner asserts that his counsel (trial in grounds one and two and appellate in ground three) was ineffective for 1) failing to properly advise him regarding his decision to testify on his own behalf, 2) failing to properly that his jury selection process was unconstitutional, 3) failing to argue on appeal that his waiver of counsel was invalid.

         The standard for ineffective assistance of counsel is the two-part test set forth by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). First, Petitioner must show that his counsel's performance was deficient. Id. at 687. Counsel must not merely have erred, but erred so “serious[ly] that counsel was not functioning as the ‘counsel' guaranteed ... by the Sixth Amendment.” Id. Second, Petitioner must show that his counsel's deficient performance actually prejudiced his defense. Id. The Court will now examine each of Petitioner's contentions.

         Petitioner's first contention - that his counsel failed to properly advise him regarding his decision to testify - is belied by the record. During the trial of this matter, Petitioner's then-counsel, Damian Billak, notified the Court that his client intended to testify:

MR. BILLAK: Your Honor, I just wanted to give the Court and marshals notice Ms. Russ is likely to testify and he would be the next witness.
THE COURT: All right. I think I probably should inquire of him, make certain that's what he desires to do.
MS. RICE: Thank you, Your Honor.
MR. BILLAK: And the ramifications that go along with that. I've gone over that ...

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