United States District Court, N.D. Ohio, Eastern Division
DAMIEN T. RUSS, Petitioner,
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM OPINION AND ORDER
R. ADAMS, UNITED STATES DISTRICT JUDGE
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.
STANDARD OF REVIEW
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).
FACTS AND PROCEDURAL HISTORY
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. §
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
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).
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.
ONE, TWO, and THREE
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.
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.
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 ...