United States District Court, N.D. Ohio
ORDER [RESOLVING DOC. 116 
S. GWIN, UNITED STATES DISTRICT JUDGE.
December 2, 2014, Petitioner Dazzle Joe Young petitioned for
habeas relief under 28 U.S.C. § 2255 and requested
appointment of counsel. The Court denied Petitioner's
motion to vacate his conviction and request for
March 1, 2017, the Sixth Circuit Court of Appeals reversed
this Court's order. The Sixth Circuit found that
Petitioner Young had been entitled to counsel at an
evidentiary hearing and remanded the case for appointment of
counsel and a new hearing.
hearing where Petitioner was represented by counsel, the
Court DENIES Young's § 2255 petition.
October 8, 2012, a jury found Young guilty of being a felon
in possession of a firearm in violation of 18 U.S.C. §
922(g)(1). The Court sentenced Young to 188
months' imprisonment. The Sixth Circuit affirmed Young's
conviction and sentence on direct appeal.
trial, the Government presented evidence that Young sold a
firearm to two confidential informants at Young's Akron,
Ohio, home on June 20, 2011. The informants created a
low-quality audio recording of the sale.
counsel filed a motion in limine to exclude the recording at
trial, noting that it “contains substantial portions of
inaudible conversation, and appears to contain anomalies that
raise serious questions about whether ‘changes,
additions or deletions' have been made to the
recording.” The Government agreed not to use the
recording. Instead, a detective who monitored the
sale in real time testified he was familiar with Young's
voice and heard Young sell the informants a gun.
December 2, 2014, Young petitioned for habeas relief under 28
U.S.C. § 2255.Young also requested appointment of
counsel. In his petition, Young made two arguments.
Young argues that trial counsel Charles Fleming should have
introduced the audio of the recording at trial. Young
maintains that his voice was not on the recording. Had the
jury heard the recording, Young reasons they would have
agreed and acquitted Young as a result.
Young argues that Attorney Fleming failed to call certain
witnesses and did not perform an adequate pretrial
investigation. In support, Young submits affidavits from Fred
Alvarez and Jackie Birch. Both affiants state that they were
in the house during the sale. They also state they contacted
trial counsel in order to testify but received no response.
According to Mr. Birch, the Petitioner's brother told Mr.
Birch that he, not the Petitioner, sold the gun in question.
Young maintains that he would have been acquitted had Birch
or Alvarez been called to testify.
July 13, 2015 hearing, the Court denied Petitioner's
motion to vacate his conviction and request for counsel, and
also denied Petitioner's request for a certificate of
appealability. On the merits, the Court found
Petitioner's ineffective assistance of counsel arguments
the Court found that Petitioner's trial counsel's
decision to exclude the audio recording was “within the
range of professionally competent
assistance.” Introducing the tape was risky, as the
voice sounded similar to Young's.
the Court found trial counsels' preparation reasonable.
At the hearing, trial counsel testified that Young never
mentioned Birch or Alvarez being in the house until close to
trial, and that neither of them contacted trial counsel
30, 2015, Young filed a motion arguing that the failure to
appoint counsel to represent him violated his Sixth Amendment
rights. The Court denied the motion, finding
that Young had no absolute right to counsel. Young
March 1, 2017, the Sixth Circuit Court of Appeals reversed
this Court's order denying the motion for counsel. The
Sixth Circuit found that Petitioner Young is entitled to
counsel at an evidentiary hearing and remanded the case for
appointment of counsel and a new hearing. The Sixth
Circuit reasoned that had Young had the benefit of counsel at
the hearing, the Court may have considered the merits of his
ineffective assistance of counsel claim
May 30, 2017 hearing, Petitioner Young renewed his arguments
with counsel present.
28 U.S.C. § 2255 Relief
28 United States Code Section 2255 gives a federal
prisoner post-conviction means of collaterally attacking a
conviction or sentence that he alleges violates federal law.
Section 2255 provides four grounds upon which a federal
prisoner may challenge his conviction or sentence:
1) That the sentence was imposed in violation of the
Constitution or laws of the United States;
2) That the court was without jurisdiction to impose such
3) That the sentence exceeded the maximum authorized by law;
4) That the sentence is otherwise subject to collateral
prevail on a § 2255 motion alleging a constitutional
error, the movant “must establish an error of
constitutional magnitude which had a substantial and
injurious effect or influence on the
to the Sixth Circuit's order, the Court held another
evidentiary hearing in which Petitioner Young was represented
by counsel. However, Petitioner Young is bound by the same
standard applied in the Court's previous denial of
Young's habeas petition. Evidence presented at the recent
hearing does not change the Court's analysis.
prevail on an ineffective assistance of counsel claim, a
habeas petitioner must satisfy the two-pronged Strickland
v. Washington test.
the petitioner must show that his counsel's performance
was deficient, meaning it “fell below an objective
standard of reasonableness.” The Court determines
“whether, in light of all the circumstances, the
identified acts or omissions were outside the wide range of
professionally competent assistance.” The
Court's review is deferential, as “strategic
choices made after thorough investigation of law and facts
relevant to plausible options are virtually
the petitioner must show that the deficiency prejudiced his
defense; in other words, “that there is a reasonable
probability that, but for counsel's unprofessional
errors, the ...