United States District Court, S.D. Ohio, Eastern Division
C. SMITH JUDGE
REPORT AND RECOMMENDATION
CHELSEY M. VASCURA UNITED STATES MAGISTRATE JUDGE
a federal prisoner, brings this Motion to Vacate
under 28 U.S.C. § 2255. For the reasons that
follow, the Magistrate Judge RECOMMENDS that
all of Petitioner's claims, with the exception of his
claim that he was denied the effective assistance of counsel
based on his attorney's failure to file an appeal after
being requested to do so, be DISMISSED.
Magistrate Judge further RECOMMENDS that
counsel be appointed to represent Petitioner at an
evidentiary hearing on his claim that he was denied the
effective assistance of counsel based on his attorney's
failure to file an appeal.
Facts and Procedural History
January 13, 2016, Petitioner pleaded guilty pursuant to the
terms of his negotiated Plea Agreement, to charges
of conspiracy to distribute and to possess with intent to
distribute heroin, in violation of 21 U.S.C. § 846 and
§ 841(b)(1)(B)(i). (ECF No. 55.) On April 28, 2016, the
District Court imposed a sentence of 90 months of
imprisonment, to be followed by four years of supervised
release, and ordered the forfeiture of the property set forth
in Forfeiture Count A, Exhibits 1 and 2 of the
Indictment. (ECF No. 87.) Petitioner did not file an
April 3, 2017, Petitioner filed this Motion to Vacate
under 28 U.S.C. § 2255. He claims that he was
denied the effective assistance of counsel during plea
negotiations because his attorney failed to investigate,
failed to advise him of the likely consequences of a guilty
plea as opposed to proceeding to trial, and failed to attempt
to negotiate more favorable terms in the Plea
Agreement. Petitioner asserts that he was denied the
effective assistance of counsel at sentencing, because his
attorney failed to review with him or explain the
PreSentence Investigation Report and failed to file
objections to the PreSentence Investigation Report.
Finally, Petitioner asserts that he was denied the effective
assistance of counsel when his attorney failed to file a
notice of appeal after Petitioner requested that he do so.
Respondent argues that all of Petitioner's claims lack
Standard of Review
order to obtain relief under 28 U.S.C. § 2255, a
petitioner must establish the denial of a substantive right
or defect in the trial that is inconsistent with the
rudimentary demands of fair procedure. United States v.
Timmreck, 441 U.S. 780, 783 (1979); United States v.
Ferguson, 918 F.2d 627, 630 (6th Cir. 1990) (per
curiam). Relief under 28 U.S.C. § 2255 is available
when a federal sentence was imposed in violation of the
Constitution or laws of the United States or when the trial
court lacked jurisdiction, when the sentence was in excess of
the maximum sentence allowed by law, or when the judgment or
conviction is “otherwise subject to collateral
attack.” United States v. Jalili, 925 F.2d
889, 893 (6th Cir. 1991). In the absence of constitutional
error, the question is “whether the claimed error was a
‘fundamental defect which inherently results in a
complete miscarriage of justice.'” Davis v.
United States, 417 U.S. 333, 346 (1974) (quoting
Hill v. United States, 368 U.S. 424, 428-429
(1962)); see also Griffin v. United States, 330 F.3d
733, 736 (6th Cir. 2006). However, “‘[a] §
2255 motion may not be used to relitigate an issue that was
raised on appeal absent highly exception
circumstances.'” DuPont v. United States,
76 F.3d 108, 110 (6th Cir. 1996)(quoting United States v.
Brown, No. 94-5917, 1995 WL 465802 (6th Cir. 1995)).
Further, non-constitutional claims not raised at trial or on
direct appeal are waived on collateral review except where
the errors amount to something akin to a denial of due
process. Accordingly, claims that could have been raised on
direct appeal, but were not, will not be entertained on a
motion under § 2255 unless the petitioner shows (1)
cause and actual prejudice sufficient to excuse his failure
to raise the claims previously or (2) that he is
“actually innocent” of the crime. Ray v.
United States, 721 F.3d 758, 761 (6th Cir. 2001(citing
Bousley v. United States, 523 U.S. 614, 622 (1998))
(internal citations omitted).
A petitioner who entered a guilty plea must show an error of
constitutional magnitude that had a substantial and injurious
effect or influence on the proceedings. Griffin v. United
States, 330 F.3d 733, 736 (6th Cir. 2003)(citing
Abrahamson, 507 U.S. at 637). Therefore, a court may
only grant relief under § 2255 if the petitioner
demonstrates “‘a fundamental defect which
inherently results in a complete miscarriage of
justice.'” Id. at 736 (quoting Davis
v. United States, 417 U.S. 333, 346 (1974)). A
petitioner further bears the burden of articulating
sufficient facts to state a viable claim for relief under
§ 2255. Vague and conclusory claims which are not
substantiated by allegations of specific facts with some
probability of verity are not enough to warrant relief. A
§ 2255 motion may be dismissed if it only makes
conclusory statements without substantiating allegations of
specific facts and fails to state a claim cognizable under
§ 2255. Green v. Wingo, 454 F.2d 52, 53 (6th
Cir. 1972); O'Malley v. United States, 285 F.2d
733, 735 (6th Cir. 1961).
United States v. Noble, No. 1:14-cr-135, 2017 WL
626130, at *3 (N.D. Ohio Feb. 15, 2017).
Ineffective Assistance of Counsel
all criminal prosecutions, ” the Sixth Amendment
affords “the accused...the right...to Assistance of
Counsel for his defence.” U.S. Const. amend. VI.
“Only a right to ‘effective assistance of
counsel' serves the guarantee.” Couch v.
Booker, 632 F.3d 241, 245 (6th Cir. 2011) (citation
omitted). The United States Supreme Court set forth the legal
principles governing claims of ineffective assistance of
counsel in Strickland v. Washington, 466 U.S. 556
(1984). In order to prevail on a claim of ineffective
assistance of counsel, a petitioner must demonstrate both
that counsel's performance was deficient, or that counsel
“made errors so serious that counsel was not
functioning as the ‘counsel' guaranteed” by
the Sixth Amendment, and that this deficient performance
prejudiced the petitioner. Id. at 687. This showing
requires that defense counsel's errors were so serious as
to deprive the defendant of a fair and reliable trial.
Strickland's high bar is never an easy
task.” Padilla v. Kentucky, 599 U.S. 356, 371
(2010). Given the difficulties inherent in determining
whether an attorney's performance was constitutionally
deficient, “a court must indulge a strong presumption
that counsel's conduct falls within the wide range of
reasonable professional assistance . . . .”
Strickland, 466 U.S. at 689. Nevertheless,
“[a]n error by counsel, even if professionally
unreasonable, does not warrant setting aside the judgment of
a criminal proceeding if the error had no effect on the
judgment.” Id. at 691. Therefore, a petitioner
must also establish prejudice in order to prevail on a claim
of ineffective assistance of counsel. Id. at 692.
order to establish prejudice, a petitioner must demonstrate
that a reasonable probability exists that, but for
counsel's errors, the result of the proceedings would
have been different. Id. at 694. “A reasonable
probability is a probability sufficient to undermine
confidence in the outcome.” Id. Because a
petitioner must satisfy both prongs of Strickland in order to
demonstrate ineffective assistance of counsel, should a court
determine that the petitioner has failed to satisfy one
prong, it need not consider the other. Id. at 697.
a criminal defendant waives numerous constitutional rights
when he pleads guilty, the guilty plea must be entered
knowingly and voluntarily in order to be constitutionally
valid. Boykin v. Alabama, 395 U.S. 238, 244 (1969).
“‘The standard was and remains whether the plea
represents a voluntary and intelligent choice among the
alternative courses of action open to the
defendant.'” Sparks v. Sowders, 852 F.2d
882, 885 (6th Cir. 1988) (quoting North Carolina
v. Alford, 400 U.S. 25, 31 (1970)). In applying this
standard, a court must look at the totality of the
circumstances surrounding the plea. Id. A criminal
defendant's solemn declaration of guilt carries a
presumption of truthfulness. Henderson v. Morgan,
426 U.S. 637, 648 (1976). Further, a criminal defendant
cannot successfully challenge the voluntariness of his plea
merely on the basis that he was motivated to plead guilty.
Brady v. United States, 397 U.S. 742, 750 (1970).
a petitioner may challenge the entry of a plea of guilty on
the basis that counsel's ineffectiveness prevented the
plea from being knowing and voluntary. Tollett v.
Henderson, 411 U.S. 258, 267 (1973).
Strickland's two part test applies to challenges
to guilty pleas based on a claim of ineffective assistance of
counsel. Hill v. Lockhart, 474 U.S. 52, 59 (1985);
Sparks, 852 F.2d at 884. In order to obtain relief
on that basis, however, a petitioner raising such a claim
must first show that counsel's advice was not within the
range of competence demanded of attorneys in criminal cases.
Hill, 474 U.S. at 59; Sparks, 852 F.2d at
The second, or “prejudice” requirement, on the
other hand, 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, he would not have pleaded guilty and
would have insisted on going to trial.
Hill, 474 U.S. at 59; Sparks, 852 F.2d at
has failed to meet this standard here. Petitioner claims that
his attorney failed to consult with him regarding the case or
provide him with sufficient information so that he could make
an informed decision regarding whether to enter a guilty
plea. (ECF No. 102-1, PAGEID# 336.) Petitioner complains that
his attorney urged him to cooperate, advised him to plead
guilty, and pressured him into so doing. Additionally,
Petitioner contends that his attorney failed to conduct
pre-trial investigation as to information regarding the
person who set Petitioner up as criminally responsible for
the acts charged and facts indicating that Petitioner only
participated in five drug transactions and did not own the
apartment used as a “stash” house. Petitioner
complains that counsel failed to require testing of the drugs
seized, which would have resulted in a reduced sentence,
because Petitioner “cut” the drugs that he sold.
Petitioner states that he did not agree to the forfeiture of
property or any enhancements of his recommended sentence
under the advisory United States Sentencing Guidelines.
According to Petitioner, he was forced to sign the Plea
Agreement on the day of the guilty plea hearing, without
being provided sufficient time to review its terms.
Petitioner states that he attempted to hire a new attorney,
but was unable to do so, and the prosecutor told him that the
plea offer would be withdrawn if he hired a new attorney.
Petitioner maintains that, but for the ineffective
performance of his attorney, it is reasonably probable that
he would have pleaded guilty without a plea agreement or
proceeded to trial. Petitioner asserts that his attorney
failed to negotiate more favorable terms on his behalf and
improperly advised him that entry of a guilty plea was his
best option under the circumstances of this case.
response, Respondent has submitted an Affidavit from
Michael H. Siewert, Petitioner's former defense counsel,
which indicates in relevant part as follows:
I visited in the jail with Mr. Drone on sixteen (16)
different occasions to discuss this case. These visits do not
include additional consultations which occurred before,
during, and after the proffers with the government.
I met with Mr. Drone on the following dates:
a. August 19, 2015
b. August 22, 2015
c. August 24, 2015
d. August 29, 2015
e. September 9, 2015
f. September 17, 2015
g. September 30, 2015
h. October 12, 2015
i. December 14, 2015
j. December 16, 2015
k. December 22, 2015
l. January 22, 2016
m. February 9, ...