United States District Court, N.D. Ohio, Eastern Division
JOHN H.C. BLACK, Petitioner,
UNITED STATES OF AMERICA, Respondent.
OPINION AND ORDER
AARON POLSTER UNITED STATES DISTRICT JUDGE.
case is before the Court on Petitioner John H.C. Black's
Motion to Vacate his sentence pursuant to 28 U.S.C. §
2255. Doc #: 1. Under Rule 4(b) of the Rules Governing
Section 2255 Proceedings in the United States District
The judge who receives the motion must promptly examine it.
If it plainly appears from the motion, 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 reviewed the Petition, along with
the files and records of the case, and concludes that it
plainly appears that Black is not entitled to relief.
Accordingly, pursuant to Rule 4(b), his Petition is summarily
DENIED and the civil case is
DISMISSED WITH PREJUDICE for the following
December 19, 2014, Black pleaded guilty to one count of wire
fraud in violation of 18 U.S.C. § 1343. Doc #:
On March 13, 2015, the Court sentenced Black to 46 months
imprisonment, 3 years supervised release, $1, 217, 260 in
restitution, and a $100 special assessment. Doc #: 19. Black
appealed. Doc #: 23. In his appeal, Black argued that the
Court miscalculated the loss amount attributable to his
fraud. See United States v. Black, 652 F. App'x
376, 377 (6th Cir. 2016). The Sixth Circuit dismissed his
appeal on September 9, 2016. Doc #: 43. The Sixth Circuit
held that the appeal waiver in Black's plea agreement
applied and Black had knowingly and voluntarily waived his
right to appeal his sentence. Black, 652 F.
App'x at 380-82. On January 11, 2017, the Supreme Court
denied Black's petition for a writ of certiorari. Doc #:
45. Black filed the instant motion on December 22, 2017. Doc
to 28 U.S.C. § 2255, a person in federal custody may
move the Court to vacate, set aside, or correct his sentence.
28 U.S.C. § 2255. “A motion brought under §
2255 must allege one of three bases as a threshold standard:
(1) an error of constitutional magnitude; (2) a sentence
imposed outside the statutory limits; or (3) an error of fact
or law that was so fundamental as to render the entire
proceeding invalid.” United States v. Doyle,
631 F.3d 815, 817 (6th Cir. 2011) (quoting Weinberger v.
United States, 268 F.3d 346, 351 (6th Cir.2001)). Black
makes four arguments in his motion to vacate his sentence:
(1) the Court erred by not considering Black's mental
health at the time of the alleged crime; (2) the Court erred
by not independently performing a loss calculation in
determining the amount of restitution; (3) his trial counsel
was ineffective for failing to investigate Interferon's
effect on Black's mental state; and (4) his trial counsel
was ineffective for failing to argue the actual loss value
and assist the Court in making an independent calculation.
The Court will address each argument in turn.
begin, Black's first two arguments are barred by the
waiver in his plea agreement. See Doc #: 7.
Black's plea agreement clearly states that Black waived
his right “to challenge the conviction or sentence
collaterally through a post-conviction proceeding, including
a proceeding under 28 U.S.C. § 2255.” Plea
Agreement ¶ 18. However, even when the terms of a waiver
are clear, “[s]uch waivers are not absolute . . . as
they must be made knowingly and voluntarily.”
United States v. Gibney, 519 F.3d 301, 306 (6th Cir.
2008) (citation omitted). To ensure that a waiver is made
knowingly and voluntarily, Rule 11 requires the Court to
confirm that the defendant understands “the terms of
any plea-agreement provision waiving the right to appeal or
to collaterally attack the sentence” prior to accepting
a guilty plea. Fed. R. Crim. Pro 11(b)(1)(N). At his change
of plea hearing, Black acknowledged to the Court that he
understood that his plea agreement waived his right to file
post-conviction motions. Doc #: 30 at 9-10. Thus, Black's
first two arguments are barred by Paragraph 18 of his plea
last two arguments are claims of ineffective assistance of
counsel. A defendant claiming ineffective assistance of
counsel must demonstrate that (1) counsel's
representation fell below an objective standard of
reasonableness and (2) that the deficient performance
prejudiced the defense. Strickland v. Washington,
466 U.S. 668, 687-88 (1984). In order to establish prejudice
on a § 2255 motion, Black must show a reasonable
probability that, but for his counsel's errors,
Black's sentence would have been different. Id.
first contends that his counsel failed to appropriately
investigate the effect of Interferon on Black's mental
state. Mot. 8. Black contends that his counsel did not
properly investigate the evidence showing that Black's
mental state was altered by his use of the Hepatitis-C drug
Interferon. Id. Had his counsel done so, Black
argues that he would not have accepted the plea deal.
Id. at 11. The record does not support Black's
assertions. Black acknowledged in his plea agreement that his
attorney had advised him of his:
Constitutional and other trial and appeal rights, the nature
of the charges, the elements of the offenses the United
States would have to prove at trial, the evidence the United
States would present at such trial, [and] possible defenses
Plea ¶ 27. Further, Black's claim that his counsel
did not investigate the effect that Interferon had on his
mental state is belied by the Pre-Sentence Report and the
transcript from his sentencing hearing. See PSR 12
and Sent. Trans. 9-39. Black's counsel called Dr. Glenn
Treisman, a psychiatrist from John Hopkins, to testify to the
potential effects of Interferon at Black's sentencing.
Sent. Trans. 6. The Court considered this evidence in
determining the appropriate sentence for Black. Notably,
based on the testimony at sentencing, the Court opined that
while Black's medication may have contributed to his
behavior, it appeared that the conduct at issue began before
Black starting taking Interferon. Sent. Trans. 55. The time
and attention devoted to exploring this issue prior to and at
sentencing is sufficient evidence that Black's counsel
investigated the Interferon issue. Thus, Black's claim is
lastly claims that his counsel was ineffective for failing to
investigate the loss calculations used at sentencing. Mot.
12. Paragraph 22 of Black's plea agreement listed the
owed Restitution at $1, 217, 260. Plea ¶ 22. Black
acknowledged at his plea hearing that he had read the
agreement carefully and discussed it with his counsel before
signing it. Plea Trans. 6. Black also orally acknowledged the
loss amount at the plea hearing. Plea Trans. 10. (THE COURT:
And I'm going to order you to make full restitution in
the amount of $1, 217, 260 to Alotech Limited. Do you
understand that? THE DEFENDANT: Yes, Your Honor.). The law is
clear that sworn representations such as those given by Black
at his plea hearing “carry a strong presumption of
verity” and “constitute a formidable barrier
against any subsequent ...