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Ricks v. United States

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

February 22, 2018

KEITH RICKS, Petitioner,



         This matter is before the Court on Petitioner's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. §2255 (ECF #1861). The Government filed a Response in Opposition to Petitioner's Motion (ECF#1868). Petitioner filed a Reply to Government's Response (ECF#1873). For the following reasons, the Court denies Petitioner's Petition.


         Petitioner was indicted on September 11, 2013, with fifty-nine co-defendants in a Superseding Indictment. Petitioner was charged with Conspiracy to Distribute Heroin and Use of a Telephone to Facilitate Drug Trafficking. The case proceeded to trial. Petitioner was convicted of the Heroin Trafficking Conspiracy and eight counts of Using a Telephone to Facilitate Drug Trafficking. The jury returned a Special Verdict finding that the conspiracy involved one kilogram or more of heroin. Based on that heroin quantity and Petitioner's two previous convictions, he was subject to a mandatory minimum term of life in prison. On September 14, 2015, Petitioner was sentenced to a life sentence on Count One and 48 months' imprisonment on each of the remaining Counts.

         Petitioner filed a timely Notice of Appeal. The Sixth Circuit Court of Appeals affirmed the conviction and sentence on October 31, 2016. Petitioner filed a Petition for Rehearing en banc on November 18, 2016, which was denied on January 27, 2017. On November 3, 2017, Petitioner filed the instant Motion to Vacate under 28 U.S.C. § 2255 asserting five claims. Claims One, Two, Four and Five assert ineffective assistance of counsel and Claim Three asserts prosecutorial misconduct.


         Section 2255 of Title 28, United States Code, provides:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

         In order to prevail upon a §2255 motion, the movant must allege as a basis for relief: ‘(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. '” Mallett v. United States, 334 F.3d 496-497 (6th Cir. 2003), quoting Weinberger v. United States, 268 F.3d 346, 351 (6th Cir.2001).


         To make out an ineffective assistance of counsel claim, the petitioner must demonstrate both inadequate performance by counsel and prejudice resulting from that inadequate performance. Strickland v. Washington, 466 U.S. 668, 687 (1984). “The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result.” Id. at 686. Indeed, under the test set forth in Strickland, the defendant must establish deficient performance and prejudice:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable.

Id. at 687.

         In Claim One, Petitioner argues that counsel did not object to or challenge the amount of narcotics and thus provided ineffective assistance. On direct appeal the Sixth Circuit found that there was sufficient evidence to support Petitioner's conviction for conspiring to distribute in excess of one kilogram of heroin. Where a claim has been raised and decided on direct review, it cannot be relitigated under Section 2255 unless there has been an intervening change in the governing substantive law. Withrow v. Williams, 507 U.S. 680, 721-21 (1993); Oliver v. United States, 90 F.3d 177 (6th Cir. 1996). The Court agrees with Respondent that since this claim has already been considered ...

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