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Wise v. United States

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

July 11, 2019

JACK D. WISE, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER

          DONALD C. NUGENT, UNITED STATES DISTRICT JUDGE

         Defendant filed a Motion to Vacate, Set Aside, or Correct Sentence pursuant to Title 28, United States Code, Section 2255. For the reasons below, Defendant's motion is denied.

         I. Procedural History

         On May 3, 2017, the Grand Jury returned an indictment against the Defendant for six counts. Counts 1, 2, and 3 charged the Defendant with violations of Title 21, United States Code, Section 841(a)(1) and (b)(1)(C). Count 4 charged the Defendant with a violation of Title 21, United States Code, Section 841(a)(1) and (b)(1)(B). Counts 5 and 6 charged the Defendant with violations of Title 18, United States Code, Section 922(g)(1) and 924(c)(1)(A)(i). (Doc #:1 at PageID#:l-4). On November 17, 2017, the Defendant pled guilty to Counts 4 and 6 of the Indictment pursuant to a written plea agreement. (Doc #: 14). On March 29, 2018, the Court sentenced the Defendant to 70 months on Count 4 and 60 months on Count 6 with the terms to run consecutive to each other for a total sentence of 130 months imprisonment. (Doc #: 19). The Defendant did not file an appeal. On February 28, 2019, Defendant filed the Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. (Case: 5:19-cv-00463-DCN, Doc#: 1-1).

         In his plea agreement, Defendant reserved the following issues for appeal and post-conviction attack:

Defendant acknowledges having been advised by counsel of Defendant's rights, in limited circumstances, to appeal the conviction or sentence in this case, including the appeal right conferred by 18 U.S.C. § 3742, and to challenge the conviction or sentence collaterally through a post-conviction proceeding, including a proceeding under 28 U.S.C. § 2255. Defendant expressly and voluntarily waives those rights, except as specifically reserved below. Defendant reserves the right to appeal: (a) any punishment in excess of the statutory maximum; or (b) any sentence to the extent it exceeds the maximum of the sentencing imprisonment range determined under the advisory Sentencing Guidelines in accordance with the sentencing stipulations and computations in this agreement, using the Criminal History Category found applicable by the Court. Nothing in this paragraph shall act as a bar to Defendant perfecting any legal remedies Defendant may otherwise have on appeal or collateral attack with respect to claims of ineffective assistance of counsel or prosecutorial misconduct.

(Doc. #14: Plea Agreement, PageID 25-35).

         II. Analysis

         A. The Standard for a Section 2255 Motion to Vacate.

         Title 28, United States Code, Section 2255, sets forth the four grounds upon which a federal prisoner may base a claim for relief: (1) "that the sentence was imposed in violation of the Constitution or the laws of the United States;" (2) "that the court was without jurisdiction to impose such sentence;" (3) "that the sentence was in excess of the maximum authorized by law;" or (4) that the sentence "is otherwise subject to collateral attack." Hill v. United States, 368 U.S. 424, 426-27 (1962). To prevail on a Section 2255 motion, Defendant must prove by a preponderance of the evidence that his constitutional rights were denied or infringed. United States v. Wright, 624 F.2d 557, 559 (5th Cir. 1980).

         It is well settled that a proper Section 2255 motion does not reach alleged errors that are not of a constitutional or jurisdictional magnitude and that could have been reached by a direct appeal. Stone v. Powell, 428 U.S. 465, 477 (1976). To "obtain collateral relief a prisoner must clear a significantly higher hurdle than would exist on direct appeal." United States v. Frady, 456 U.S. 152, 166 (1982). "Once the defendant's chance to appeal has been waived or exhausted, we are entitled to presume he stands fairly and finally convicted." Id. at 164. In Defendant's Motion to Vacate, he argues that he received ineffective assistance of counsel. Defendant's claims are discussed below.

         B. Ineffective Assistance of Counsel.

         1. The Standard for Ineffective Assistance of Counsel.

         Defendant alleged that he received ineffective assistance of counsel throughout the case. A defendant seeking to establish ineffective assistance of counsel must satisfy the standards set forth in Strickland v. Washington, 466 U.S. 668 (1984), wherein the Supreme Court formulated the following test:

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 ...

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