United States District Court, N.D. Ohio, Eastern Division
JACK D. WISE, Petitioner,
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM OPINION AND ORDER
C. NUGENT, UNITED STATES DISTRICT JUDGE
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.
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).
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
(Doc. #14: Plea Agreement, PageID 25-35).
The Standard for a Section 2255 Motion to Vacate.
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).
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.
Ineffective Assistance of Counsel.
The Standard for Ineffective Assistance of Counsel.
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
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