United States District Court, N.D. Ohio, Eastern Division
ORDER AND JUDGMENT ENTRY
R. ADAMS UNITED STATES DISTRICT JUDGE.
instant matter is before the Court upon Petitioner's
Motion to Vacate, Set Aside, or Correct Sentence by a Person
in Federal Custody, filed pursuant to 28 U.S.C. § 2255.
Doc. 141. The petition is DENIED.
prevail under 28 U.S.C. § 2255, a defendant must show a
‘fundamental defect' in the proceedings which
necessarily results in a complete miscarriage of justice or
an egregious error violative of due process.” Gall
v. United States, 21 F.3d 107, 109 (6th Cir. 1994). A
federal district court may grant relief to a prisoner in
custody only if the petitioner can “demonstrate the
existence of an error of constitutional magnitude which had a
substantial and injurious effect or influence on the guilty
plea or the jury's verdict.” Griffin v. United
States, 330 F.3d 733, 736 (6th Cir. 2003).
Shawn Caldwell raises four grounds for relief in his
petition. In his first, third, and fourth grounds
for relief, Caldwell contends that received ineffective
assistance of trial counsel. In his second ground for relief,
Caldwell contends that his sentence was erroneous because
“bank robbery is not a crime of violence for purposes
of 18 U.S.C. § 924(c). The Court now reviews those
burden to establish an ineffective assistance of counsel
claim is two-fold. Under the standard set forth by the United
States Supreme Court in Strickland v. Washington,
466 U.S. 668 (1984), Petitioner must first show that
counsel's performance was deficient. Pursuant to
Strickland, “deficient” conduct is not
simple error; counsel must have erred so “serious[ly]
that counsel was not functioning as the ‘counsel'
guaranteed...by the Sixth Amendment.” Id. at
687. When evaluating counsel's performance, a court is
required to “indulge a strong presumption that
counsel's conduct falls within the wide range of
reasonable professional assistance; that is, the defendant
must overcome the presumption that, under the circumstances,
the challenged action ‘might be considered sound trial
strategy.'” Id. at 689 (internal citation
deficient conduct is identified, Petitioner must then
demonstrate that counsel's deficient performance
prejudiced his defense. Id. at 692. To demonstrate
prejudice, it is not enough to show that the “errors
had some conceivable effect on the outcome of the
proceeding” as any “act or omission of counsel
would meet this test.” Id. at 693. Instead, a
“defendant must show that there is a reasonable
probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been
different.” Id. at 693. In effect,
counsel's performance must have “caused the
defendant to lose where he would probably have won” by
conduct “so manifestly ineffective that defeat was
snatched from the hands of probable victory.”
United States v. Morrow, 977 F.2d 222, 229 (6th Cir.
1992) (emphasis omitted).
first contends that his counsel was ineffective when he
failed to seek to withdraw his plea following the Sixth
Circuit's remand for resentencing. With respect to this
claim, Caldwell asserts that his guideline range as a career
offender drove his decision to plead guilty. He contends that
once his status as a career offender was altered by a change
in the law, his counsel should have advised him to withdraw
his plea. Ostensibly, Caldwell contends that once his status
as a career offender was removed, he had very little to risk
by going to trial. As the Sixth Circuit has noted,
Caldwell's “assertion that he would not have pled
guilty had he known the sentencing laws would change soon
thereafter is the quintessential example of a tactical
decision rather than an attempt to avoid the consequences of
‘a hastily entered plea made with unsure heart and
confused mind.'” United States v.
Micciche, 165 Fed.Appx. 379, 384 (6th Cir.
2006)(citation omitted). In other words, a subsequent change
to the sentencing guidelines did not provide Caldwell a
proper basis to seek to withdraw his plea. Accordingly, he
cannot demonstrate any error in his counsel's failure to
file a motion to withdraw on his behalf.
third ground for relief, Caldwell contends that his counsel
failed to review the transcript in United States v.
Gooch, Case No. 1:13CR282. Caldwell also contends that
his counsel failed to provide him a copy of this transcript.
Caldwell further alleges his counsel never provided him with
a copy of the presentence report. Caldwell's contentions,
however, are directly refuted by the record.
At the outset of Caldwell's resentencing, the following
occurred on the record:
THE COURT: Before we go further, I would like to make certain
everyone has had an opportunity to review all the materials
that I have reviewed and are before the court today. We have,
of course, an original presentence investigation report that
was issued at the time of the original sentencing hearing in
We also have, of course, I am sure you have reviewed the
various appellate opinions addressing the issues in this case
which brings us back here today. I also have reviewed a
sentencing memoranda submitted on behalf of the defendant. I
also have a supplement to that memorandum containing certain
information from the Bureau of Prisons.
I've received a sentencing memoranda by the government,
as well as a supplemental memoranda by the government. And of
note, the government has incorporated into its sentencing
memoranda a request for a sentence outside of the guidelines.
It's unclear to me whether the government is requesting
an upward departure or a variance, and perhaps that's a
matter we can address, but in any event, the government does
seek a sentence above the advisory guidelines.
And then lastly, the government, to assist the court,
provided a transcript of the trial proceedings in Case Number
1:13cr282. The case is United States of America versus Eric
Gooch. My assumptions, subject to hearing from the
government, is that -- of course that information is provided
to the court as it relates to possible upward variance or
And it appears having read the transcript that the government
is asking the court to depart or vary upward based upon
uncharged conduct related to three other armed robberies that