HANLY A. INGRAM, Magistrate Judge.
On April 16, 2012, Defendant Joey Green, proceeding pro se, filed a motion seeking to vacate his sentence pursuant to 28 U.S.C. § 2255. D.E. 63. The United States filed a response to the § 2255 motion on April 23, 2012, D.E. 65, to which Defendant has filed a reply. D.E. 67. Pursuant to local practice and 28 U.S.C. § 636(b)(1)(B), this matter was referred to the undersigned for a recommended disposition. For the reasons that follow, Defendant has failed to establish that he is entitled to relief pursuant to 28 U.S.C. § 2255. Therefore, the Court RECOMMENDS that his motion be DENIED.
On April 20, 2010, ATF Agent Michael K. Oergel swore to a criminal complaint alleging that Defendant was a convicted felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). On June 10, 2010, a federal grand jury indicted Defendant for possession of: 1) an Inter Ordnance, Model AK-47C, 7.62 mm semiautomatic rifle, bearing serial number 001003; and 2) a Bryco Arms, Model Jennings Nine, 9 mm semiautomatic pistol, bearing serial number 1372994, as well as a forfeiture allegation. D.E. 12. Defendant faced a maximum of ten years of imprisonment, a fine of $250, 000, and three years of supervised release. Id. Magistrate Judge Smith arraigned the Defendant on June 17, 2010, at which time he pled not guilty. D.E. 15.
A. Plea Agreement and Sentencing
Defendant pled guilty to both Count I and the forfeiture count on August 9, 2010. D.E. 22. The parties tendered a proposed plea agreement containing hand-written alterations. D.E. 23. Specifically, Defendant recommended that the base level offense be 24, while the United States recommended it as 26. Id. Defendant also crossed out language waiving his right to appeal and the right to attack collaterally any sentence. Id. Judge Bunning scheduled Defendant's sentencing for November 12, 2010. D.E. 24. On September 8, 2010, Judge Bunning ordered a psychological evaluation of Defendant pursuant to Defendant's oral motion at a status conference. D.E. 31. On November 4, 2010, Defendant moved to continue his sentencing. D.E. 34. Judge Bunning granted the motion. D.E. 35.
Defendant filed his sentencing memorandum on December 20, 2010. D.E. 40. In his sentencing memorandum, Defendant argued that his criminal history category overstated the seriousness of his history. Id. at 3. Defendant stated that his felonies stemmed primarily from minor incidents that were heightened in seriousness when he fled from the police. Id. at 3. The memorandum also highlighted Defendant's history of physical abuse at the hands of his stepfather, his chronic substance abuse, and his mental health issues, including an untreated sleep disorder. Id. at 2-3. It also stated that Defendant's total offense level was 25, including a 2-level increase under U.S. Sentencing Guidelines Manual § 2K2.1(b)(4) and a 3-level decrease for acceptance of responsibility, yielding (presumably in combination with his criminal history category) a sentencing range of 100-120 months. Id. at 4.
At Defendant's sentencing hearing on December 22, 2010, Judge Bunning heard Defendant's objection to the Presentence Report's calculation of a base offense level of 26. D.E. 41. Unlawful possession of firearms yields a base offense level of 26 if "(A) the offense involved a (i) semiautomatic firearm that is capable of accepting a large capacity magazine..." U.S. Sentencing Guidelines Manual § 2K2.1(a)(1). In the application notes to § 2K2.1, a "semiautomatic firearm capable of accepting a large capacity magazine" includes a "semiautomatic firearm that has the ability to fire many rounds without reloading because at the time of the offense... (B) a magazine or similar device that could accept more than 15 rounds of ammunition was in close proximity to the firearm." Id. at cmt. n.2. Defendant based his objection on the argument that the AK-47 and a magazine of ammunition were not in close proximity at the time Defendant's residence was searched, i.e., they were found in separate rooms. D.E. 56 at 3. The United States entered a series of five photographs taken by digital camera as Exhibit A, all of which show Defendant or a family member of Defendant's holding the AK-47 with the magazine attached. Id. at 6-8. The digital camera on which the photographs were found dated the photographs as taken on December 6, 2009, after Defendant had been convicted of multiple felonies. Id. at 10.
Judge Bunning overruled Defendant's objection. D.E. 56 at 10. Judge Bunning considered the photographs, as well as the testimony of a detective present at the execution of the search warrant for Defendant's house. Id. at 10-11. Judge Bunning cited United States v. Villanueva, 315 F.Appx. 845 (11th Cir. 2009), in which the Eleventh Circuit upheld the application of a higher base offense level based on a MySpace photo showing Villanueva holding a gun with a magazine attached taken after he was convicted of a felony. D.E. 56 at 11-12. As additional evidence for overruling Defendant's objection, Judge Bunning noted that the magazine was found in the same closet as the gun. Id. at 12.
Defendant also raised the issue of his psychological evaluation, and asked that Judge Bunning consider it when imposing a sentence. D.E. 56 at 18. Judge Bunning discussed Defendant's psychological evaluation and his history of substance abuse before sentencing Defendant. Id. at 25. Judge Bunning noted that the results of the evaluation needed to be viewed with some skepticism because of the evaluator's indications that Defendant was embellishing symptoms. Id. at 27. Based on Defendant's multiple felonies and history of violating probation, Judge Bunning also disagreed with Defendant that his criminal history category over-represented his actual history. Id. at 26-27.
Judge Bunning accepted the plea agreement proffered by the parties. Id. at 13. He calculated the advisory sentencing range to be 100 to 120 months based on a total offense level of 25 coupled with a criminal history category of V. Id. at 12. Defendant was sentenced to 108 months of imprisonment, with orders that he would participate in 1) the 500-hour residential substance abuse treatment program, if eligible; and 2) a mental health assessment, if deemed necessary, followed by three years of supervised release. D.E. 46.
B. Direct Appeal
On January 4, 2011, Defendant filed a notice of appeal to the Court of Appeals. D.E. 47. Defendant appealed on the ground that his sentence was "substantively unreasonable." D.E. 61 at 2. The Court of Appeals first noted that Defendant conceded the procedural reasonableness of his sentence by not enumerating it in his statement of issues. Id. "Procedural error may include failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence.'" Id. (quoting United States v. Wynn, 579 F.3d 567, 570 (6th Cir. 2009)). Because Defendant did not raise the procedural reasonableness of his sentence, the Court of Appeals specifically stated that his argument regarding the application of U.S. Sentencing Guidelines Manual § 2K2.1(a)(1)(A) was waived. Id. Despite that statement, the Court of Appeals addressed Defendant's § 2K2.1(a)(1)(A) argument and found that his sentence was procedurally reasonable. Id. at 2-3. The Court pointed to testimony before the District Court that a large capacity magazine was found in close proximity to the AK-47, and stated that this justified the base offense level used by the District Court in its sentencing computation. Id. at 2.
Rejecting arguments that were raised, the Court of Appeals also found that Defendant's sentence was substantively reasonable (D.E. 61 at 3) for several reasons. First, the Court noted that a sentence that falls within a properly calculated Sentencing Guidelines range can be "accorded a rebuttable presumption of reasonableness." Id. Second, it stated that in cases like Defendant's wherein the District Court considered all pertinent factors, the burden on a defendant in arguing that an unreasonable or insufficient amount of weight was given to a sentencing factor is much greater. Id. Next, the Court dismissed Defendant's assertion that the District Court improperly considered the "recency" of Defendant's criminal history as inconsequential because he received no criminal history points for "recency." D.E. 61 at 3-4. Finally, the Court of Appeals stated that Defendant's contention that the District Court gave insufficient weight to his mental disorder or personal history was belied by the facts that the District Court ordered a mental evaluation of Defendant, referred to the evaluation, and commented on Defendant's diagnosis during sentencing. D.E. 61 at 4.
The Court filed its order affirming the District Court on February 29, 2012. D.E. 61. The mandate for Defendant's case issued on March 22, 2012. D.E. 62. Defendant did not file a petition for a writ of certiorari to the United States Supreme Court. D.E. 63 at 2.
C. Post-conviction Proceedings
In his motion for relief under 28 U.S.C. § 2255, Defendant asserts one ground for relief: that his sentence was "substantively unreasonable." D.E. 63 at 5. Defendant asserts more specifically that:
The Sentencing range overstates the seriousness of defendants [sic] criminal history based on a [sic] overly inflated base offense level and criminal history, and in doing so the Court improperly gave undue weight to the "recency" of this crime in relation to his release from prison.
Also, the court did not fully consider the statutory factors under §3553, in particular the defendants [sic] psychological history and unfortunate childhood.
The Court ordered the United States to respond (D.E. 64), which it did on April 23, 2012 (D.E. 65). Defendant filed a Reply to the United States's Response on June 11, 2012. D.E. 67. In his Reply, Defendant reiterates the ground for relief stated in his 28 U.S.C. § 2255 motion. Id. at 2-9. However, Defendant also alleges prosecutorial misconduct. Id. at 9-10. He asserts that the Assistant United States Attorney improperly gave her views on Defendant's psychological state, and that she advocated for sentencing enhancements that violated Apprendi v. New Jersey, 530 U.S. 466 (2000), Blakely v. Washington, 542 U.S. 296 (2004), and United States v. Booker, 543 U.S. 220 (2005).
Finally, in the Conclusion to his Reply, Defendant asserts that his trial counsel was ineffective. D.E. 67 at 11. He states specifically that his counsel: 1) should have requested a downward departure under U.S. Sentencing Guidelines Manual § 5K2.13; and 2) should have challenged the calculation of his offense level as a violation of Booker. D.E. 67 at 11. Defendant argues that because of these errors, trial counsel's performance fell below the ...