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United States v. Tilghman

United States District Court, Sixth Circuit

September 3, 2013

UNITED STATES OF AMERICA, Plaintiff/Respondent,
MARSHALL TILGHMAN, Defendant/Movant. Civil Action No. 10-CV-7143-KSF


KARL S. FORESTER, Senior District Judge.

This matter is before the Court upon the Motion of the Defendant, Marshall Tilghman, pursuant to 28 U.S.C. § 2255, to vacate, set aside, or correct a sentence [DE #60, #62]. Consistent with local practice, this matter was referred to the United States Magistrate Judge for consideration. After reviewing de novo the Magistrate Judge's Recommended Disposition [DE #84] and Defendant's Objections thereto [DE #92], this Court adopts and incorporates the decision of the Magistrate Judge as the opinion of the Court and grants in part and denies in part the motion to vacate, set aside or correct sentence.


Tilghman was indicted by a federal grand jury on September 6, 2007, charging him with four crimes as a result of his involvement in an altercation at the Federal Medical Center in Lexington, Kentucky [DE #1]. In Count 1, Tilghman was charged with assault with intent to murder another inmate in violation 18 U.S.C. § 113(a)(1). Count 2 charged Tilghman with assault with a dangerous weapon with intent to do bodily harm in violation of 18 U.S.C. 113(a)(3). Count 3 charged Tilghman with assault resulting in serious bodily injury to another inmate in violation of 18 U.S.C. § 113(a)(6). Finally, in Count 4, Tilghman was charged with knowing possession of a prohibited object, specifically a shank or homemade knife, designed to be used as a weapon in violation of 18 U.S.C. § 1791(a)(2). At his arraignment on September 17, 2007, Tilghman entered a plea of not guilty, and was remanded to the custody of the United States Marshal pending trial [DE #4].

After a two-day trial beginning on December 3, 2007, Tilghman was convicted of the charges in Counts 3 and 4, and acquitted of the charges in Counts 1 and 2 [DE #23, 28]. The jury also specifically found that Tilghman "possessed an eleven by two inch sharpened piece of metal" [DE #28].

At his sentencing on March 7, 2008, Tilghman was sentenced to a 120-month term of imprisonment on Count 3 and a 60-month term of imprisonment on Count 4, to run concurrently with each other for a total term of 120 months [DE #38]. Additionally, the Court imposed a six-year term of supervised release, consisting of "three (3) years on each of Counts 3 and 4, to run consecutively to each other" [DE #38].

Following his conviction, and under the representation of new counsel, Tilghman appealed the conviction and sentence to the Sixth Circuit Court of Appeals [DE # 40]. He argued insufficient evidence to support both convictions. He also challenged his sentence as procedurally unreasonable in miscalculating the guideline range and improper because the Court allegedly erroneously classified him as a career offender. His appeal was denied by the Sixth Circuit on June 9, 2009 [DE ##52, 53], and the Supreme Court denied his petition for certiorari on October 13, 2009 [DE #56].

On October 15, 2010, Tilghman filed the instant § 2255 motion [DE #60]. In his motion, Tilghman sets forth several claims for relief. Specifically, he alleges five claims of ineffective assistance of counsel, two claims of prosecutorial misconduct, and one claim of sentence miscalculation. In support of his claims for ineffective assistance of counsel, Tilghman alleges his counsel was ineffective in the following ways: (1) by "knowingly not allowing defendant's presence in the final phase of choosing the jury:" (2) by failing "to interview or subpoena witnesses for the defendant:" (3) by failing to obtain "written statements given to prison officials from inmate witnesses prior to the FBI 302's on or about November 13, 2007;" (4) by failing to admit into evidence "prosecution on witness statements... so that [they] could be examined by the jury:" and (5) by failing to present "testimony to explain the victims' bipoloar effects on his moods and thoughts." As to his claims for prosecutorial misconduct, Tilghman contends that the prosecutor "knowingly allow[ed] inmate witnesses to testify under penalty of perjury as to whether they were receiving favors for such testimony" and by "knowingly keeping the FBI 302 witness statements out of evidence but referred to them periodically during cross-examination, knowing a reasonably [sic] jury would have seen the duplication and word for word by each inmate witness for the prosecution." Finally, with respect to his claim for sentence miscalculation, Tilghman argues that the Court erred when sentencing him to two consecutive three-year terms of supervised release instead of two concurrent three-year terms.


In his Recommended Disposition of January 14, 2013, the Magistrate Judge first considered Tilghman's claims based on ineffective assistance of counsel. Reviewing the record and the applicable law, including Strickland v. Washington, 466 U.S. 668 (1984) (requiring a showing that counsel's performance was deficient and the defendant suffered prejudice), the Magistrate Judge concluded that none of the ineffective assistance of counsel grounds set forth by Tilghman warranted relief Under Strickland, the Magistrate Judge explained that Tilghman must prove both counsel's deficiency and resulting prejudice. Of particular note to the Magistrate Judge was the Strickland court's care to maintain "the wide latitude counsel must have in making tactical decisions." Id. at 689.

First, the Magistrate Judge found that Tilghman's first and third ineffective assistance of counsel claims failed for lack of factual support. While Tilghman alleges that he was not present during critical stages of jury selection, the sworn statement from defense counsel stated that Tilghman and his counsel were present and involved in all critical stages and discretionary decisions of the jury selection process. Because Tilghman failed to provide any evidence to the contrary, the Magistrate Judge found no factual basis for his claim. Tilghman's third claim, that counsel failed to obtain witness statements, was found similarly lacking in factual support. With Tilghman offering no contrary evidence, the sworn statement of defense counsel praised the United States' "extraordinary generosity with early presentation of all witness statements and follow up witness statements."

Tilghman's second ineffective assistance of counsel claim is based on his claim that counsel failed to interview or subpoena witnesses. The Magistrate Judge, however, found that Tilghman failed to identify any specific witnesses whose testimony would be favorable, and noted that defense counsel's sworn statements showed efforts to speak with all witnesses Tilghman had identified. In addition to the lack of factual support for this claim, the Magistrate Judge, citing the wide berth given to strategic trial decisions set out in Strickland, determined that this claim lacked any showing of prejudice. As a result, the Magistrate Judge recommended that this claim be denied.

Similar concerns about prejudice were cited in the Magistrate Judge's recommendation that Tilghman's fourth and fifth claims alleging ineffective assistance of counsel be denied. While Tilghman's fourth claim, alleging ineffectiveness in failing to admit statements from prosecution witnesses into evidence, had some factual basis, the Magistrate Judge determined that counsel's cross examination of these witnesses was thorough and provided a proper basis for the jury to make a credibility determination. Thus, failing to admit the witness statements did not result in any prejudice to Tilghman. Similarly, Tilghman's fifth ineffective assistance of counsel claim, alleging that his counsel failed to admit into evidence the victim's bipolar disorder, was also cured by the usefulness of direct and cross examination of the witness. Furthermore, the Magistrate Judge concluded that any speculative assertion about the victim's mental condition could not support habeas relief. For all these reasons, the Magistrate Judge recommended that Tilghman's ineffective assistance of counsel claims be denied.

The Magistrate Judge then turned to Tilghman's procedural misconduct claims. According to the Magistrate Judge, these claims are procedurally improper because they were not addressed on direct appeal. There is no dispute that Tilghman did not raise these claims in his appeal, and to assert a claim for the first time in a § 2255 motion, he must show cause for the default and prejudice. Bousley v. United States, 523 U.S. 614, 622 (1998); United States v. Frady, 456 U.S. 152, 167 (1982); Regalado v. United States, 334 F.3d 520, 528 (6th Cir. 2003). Because Tilghman failed to present any ...

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