CHARLES R. SIMPSON, III, Senior District Judge.
This matter is before the Court on a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 (DN 64) filed pro se by Defendant Mario Compean ("Petitioner") along with an accompanying motion for appointment of counsel pursuant to 18 U.S.C. § 3006A. In accordance with 28 U.S.C. § 636(b)(1)(A), the Court referred the matter to United States Magistrate Judge Dave Whalin for proposed findings of facts and recommendations. In his Report and Recommendation (the "Report"), Judge Whalin recommends that Petitioner's motion should be denied on the ground that he has failed to establish that his conviction resulted from a constitutional violation. For the reasons set forth below, the Court agrees with the Report and will therefore deny Petitioner's § 2255 motion. Furthermore, because the Court concludes that the interests of justice do not require appointment of counsel, the Court will deny Petitioner's motion for appointment of counsel.
On March 2, 2007, Petitioner was convicted by a jury of: 1) conspiracy to possess and distribute cocaine in violation of 21 U.S.C. § 846; and 2) aiding and abetting possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1). (Jury Verdict, DN 116). On July 9, 2007, this Court sentenced Petitioner to serve 235 months of imprisonment followed by a five-year term of supervised release. (Commitment Order, DN 141, at 3). Petitioner subsequently appealed his conviction and sentence on the grounds that the prosecutor had made several improper comments during closing argument and that the district judge did not properly consider all relevant sentencing factors under 18 U.S.C. § 3553(a). On March 24, 2009, the Sixth Circuit affirmed Petitioner's conviction but reversed his sentence and remanded for more "detailed consideration of the § 3553(a) [sentencing] factors." United States v. Delgadillo, 318 Fed.Appx. 380, 387 (6th Cir. 2009) (DN 167).
On remand, we carefully reevaluated Petitioner's sentence in light of all relevant § 3553(a) sentencing factors but ultimately decided to reimpose his 235-month term of imprisonment. (Resentencing Hrg. Transcript, DN 209, at 58-74). Petitioner once again appealed his sentence, this time arguing that it was procedurally and substantively unreasonable to the extent that it was based on clearly erroneous findings of fact and failed to consider numerous sentencing factors. (Order, DN 226, at 1). On appeal, the Sixth Circuit rejected these arguments and affirmed Petitioner's sentence. (Order, DN 226, at 2-3).
Shortly thereafter, Petitioner filed the present motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255, arguing that his conviction must be set aside on the basis of several alleged constitutional violations. Specifically, Petitioner's § 2255 motion asserts that: 1) his trial counsel rendered ineffective assistance by failing to advise him of a plea offer tendered by the government; 2) his appellate counsel rendered ineffective assistance by failing to raise certain arguments on appeal; 3) the prosecutor knowingly introduced perjured testimony at trial; and 4) his sentence constitutes cruel and unusual punishment. In accordance with 28 U.S.C. § 636(b)(1)(A), the Court referred the matter to United States Magistrate Judge Doug Whalin for proposed findings of facts and recommendations. In his Report and Recommendation (the "Report"), Judge Whalin recommends that the Court deny Petitioner's § 2255 motion on the ground that he has failed to establish that his conviction resulted from a constitutional violation.
The Report first addresses Petitioner's claim that his sentence was excessive insofar as it was based on factual misrepresentations made by the prosecutor at his sentencing hearing. Without reaching the merits, the Report concludes that Petitioner's excessive sentence claim cannot serve as the basis for his § 2255 motion because Petitioner had previously litigated a similar, if not identical, claim on direct appeal. According to the Report, Petitioner argued on direct appeal that "his sentence is unreasonable both procedurally and substantively because the District Court relied on clearly erroneous findings of fact..." (Report, DN 246, at 6). While acknowledging that Petitioner has "slightly change[d] his argument" by "alleg[ing] that the prosecutor made knowing misstatements during his re-sentencing, " the Report nevertheless concludes that "the fundamental nature of the claim of an unreasonable sentence remains unchanged." (Report, DN 246, at 6). Because "[a] § 2255 motion may not be used to relitigate an issue that was raised on appeal absent highly exceptional circumstances, " Dupont v. United States, 76 F.3d 108, 110 (6th Cir. 1996), the Report therefore recommends that the Court deny Petitioner's excessive sentence claim.
The Report next addresses Petitioner's claim that his appellate counsel rendered ineffective assistance by failing to raise a claim of prosecutorial misconduct on direct appeal, and in so doing also addresses Petitioner's underlying claim of prosecutorial misconduct. According to Petitioner, his appellate counsel should have argued on appeal that his conviction should be reversed because the prosecutor had knowingly introduced perjured testimony at trial. As the Report points out, however, Petitioner's prosecutorial misconduct claim was based entirely on inconsistencies between the testimony of various witnesses and thus in no way demonstrated that the prosecutor actually knew the falsity of the allegedly perjured testimony. After citing Wilson v. Parker, 515 F.3d 682 (6th Cir. 2008), for a statement of the appropriate standard of review for claims of ineffective assistance of appellate counsel, the Report concludes that Petitioner "failed to satisfy either prong of the Strickland test" because 1) counsel was not deficient for failing to raise the "inherently weak" claim of prosecutorial misconduct; and 2) Petitioner failed to establish that the result of his appeal would have been different had his appellate counsel raised the claim. Thus, the Report recommends that the Court deny Petitioner's ineffective assistance of appellate counsel claim as well as the underlying prosecutorial misconduct claim.
The final claim addressed by the Report is Petitioner's claim that his trial counsel rendered ineffective assistance by failing to inform him of a plea offer tendered by the government. According to Petitioner, he fully intended to accept responsibility for his actions by pleading guilty but his attorney "never disclosed... that the Government had proposed a plea offer..." (DN 261 at ¶ 8). Petitioner insists that, had he been made aware of the government's offer, he would have definitely accepted it, thereby reducing his sentencing exposure and likely resulting in a substantially lesser sentence. To support this claim, Petitioner supplemented his § 2255 motion with a personal affidavit stating, inter alia, that:
1. His attorney failed to advise him that there were advantages in pursuing the plea agreement, including the fact that "there was a sentence reduction for acceptance of responsibility." (Petitioner Affidavit, DN 261, at 1).
2. His attorney failed to inform him that the "Government had proffered a plea..." and "never initiated a conversation... about a plea agreement." (Petitioner Affidavit at 1).
3. Had he been aware of the possibility of a plea agreement, Petitioner would have insisted that his attorney approach the government to negotiate a plea agreement. (Petitioner Affidavit at 2).
Based on his affidavit, Petition claims that his attorney clearly rendered ineffective assistance by failing to adequately represent his interests in the plea negotiation process.
Notwithstanding Petitioner's affidavit, the Report concludes that Petitioner failed to satisfy the "heavy burden" of establishing a claim of ineffective assistance of counsel based on an attorney's failure to inform his client of a plea offer. Relying on Guerrero v. United States, 383 F.3d 409 (6th Cir. 2004), the Report concluded that, in order for his ineffective assistance claim to be viable, Petitioner needed to establish that: 1) the government extended a formal offer to enter into a plea agreement; 2) Petitioner's counsel failed to inform him of the government's offer; and 3) Petitioner would have accepted the government's offer, thereby ultimately reducing the length of his sentence. Based on the record of the trial court proceedings as well as an undisputed affidavit of Petitioner's attorney stating that he had discussed the possibility of a plea offer with Petitioner, ...