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United States v. Elliott

United States District Court, E.D. Kentucky. Covington

July 18, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
JOHN ELLIOTT, Defendant. Civil No. 14-7340-DCR-JGW.

REPORT AND RECOMMENDATION

J. GREGORY WEHRMAN, Magistrate Judge.

In March 2014, defendant John Elliott filed a pro se motion pursuant to 28 U.S.C. §2255 to vacate or set aside his federal conviction and sentence. Doc. 294. The United States filed its response in opposition in May 2014. Doc. 305. The Court afforded defendant time to file a reply (doc. 295) but defendant did not do so.

Factual and Procedural History

Without having entered into a written plea agreement with the United States, in June 2011 defendant pleaded guilty to one count of conspiracy to commit wire fraud and in return the United States agreed to seek dismissal of the remaining charges. Doc. 144. A few days before sentencing, Judge Reeves issued an order informing the parties he "will consider at the time of sentencing a possible adjustment to the defendant's guideline range based on inadequacy of the defendant's Criminal History Category." Doc. 222.

At defendant's November 2011 sentencing, the United States presented testimony and argued that defendant should receive an increased sentence based on the amount of loss to the victims and due to defendant having obstructed justice by lying to a police officer. The United States also argued that defendant should not receive credit for acceptance of responsibility "due to his challenge to the relevant conduct and obstruction." Doc. 305, p. 2.

Judge Reeves found that a sentencing increase was warranted based on defendant having obstructed justice and also agreed with the United States that defendant was not entitled to a reduction for acceptance of responsibility. The Court also concluded that defendant should receive an upward adjustment based on his extensive criminal history. Judge Reeves ultimately sentenced defendant to 200 months' incarceration. Doc. 232.

Defendant appealed. In April 2013, the Sixth Circuit affirmed. United States v. Elliott, 521 Fed.Appx. 513 (6th Cir. 2013). Defendant filed the pending §2255 motion in March 2014. Doc. 294.

Analysis

Defendant raises ten grounds for relief, the majority of which consist of only one sentence. First, defendant alleges that "[a]t [the] time I entered a guilty plea I was on prescription drugs for psyc[.] reasons and was not on everything and they was [sic] still playing with my meds to find the right dose[.]" Doc. 294, p.

4. Second, defendant alleges that he "received bad advice from [his] lawyer[.]" Id. Third, defendant alleges he "was not promited [sic-presumably "provided"] a defense stragey [sic] meeting with my co[-]defendents [sic] after I ask many times[.]" Id. Fourth, defendant alleges that he "was told if [I] plead guilty to what me and my lawyer talked about I would recive [sic] points taken off for acceptance of responsibility[.]" Id. Fifth, defendant alleges he "ask[ed] my lawyer to call [co-conspirators] Troy Watts, Brian Hancock, along with the Springdale police officer to testify. That would of [sic] cleared up false statements that was [sic] made. I ask many times and he refused to do so." Id. at p.5. Sixth, defendant alleges he "was told I would see a mental health counselor [sic] before court. I was also told with my plea I would recive [sic] a full mental health evaluation along with a drug assessment. I still haven[]t to this day!" Id. Seventh, defendant alleges he "sent my appeal lawyer e-mails from USP Hazelton and ask or should I say told her not to place [a] certain thing in my appeal that she did." Id. Eighth, defendant alleges that "[s]ince the time of my plea I have come along [sic] way with my reading skills up in till [sic] then and about a year after I read on a 3rd grade level." Ninth, defendant alleges that he "was given a 2 point enhancement for obstruction of Justice for a truthful statement that I gave the Springdale office my lawyer told me not to fight it and I would get back on the appeal for sure' if I didn[]t[.]" Id. Finally, defendant alleges that he "[a]lso ask my lawyer to go on and file a petition for certiorari with Supreme Court and was told I no longer had that right[.]" Id.

"A prisoner seeking relief under § 2255 must allege as a basis for relief:

(1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law that was so fundamental as to render the entire proceeding invalid." Pough v. United States, 442 F.3d 959, 964 (6th Cir. 2006). To be cognizable under §2255, an alleged constitutional error must be of such magnitude as to have "had a substantial and injurious effect or influence on the proceedings." Watson v. United States, 165 F.3d 486, 488 (6th Cir. 1999). "Conclusory statements are insufficient to warrant relief under Section 2255." Combs v. United States, 2009 WL 943526, at *3 (M.D. Tenn. April 6, 2009). See also Wogenstahl v. Mitchell, 668 F.3d 307, 343 (6th Cir. 2012) ("Merely conclusory allegations of ineffective assistance, however... are insufficient to state a constitutional claim."); United States v. Dyess 730 F.3d 354, 359 (4th Cir. 2013) ("Thus, vague and conclusory allegations contained in a §2255 petition may be disposed of without further investigation by the District Court.") (internal quotation marks omitted).

In order to demonstrate ineffective assistance of counsel, a petitioner must make two showings. "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." Strickland v. Washington, 466 U.S.668, 687 (1984). A court need not address both prongs if a petitioner fails to make a sufficient showing on either prong. See, e.g., United States v. DeGroat, 102 Fed.Appx. 956, 959 (6th Cir. 2004). Finally, a reviewing court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance...." Strickland, 466 U.S. at 689.

Using those standards, defendant's claims must fail. The first claim, involving defendant allegedly being on medication at the time of his plea, is fatally conclusory and vague as it does not specify what medication(s) defendant was allegedly taking or how the medication(s) purportedly affected defendant's ability to plead guilty.[1] Defendant's related claim that he was told he would see a mental health counselor and would receive a mental health evaluation similarly fails because defendant does not allege how the lack of a mental health evaluation affected his ...


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