United States District Court, E.D. Kentucky
REPORT AND RECOMMENDATION
J. GREGORY WEHRMAN, Magistrate Judge.
Pending is defendant Bradley Magiera's motion to recharacterize his petition for coram nobis relief as a motion for post-conviction relief under 28 U.S.C. §2255. Doc. 29. After having examined the record and applicable law, the Court recommends that the motion to recharacterize be granted but the underlying §2255 motion be denied as having been untimely filed.
Relevant Factual and Procedural History
In January 2013, pursuant to his guilty plea to one count of failing to register as a sex offender, defendant Bradley Magiera was sentenced to thirty-four months' imprisonment (to run consecutively to related sentences from Indiana and Michigan), to be followed by twenty years of supervised release. Doc. 24. Defendant did not appeal.
The case remained inactive until April 2014, when defendant sent a letter to the Clerk of Court requesting a copy of his sentencing transcript. Doc. 26. The presiding district judge issued an order construing the letter as a motion for a copy of defendant's sentencing transcript and denied the construed motion because defendant did not have any matters pending before the Court. Doc. 25.
In May 2014, defendant filed a "MOTION UNDER THE ALL WRITS ACT... TO FILE A WRIT OF ERROR CORAM NOBIS...." Doc. 27. In his motion, defendant asserted that the Court erred by sentencing him to restrictive conditions of supervised release based on his having committed a sex offense. Defendant also tersely asserted that his counsel had failed to file a requested appeal.
The Court issued an order noting that the Sixth Circuit has made plain that "[a] prisoner in custody is barred from seeking a writ of error coram nobis. " United States v. Johnson, 237 F.3d 751, 755 (6th Cir. 2001). See Doc. 28. Accordingly, because defendant was (and still is) in custody pursuant to the sentence which he is attacking, the Court informed defendant that he was ineligible for coram nobis relief. Id.
Instead of summarily recommending that the motion be dismissed, the Court afforded defendant an opportunity to recharacterize his coram nobis petition as having been filed under 28 U.S.C. §2255. Id. However, the Court bluntly warned defendant that absent application of equitable tolling the motion would be subject to dismissal as having been filed outside the oneyear statute of limitations for seeking §2255 relief. See 28 U.S.C. §2255(f). The Court also cautioned defendant that he was entitled to file only one §2255 motion and, consequently, should raise all claims he believed to be proper in any recharacterized §2255 motion. Doc. 28.
Defendant exercised his option to ask the Court to recharacterize his coram nobis petition as having been brought under §2255. Doc. 29. Defendant elected to not add any new substantive issues. Instead, the recharacterization motion mainly dealt only with defendant's previously raised contention that his attorney failed to file a requested appeal. In addition, defendant made a passing reference to the argument in his initial coram nobis petition that his sentence, specifically his supervised release term and the conditions thereof, was not proper because he was not a sex offender.
Defendant contends equitable tolling should apply to his facially untimely §2255 petition because he was transferred to state custody shortly after being sentenced by this Court and was not permitted to bring his legal materials with him when transferred. Defendant also alleges he did not have access to the legal materials necessary to seek §2255 relief while in state custody. Acting from an abundance of caution, the Court required the United States to respond, doc. 30, which it has done. Doc. 36. The recharacterized §2255 petition is thus ripe for adjudication.
"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).
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). When a defendant has pleaded guilty, the Supreme Court has held that "to satisfy the prejudice' requirement [of Strickland ], the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985). "To demonstrate a reasonable probability that he would have gone to trial, a defendant is required to present evidence apart from a lone assertion that but for counsel's error he would have pleaded not guilty and gone to trial." Parks v. United States, 2013 WL 427256, at *4 (E.D.Tenn. Feb. 4, 2013). 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.
Defendant relies upon Campbell v. United States, 686 F.3d 353 (6th Cir. 2012), to support his main contention- that he is entitled to §2255 relief based on his attorney's failure to file a requested appeal. Campbell indeed stands for the proposition that it is per se ineffective assistance of counsel to fail to file a requested appeal, even if a defendant has waived his appellate rights. Id. at 360 ("We therefore hold that even when a defendant waives all or most of his right to appeal, an attorney who fails to file an appeal that a criminal defendant explicitly requests has, as a matter of law, provided ineffective assistance of counsel that entitles the ...