United States District Court, E.D. Kentucky, Lexington
REPORT AND RECOMMENDATION
J. GREGORY WEHRMAN, Magistrate Judge.
Pending is defendant Eric Jackson's pro se motion pursuant to 28 U.S.C. §2255. Doc. 122. After examining the record and applicable law, the Court recommends that the motion be denied.
I. Factual and Procedural History
In July 2013 defendant entered into a plea agreement with the United States whereby defendant agreed to plead guilty to one count of conspiracy to distribute 100 grams or more of heroin. Doc. 78. The plea agreement provided that defendant had a prior felony drug conviction and, therefore, was subject to a statutory minimum ten year sentence. Id. at p. 3. Section eight of the plea agreement provided that defendant "waives the right to appeal the guilty plea, conviction, and sentence. Except for claims of ineffective assistance of counsel, the Defendant also waives the right to attack collaterally the guilty plea, conviction, and sentence." Id. Defendant's rearraignment occurred on July 8, 2013, during which he was orally advised of his rights and the most pertinent parts of the plea agreement were discussed and explained. See Doc. 120 (transcript of rearraignment).
In October 2013, defendant was sentenced to the statutory minimum of 120 months' imprisonment. Doc. 105 (judgment); 121 (sentencing transcript). Defendant did not appeal. Defendant filed the pending §2255 motion in August 2014. Doc. 122. The only issue in the motion is defendant's contention that his attorney was ineffective when he failed to ask the Court to apply the safety valve (U.S.S.G. §5C1.2).
"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).
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, "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 has not asserted that he would have gone to trial, absent the alleged error. Instead, defendant contends he was prejudiced because his sentence was increased (in actuality, not decreased below the statutory minimum) by his attorney's failure to seek application of the safety valve.
The statutory basis for the so-called safety valve is 18 U.S.C. §3553(f), which provides in relevant part:
Notwithstanding any other provision of law, in the case of an offense under section 401, 404, or 406 of the Controlled Substances Act (21 U.S.C. 841, 844, 846)... the court shall impose a sentence pursuant to guidelines promulgated by the United States Sentencing Commission... without regard to any statutory minimum sentence, if the court finds at sentencing, after the Government has been afforded the opportunity to make a recommendation, that-
(1) the defendant does not have more than 1 criminal history point, as determined under the sentencing guidelines;
(2) the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to ...