United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION AND ORDER
C. Reeves United States District Judge.
matter is pending for consideration of Defendant Adrian
Wesley Campbell's motion to vacate, set aside, or correct
his sentence under 28 U.S.C. § 2255. [Record No. 131] To
the extent Campbell seeks re-sentencing, his motion will be
August 27, 2014, a grand jury returned an indictment charging
Campbell and others with one count of conspiring to
distribute 50 kilograms or more of marijuana in violation of
21 U.S.C. §§ 841(a)(1), 846, and three counts of
using a communications facility in committing a felony in
violation of 21 U.S.C. § 843(b). [Record No. 1] Campbell
later pleaded guilty to count one (i.e., conspiring to
distribute 50 kilograms or more of marijuana). [Record No.
64, 68] Thereafter, Campbell was sentenced to a 190-month
term of incarceration, followed by 6 years of supervised
release. [Record No. 89] Campbell filed a direct appeal,
which was dismissed by the Sixth Circuit because of the plea
agreement's appellate-review waiver. [Record Nos. 91,
19, 2016, Campbell timely filed a motion to vacate, set
aside, or correct his sentence under 28 U.S.C. § 2255.
[Record No. 131] The motion alleges his improper
classification as a career offender, ineffective assistance
of trial counsel for failing to raise claims under
Johnson v. United States, 135 S.Ct. 2551 (2015), and
ineffective assistance of appellate counsel for failing to
re-assert Johnson in a reply brief. [Record No. 131]
In accordance with local practice, the motion was referred to
United States Magistrate Judge Robert E. Wier for initial
briefing proceeded on the defendant's § 2255 motion,
Campbell filed multiple motions to supplement, alter, amend,
or relate back under Fed.R.Civ.P. 15(c). [Record Nos. 144,
146] The first two motions, alleging that the federal
statutes under which Campbell was indicted were
unconstitutionally vague, were denied. [Record No. 148]
Undeterred, Campbell sought reconsideration of the Rule 15(c)
motions. [Record No. 149] Reconsideration was denied. [Record
No. 150] Campbell then filed a third Rule 15(c) motion, this
time based upon the Supreme Court's decision in
Mathis v. United States, 136 S.Ct. 2243 (2016).
[Record No. 151]
third motion was addressed (and denied) in Magistrate Judge
Wier's December 20, 2016, Recommended Disposition.
[Record No. 152] Notwithstanding Campbell's mounting
history of frivolous filings, the Recommended Disposition
found merit in his claim of ineffective assistance of counsel
during sentencing. In light of the Magistrate Judge's
Recommendation, the United States sought extensions to file
objections, which were granted. [Record Nos. 154-56] The
matter is now ripe for review.
raises three arguments for relief, all bearing on the
propriety of his sentence rather than on his underlying
decision to plead guilty plea. The first two arguments are based
on the Supreme Court's holding in Johnson v. United
States, 135 S.Ct. 2551 (2015), which concerned the Armed
Career Criminal Act. Campbell first argues that
Johnson is “beyond the scope” of the
appellate-review waiver contained in his plea agreement.
[Record No. 131-1 at 2] He does little to extrapolate, but
this argument appears to lay a foundation for his second
argument: his appellate counsel was ineffective for failure
to re-assert Johnson in his reply brief.
[Id.] Neither argument has merit because Campbell
was not convicted under the Armed Career Criminal
third argument-ineffective assistance of counsel at
sentencing-is the most substantive. He alleges that counsel
failed to provide a meaningful argument against application
of the career offender guideline enhancement. Specifically,
Campbell claims that because Kentucky third-degree assault
convictions, Kentucky Revised Statute (“KRS”)
§ 508.025, may be the result of reckless conduct, his
convictioncannot count as a predicate offense. Upon review,
the Court finds merit in Campbell's third argument, and
agrees with the Magistrate Judge's Recommended
Disposition. Accordingly, Campbell will be
Strickland v. Washington, 466 U.S. 668, 687 (1984),
a party claiming ineffective assistance of counsel must prove
both deficient performance and prejudice. Specifically, a
movant must show that (1) “counsel's representation
fell below an objective standard of reasonableness” and
(2) “there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the
proceeding would have been different.” Howard v.
United States, 743 F.3d 459, 463-64 (6th Cir. 2014)
(quoting Strickland, 466 U.S. at 687).
respect to counsel's performance, the “objective
standard of reasonableness” is considered “in
light of prevailing professional norms.” Bobby v.
Van Hook, 558 U.S. 4, 7 (2009). For example,
“omitting meritless arguments” is not
professionally unreasonable. Coley v. Bagley, 706
F.3d 741, 752 (6th Cir. 2013). Further, “counsel should
be strongly presumed to have rendered adequate assistance and
made all significant decisions in the exercise of reasonable
professional judgment.” Hodges v. Colson, 727
F.3d 517, 542 (6th Cir. 2013) (quoting Cullen v.
Pinholster, 563 U.S. 170, 189, (2011)) (quotation marks
Strickland's second prong (i.e., prejudice), the
defendant need only show a “reasonable
probability” that the result would be different, which
is “less than a preponderance of the evidence.”
Howard, 743 F.3d at 64 (quoting Joseph v.
Coyle, 469 F.3d 441, 459 (6th Cir. 2006) (quotation
marks omitted)). “[A] defendant need not show
that counsel's deficient conduct more likely than not
altered the outcome in the case.” Id.
context of sentencing, “any amount of actual jail time
has Sixth Amendment significance.” Glover v. United
States, 531 U.S. 198, 203 (2001). Therefore, to prevail
on his claim, Campbell must show that counsel's
performance fell below an objective standard of
reasonableness, and that, but for that deficiency, there is a
reasonable probability that he would have received a
different sentence. See United States v. Jones, 308
F. App'x 930, 932 (6th Cir. 2009) (articulating
defendant's burden in the sentencing context); United
States v. DeGroat, 102 F. App'x 956, 959-60 (6th
Cir. 2004) (same); Arredondo v. United States, 178
F.3d 778, 783-84 (6th Cir. 1999) (discussing the application
of Strickland to sentencing).
pertinent claim is as follows:
Here, in petitioner's case, under the KRS 508.025 assault
third degree conviction, not all of the conduct proscribed by
the statute qualifies as a crime of violence (reckless
conduct), application of the categorical approach, today, in
light of Begay, Descamps, and Johnson,
precludes a finding that Petitioner has a prior conviction
for a crime of violence. Therefore, the Sentencing Guideline
Manual Section 4B1.1 enhancement does not apply.
[Record No. 131-1 at 5] Campbell claims that,
“counsel's ignorance of [Johnson]
incapacitated the District Court's findings that the
modified categorical approach as well as the categorical
approach applied to the KRS 580.025 conviction.”
[Id. at 9] He goes on:
[T]he prior plea agreement in the KRS 508.025 conviction
never presented what mental state Petitioner entered a guilty
plea for the [sic] KRS 508.025 conviction was not clear for
the District Court to conclude that categorically the
conviction was prototypical conduct suitable under
§4B1.2 to sustain an enhanced sentence under
[Id. at 10] Despite conflating Johnson and
Descamps, 133 S.Ct. 2276 (2013), Campbell makes a
colorable claim that his past conviction for third-degree
assault should not qualify as a predicate offense for
purposes of the career offender enhancement.
correctly argues that, under circuit precedent,
Descamps and the categorical approach apply to the
Sentencing Guidelines. “Whether a conviction is a
‘violent felony' under the ACCA is analyzed in the
same way as whether a conviction is a ‘crime of
violence' under the United States Sentencing Guidelines
(“U.S.S.G.”) § 4B1.2(a).” United
States v. McMurray, 653 F.3d 367, 371 n.1 (6th Cir.
2011) (quoting United States v. Gibbs, 626 F.3d 344,
352 n. 6 (6th Cir. 2010)); see also United States v.
Covington, 738 F.3d 759, 762 (6th Cir. 2014) (applying
Descamps when determining whether a prior offense
qualifies under U.S.S.G. § 4B1.2(a)); United States
v. Denson, 728 F.3d 603, 612 (6th Cir. 2013) (same).
is also right to challenge Kentucky third-degree assault in
light of Begay v. United States, 553 U.S. 137
(2008). Begay established a “purposeful,
violent, and aggressive” standard for “use of
physical force” predicate offenses. Id. at
148. Kentucky third-degree assault may be committed through
recklessness conduct, and under Kentucky law, reckless
conduct is not purposeful conduct. See KRS §
501.020 (definition of mental states). Relying upon
Begay, the Sixth Circuit in United States v.
McMurray held that “the ‘use of physical
force' clause of the ACCA, § 924(e)(2)(B)(i),
requires more than reckless conduct.” 653 F.3d 367, 375
(6th Cir. 2011) (citing Leocal v. Ashcroft, 543 U.S.
1, 9-11 (2004). Jones v. United States, reaffirmed
McMurray, holding that “[w]hen a crime
requires only the mens rea of recklessness, it cannot qualify
under the ‘use of physical force' subsection of the
ACCA.” 689 F.3d 621, 626 (6th Cir. 2012).
2013, Campbell pleaded guilty to Kentucky third-degree
assault under KRS § 580.025. Under the statute, a person
may commit assault either “[r]ecklessly, with a deadly
weapon or dangerous instrument” or
“intentionally.” Therefore, this conviction
required scrutiny to ensure it could be counted as use of