United States District Court, E.D. Kentucky, Central Division, London
E. Wier, United States Magistrate Judge
Brian Hamilton, is a federal inmate. On August 9, 2017,
Hamilton filed a pro semotion under 28 U.S.C. §
2255. See generally DE 210 (Motion). The United
States responded in opposition. DE 218 (Response). Hamilton
replied. DE 219 (Reply).
normal practice, the District assigned the matter to the
undersigned for a recommended disposition. The Court
determined to conduct an evidentiary hearing and,
accordingly, appointed counsel for Hamilton. See DE
221 (Order). The Court held the evidentiary hearing on
December 15, 2017, DE 230 (Minute Entry Order), and has
carefully evaluated the full record, all briefing, and the
hearing evidence (including three witnesses and three
exhibits). For the following reasons, the Court RECOMMENDS
that the District Judge GRANT § 2255 relief (DE 210)-on
the terms stated below-to the extent Hon. Andrew Stephens,
Hamilton's trial-level counsel, ineffectively assisted
Movant regarding his plea offer, otherwise DENY § 2255
relief (DE 210), and issue no Certificate of Appealability as
to the rejected claims.
failed to effectively inform Hamilton of the terms and
mechanics of a plea offer from the United States,
particularly the import of the prosecutor's plea
deadline. That failure caused Hamilton to forgo a plea deal
that included a third-point reduction, under U.S.S.G. §
3E1.1(b), for timely acceptance of responsibility. The
representation fell below the Strickland performance
standard and prejudiced Hamilton. As such, the Court should
grant the motion, tailor appropriate relief, and give
Hamilton the sentencing benefit of the plea deal that
counsel's ineffective conduct caused to
October 2015, a grand jury indicted Hamilton on one count of
conspiring to defraud the Government (Count 1), four count of
wire fraud (Counts 29-32), and two counts of aggravated
identity theft (Counts 41-42), in violation of 18 U.S.C.
§§ 286, 1343, and 1028(a)(1). DE 1 (Indictment). On
May 10, 2016, Hamilton pleaded guilty to the conspiracy and
one count of both wire fraud and aggravated identity theft.
DE 142 (Minute Entry - Rearraignment). Judge Thapar sentenced
Hamilton to 82-months' imprisonment. DE 193 (Judgment).
Hamilton appealed. DE 195 (Notice). Hamilton, to the court of
appeals, argued “the district court erred by not
awarding him a minor-role reduction or an additional
one-level reduction for acceptance of responsibility.”
DE 207 (6th Cir. Order Dismissing). The Sixth Circuit
dismissed the appeal:
Hamilton consented to a magistrate judge conducting his
rearraignment. The magistrate judge discussed Hamilton's
appellate-waiver provision with him in depth, noting its
breadth. Hamilton stated that he understood the provision,
that he had read it carefully, and that he had reviewed it
with his counsel. That his sentence had not yet been imposed
and he could not know if an error might arise during
sentencing does not render his plea involuntary or unknowing.
See United States v. Coker, 514 F.3d 562, 574 (6th
Cir. 2008). His plea agreement set out sentencing
recommendations, which did not include a minor-role reduction
or an additional one-level reduction for acceptance of
responsibility. If Hamilton wanted to appeal these issues, he
should have preserved his right to appeal them. See
Id. at 1-2.
August 9, 2017, Hamilton timely submitted a § 2255
motion to vacate. DE 210. The motion renews both
direct-appeal contentions and adds the claim that
counsel's ineffective assistance during plea negotiations
cost him an offense level reduction for acceptance of
responsibility. The Government responded. DE 218. Hamilton
replied. DE 219-1. The motion, following a hearing, stands
ripe for review.
STANDARD OF REVIEW
28 U.S.C. § 2255, a federal prisoner may obtain
post-conviction relief if his sentence violates the
Constitution or federal law, the federal court lacked
jurisdiction to impose such sentence, or the sentence exceeds
the maximum authorized by law. 28 U.S.C. § 2255(a);
Mallett v. United States, 334 F.3d 491, 496-97 (6th
Cir. 2003) (“In order to prevail upon a § 2255
motion, the movant 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.'” (quoting
Weinberger v. United States, 268 F.3d 346, 351 (6th
Cir. 2001))). A defendant alleging a constitutional basis
must establish “an error of constitutional
magnitude” and show that the error had a
“substantial and injurious effect or influence on the
proceedings” in order to obtain § 2255 relief.
Watson v. United States, 165 F.3d 486, 488 (6th Cir.
1999) (citing Brecht v. Abrahamson, 113 S.Ct. 1710,
1721-22 (1993)). When alleging a non-constitutional error, a
defendant must prove that the error constituted a
“‘fundamental defect which inherently results in
a complete miscarriage of justice, ' or, an error so
egregious that it amounts to a violation of due
process.” United States v. Ferguson, 918 F.2d
627, 630 (6th Cir. 1990) (quoting Hill v. United
States, 82 S.Ct. 468, 471 (1968)); see also
Watson, 165 F.3d at 488. In making a § 2255 motion,
a movant generally bears the burden of proving factual
assertions by a preponderance of the evidence. McQueen v.
United States, 58 F. App'x 73, 76 (6th Cir. 2003)
(per curiam) (“Defendants seeking to set aside
their sentences pursuant to 28 U.S.C. § 2255 have the
burden of sustaining their contentions by a preponderance of
ALLEGED SENTENCING ERRORS
§ 2255 motion, Hamilton requests relief based on two
sentence validity challenges- both previously dismissed on
direct appeal. Specifically, Defendant contends the
sentencing judge erred by not awarding him a minor-role
reduction and by not overriding the Government's decision
to deny him (by not making the motion) an additional
one-level reduction for acceptance of responsibility. Both
sentencing attacks fail under 28 U.S.C. § 2255, as
waived and otherwise without merit.
Collateral Attack Waiver
Court first notes that Hamilton, in his plea agreement,
waived “the right to attack collaterally the guilty
plea, conviction, and sentence” except for
“claims of ineffective assistance of counsel[.]”
DE 188, at ¶ 13. At least other than “where a
defendant argues that his plea was not knowing or voluntary,
or was the product of ineffective assistance of counsel[,
]” “a defendant's informed and voluntary
waiver of the right to collaterally attack a conviction and
sentence is enforceable.” In re Acosta, 480
F.3d 421, 422 (6th Cir. 2007) (enforcing appeal waiver).
Hamilton, by executing the plea, acknowledged that he
knowingly and voluntarily entered into the agreement and that
he understood its terms after reviewing the full document
with counsel. DE 188, at ¶ 22. At rearraignment,
Hamilton, under oath, confirmed as much to the Court. DE 206,
at 21. Judge Ingram also specifically reviewed the contents
of the collateral attack waiver. Id. at 47-49. The
record repeatedly confirms that Hamilton's responses were
voluntary, verified, and competently made. Id. at
10, 18, 62-63. Solemn declarations in open court “carry
a strong presumption of verity” and “constitute a
formidable barrier” in subsequent collateral
proceedings. Blackledge v. Allison, 97 S.Ct. 1621,
1629 (1977). Considering Defendant's representations in
the plea agreement and during rearraignment, and the
significance of his sworn in-court statements, the Court can
only conclude that Hamilton made an “informed and
voluntary” waiver. In re Acosta, 480 F.3d at
422. Accordingly, and as with the appellate waiver already
enforced, he remains bound by it. Since Hamilton claims no
accompanying ineffective assistance as to the waiver term,
the waiver bars consideration of his role reduction and
sua sponte assistance reduction claims.
given the autonomous ineffective-assistance claim-the Court
addresses the claims' merits. As explained below,
Hamilton's minor role reduction overtures are untenable
and his request for Court usurpation of timely assistance
discretion is baseless.
claims entitlement to a minor role reduction under U.S.S.G.
§ 3B1.2, based on the self-serving claim that he was a
fully subservient actor in the crime. DE 210, at 7. Section
3B1.2(b) provides for a two-level reduction for minor
participants that are “substantially
less culpable than the average participant[.]” U.S.S.G.
§ 3B1.2 cmt. 3(A) (emphasis added). Hamilton's
counsel argued for the same reduction in both formal (DE 182)
and informal (DE 198, at 23-24) PSR objections, as well as at
sentencing. DE 200, at 13-17. In essence, Stephens argued
that Defendant was incarcerated for a year of the alleged
eighteen-month conspiracy, that he rarely aided the
conspiracy-only at the explicit behest of the major
figures-and that he received but minimal monetary benefit.
Hamilton tries to repeat the theories here.
Thapar, then the District Judge assigned to the case,
thoughtfully considered, and then rejected, Hamilton's
minor role claim. See DE 200, at 13, 16-17. The PIR
substantiated the finding that Hamilton was not a minor
participant. See DE 198, at 27-28 (Sealed PIR).
Hamilton objected but presented no evidence to place the
finding in dispute under Rule 32. Judge Thapar recognized
this, as a matter of proof and procedure, and denied the
objection on that basis. See DE 200, at 16. Hamilton
failed to lodge a supported objection then, and there is no
basis for revisiting that issue now, under § 2255.
Sua Sponte Reduction
also bemoans the sentencing court's failure to grant him
a further one-point reduction for acceptance of
responsibility under U.S.S.G. § 3E1.1(b),  notwithstanding
the Government's declination to move for that relief. DE
210, at 5. Defendant generally acknowledges that “the
decision whether to file a motion for an additional one-point
reduction [is committed] to the Government's
discretion.” United States v. Lapsins, 570
F.3d 758, 769 (6th Cir. 2009); see DE 210, at 5.
Nonetheless, Hamilton believes that the sentencing court
should have unilaterally granted the point.
are two narrow exceptions to the deferential posture courts
adopt when reviewing a prosecutor's exercise
of § 3E1.1(b) discretion. “[T]he government may
refuse to move for the third-level reduction so long as the
government's reason for refusal  is not based upon a
constitutionally impermissible factor and  is not
arbitrary.” United States v. Coleman, 627 F.3d
205, 215 (6th Cir. 2010); see United States v.
Collins, 683 F.3d 697, 705 (6th Cir. 2012) (“The
defendant must present objective evidence of an improper
motive or arbitrary action to overcome the government's
decision not to file a § 3E1.1(b) motion.”)
(internal citations omitted). Hamilton does not allege a
constitutional infirmity (nor is there any record suggestion
of one). Hamilton also fails to allege an arbitrary act.
Indeed, the Government identified a valid non-arbitrary basis
for the decision: Hamilton's guilty plea, less than a
week before trial, came too late to preserve prosecutorial
resources. See DE 218, at 5. The factual record
clearly supports the Government's stated rationale and
forecloses Hamilton's conclusory challenge. DE 185 (May 2
Gupta e-mail noting “the United States has already
subpoena'd [sic] and prepared over 20 witnesses for
trial”); DE 200, at 9 (“This is not a trial that
could be prepared in a week, or even two weeks[;] AUSA Gupta
started preparing as early as February or March.”).
Accordingly, the § 3E1.1(b) prosecutorial discretion
presumption controls. See Collins, 683 F.3d at 707
(holding Government's decision to withhold motion
non-arbitrary where prosecution undertook trial-like
preparations to defend a suppression motion); Gilley v.
United States, No. 1:09-CR-45-HSM-WBC, 2016 WL 9344001,
at *6 n.5 (E.D. Tenn. Jan. 28, 2016) (“[A] valid,
non-arbitrary government interest[ ] for withholding a
section 3E1.1(b) motion . . . [is] expressly identified in
the text of the guideline itself-avoiding costs associated
with preparation for a trial on the merits.”). The
Government had valid, non-arbitrary motives for its §
3E1.1(b) approach. Section 2255 offers no relief in this
context. Hamilton does not argue against this, rather
entreating the Court to appropriate prosecutor discretion. DE
210, at 5 (“taking discretion away from the
Government”). The path Hamilton urges is one precedent
forecloses; the Court will not take it.
INEFFECTIVE ASSISTANCE OF COUNSEL
also requests relief based on alleged ineffective assistance
of his former counsel (Hon. Andrew M. Stephens) regarding a
lapsed plea offer and the attendant loss of an offense level
reduction for § 3E1.1(b) timely acceptance of
responsibility. Per Hamilton, Stephens failed to explain the
meaning and effect of the prosecutor's plea offer
deadline. The plea lapsed, and Hamilton lost the §
reasons explained below, the Court finds that Stephens
deficiently failed to convey the possibility of irrevocable
third-point loss and ineffectively advised Hamilton that the
prosecutorial deadline was not controlling. Further, Hamilton
established a reasonable probability that, if accurately
advised, he would have accepted the plea before it lapsed.
Hamilton ultimately accepted-and was sentenced based on-an
agreement that differed only by omitting the third point
reduction, a point lost by misadvice. Nothing in the record
suggests that, had Hamilton accepted the original deal, such
a plea would have been withdrawn, gone unaccepted, or that
the resulting sentence would not have been similarly situated
within the lower guideline range. Hamilton is thus entitled
to relief on this distinct and limited ground.
asserting an ineffective assistance claim, a movant must
prove both deficient performance and prejudice.
Strickland v. Washington, 104 S.Ct. 2052, 2064
(1984); Campbell v. Bradshaw, 674 F.3d 578, 586 (6th
Cir. 2012); Pough v. United States, 442 F.3d 959,
964 (6th Cir. 2006) (noting that a movant must prove
ineffective assistance by a preponderance of the evidence).
In order to prove deficient performance, a movant must show
that “counsel made errors so serious that counsel was
not functioning as the ‘counsel' guaranteed the
defendant by the Sixth Amendment.” Strickland,
104 S.Ct. at 2064. A movant meets this burden by showing
“that counsel's representation fell below an
objective standard of reasonableness” as measured under
“prevailing professional norms” and evaluated
“considering all the circumstances.” Id.
at 2064- 65. Judicial scrutiny of counsel's performance,
however, is “highly deferential, ” featuring a
“strong presumption that counsel's conduct falls
within the wide range of reasonable professional
assistance[.]” Id. at 2065.
order to prove prejudice, a movant “must show that
there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different.” Id. at 2068. When
evaluating prejudice, courts generally must take into
consideration the “totality of the evidence before the
judge or jury.” Id. at 2069. “To show
prejudice from ineffective assistance of counsel where a plea
offer has lapsed or been rejected because of counsel's
deficient performance, defendants must demonstrate a
reasonable probability they would have accepted the earlier
plea offer had they been afforded effective assistance of
counsel.” Missouri v. Frye, 132 S.Ct. 1399,
1409 (2012). Ultimately, to satisfy the Strickland
prejudice prong in the plea bargaining context, a movant must
“show that but for the ineffective advice of counsel
there is a reasonable probability that the plea offer would
have been presented to the court (i.e., that the defendant
would have accepted the plea and the prosecution would not
have withdrawn it in light of intervening circumstances),
that the court would have accepted its terms, and that the
conviction or sentence, or both, under the offer's terms
would have been less severe than under the judgment and
sentence that in fact were imposed.” Lafler v.
Cooper, 132 S.Ct. 1376, 1385 (2012).
deficient performance claim boils down to two key questions:
one factual, one legal. First, what did Stephens tell, or not
tell, Hamilton before the April 11 deadline? Second, were
Stephens's communications or omissions consistent with
prevailing professional standards under the circumstances?
The Court turns to the record to resolve the former. i.
Undisputed Facts On November 24, 2015, the Government
sent defense counsel a letter broaching the possibility of a
plea agreement. DE 185, at 8-9. A month later, the
prosecutor, Hon. Neeraj Gupta, contacted Stephens again,
provided the broad contours of a possible plea agreement, and
established a January 25, 2016, expiration for all existing
offers. Id. at 8. Three days after that deadline
expired, and given an interim trial continuance, DE 107,
Gupta contacted Stephens to note the expiration, and offered
new terms attached to an April 11, 2016, deadline.
Id. at 7. Gupta stressed that missing the April
deadline would forfeit the third point for timely acceptance.
Stephens's first substantive response came over two
months later-twelve days before offer expiration-and
requested a plea status update. Id. at 6.
Gupta's same-day response restated the terms offered in
January and explicitly reiterated that: “Brian Hamilton
can get the third point for acceptance of responsibility if
we can sign a plea agreement on or before April 11.”
Id. (emphasis added). The next day, March 31, 2016,
Stephens indicated that “Brian [Hamilton] is most
certainly not interested in a trial.” Id. at
5. Stephens and Gupta scheduled a plea discussion for ...