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United States v. Jones

United States District Court, E.D. Kentucky, Southern Division, London

May 24, 2018

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
DEBBIE JONES, Defendant/Movant.

          RECOMMENDED DISPOSITION

          Robert E. Wier, United States Magistrate Judge

         Movant, Debbie Jones, is a federal inmate. DE #37 (Motion), at 1. On March 7, 2018, [1] Jones filed a pro se[2] motion under 28 U.S.C. § 2255. See generally Id. The United States responded in opposition. DE #47 (Response). Jones replied. DE #48 (Reply). On the United States's motion, the Court found that, as to communications necessary to litigate the claims of ineffective assistance, Jones waived attorney-client privilege. DE #46 (Order). The matter is ripe for consideration. Per normal practice, the District assigned the matter to the undersigned for a recommended disposition. The Court RECOMMENDS that the District Judge fully DENY § 2255 relief (DE #37) and issue NO Certificate of Appealability.

         I. BACKGROUND INFORMATION

         On June 23, 2016, a federal grand jury charged Jones with (1) PWID 50 grams of meth, in violation of 21 U.S.C. § 841(a)(1), and (2) being a felon in possession, in violation of 18 U.S.C. § 922(g)(1). DE #1. Jones pleaded guilty to Count 1, pursuant to a plea agreement, on October 24, 2016. DE ##24 (Rearraignment Minute Entry); 22 (Plea Agreement). Judge Van Tatenhove sentenced Jones on March 6, 2017. DE #30 (Sentencing Minute Entry). Movant received a total prison sentence of 120 months, the mandatory minimum, followed by 8 years of supervised release. DE #31 (Judgment). Jones did not appeal. On March 7, 2018, she timely submitted a § 2255 motion to vacate. DE #37. The Government responded. DE #47. Jones replied. DE #48. The motion stands ripe for review. The Court rejects all of Movant's claims and recommends dismissal. No basis exists for a Certificate of Appealability.

         II. STANDARD OF REVIEW

         Under 28 U.S.C. § 2255, a federal prisoner may obtain post-conviction relief if her 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 Fed.Appx. 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 the evidence.”).

         III. ANALYSIS

         In the § 2255 motion, Jones cursorily asserts three ineffective assistance of counsel arguments.[3] The Court evaluates each in turn.

         A. Ineffective Assistance of Counsel

         When 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.

         Deficient performance is considered constitutionally prejudicial only when “counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. at 2064. In 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. “In the context of pleas a defendant must show the outcome of the plea process would have been different with competent advice.” Lafler v. Cooper, 132 S.Ct. 1376, 1384 (2012).[4]

         First—Jones asserts, in the entirety, that, after being asked “to sign a plea agreement per speaking with my attorney, ” Hon. Liannie Parahoo, she (Jones) asked Ms. Parahoo “for my points per the sentecing [sic] guidelines but she [Ms. Parahoo] couldn't give them to me until I had signed the plea instead of giving me the point guidelines then me signing the plea.” DE #37, at 4. Movant does not articulate what, precisely, she means by “points per the sente[n]cing guidelines” or “point guidelines, ” but the Court assumes, under a liberal interpretation, she is referencing her likely Guidelines range. See also DE #48 (Reply), at 1 (clarifying that the complaint concerns not “being told her guidelines” pre-plea).

         There is no ineffectiveness regarding Ms. Parahoo's alleged comment. Quite to the contrary, it is an accurate statement of the law and concerning federal criminal practice. Ms. Parahoo (or any other attorney) could not have advised Movant exactly what her Guidelines range would be prior to pleading. See, e.g., United States v. Hunter, Nos. 11-54-GFVT-REW, 14-7365-GFVT-REW, 2015 WL 4622592, at *4, *6 (E.D. Ky. July 30, 2015) (stating “that a guideline range was indeterminate (even unknowable) until the District Court ruled on objections to the presentence report”); United States v. Nasir, Nos. 12-102-JMH-CJS-1, 14-7386-JMH-CJS, 2016 WL 8376404, at *3 (E.D. Ky. Nov. 30, 2016) (noting that the presentence report is prepared “after the plea but before sentencing”); United States v. Smith, No. 3:08-CR-31-JMH, 2011 WL 1885390, at *10 (E.D. Ky. May 18, 2011) (“Further, this Court carefully explained to Smith during the rearraignment that the Guidelines would apply in his case and that his potential sentence could only be evaluated once the PSR was prepared and Guidelines calculation completed for the Court's review.”).

         The sworn rearraignment colloquy confirms this understanding of sequence. Jones, under oath, told Judge Van Tatenhove that, prior to signing the plea agreement, no one promised her that she would receive a particular sentence if she pleaded. DE #42, at 15-16. The District Judge informed Movant that the plea agreement “doesn't bind me” and that he was “not required under this plea agreement to impose a particular sentence.” Id. at 19. Judge Van Tatenhove also directly advised Jones, an admitted high-quantity meth player, that she was facing “a statutory mandatory minimum sentence of ten years in federal prison” and, indeed, a maximum term of “up to life in prison.” Id. at 22. The plea agreement (which she read and signed) told her the same thing. DE #22, at ¶ 4. Most importantly, Judge Van Tatenhove described, in detail, the procedure leading up to sentencing:

Now, you and Ms. Parahoo have spent a lot of time talking about sentencing, and I know one of the first questions you asked your lawyer was, ‘Well, how much time do you think I'll have to do if I plead guilty?' Right? I mean, every ...

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