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United States v. Fox

United States District Court, E.D. Kentucky, Central Division

July 11, 2018

UNITED STATES OF AMERICA, Plaintiff/Respondent,
ROBERT FRANKLIN FOX, Defendant/Movant.


          Joseph M. Hood Senior U.S. District Judge.

         Movant, Robert Franklin Fox, is a federal inmate. DE #82 (Motion), at 1. On March 30, 2018, [1] Fox filed a pro se[2]motion under 28 U.S.C. § 2255. See generally Id. The United States responded in opposition. DE #88 (Response). With Court permission, DE #91 (Order), the Government later supplemented. DE #90 (Supplemental Response). Fox replied. DE #95 (Reply). On the United States's motion, the Court found that, as to communications necessary to litigate the claims of ineffective assistance, Fox waived attorney-client privilege. DE #87 (Order). The matter is ripe for consideration. For the following reasons, the Court fully DENIES § 2255 relief (DE #82) and issues NO Certificate of Appealability.


         On May 1, 2014, a federal grand jury charged Fox with knowingly and intentionally possessing with intent to distribute Oxycodone, in violation of 21 U.S.C. § 841(a)(1). DE #1 (Indictment). Fox pleaded guilty, without a plea agreement, to the lone Count on January 26, 2015. DE #31 (Rearraignment Minute Entry). The Court sentenced Fox on May 26, 2015. DE #44 (Sentencing Minute Entry). Movant received a total prison sentence of 150 months followed by 6 years of supervised release. DE #46 (Judgment). Fox appealed; the Sixth Circuit remanded based on a perceived lack of clarity in the undersigned's Guidelines math or sentencing explanation. See DE #64. The Court resentenced Movant on August 1, 2016. DE #70 (Minute Entry). In the hearing, the Court further explained the Guidelines treatment and imposed an identical sentence. See DE ##71 (Amended Judgment); 72 (Order). Fox again appealed; this time, the Sixth Circuit affirmed. United States v. Fox, 712 Fed.Appx. 486 (6th Cir. 2017). On March 30, 2018, Fox timely submitted a § 2255 motion to vacate. DE #82. The motion is fully briefed and stands ripe for review. The Court rejects all of Fox's claims. No basis exists for a Certificate of Appealability.


         Under 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, 507 U.S. 619, 637-38 (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, 368 U.S. 424, 428 (1968)); see also Watson, 165 F.3d at 488. A § 2255 movant generally must prove 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, Fox asserts various arguments concerning ineffective assistance of trial counsel (IAC), ineffective assistance of appellate counsel (IAAC), entitlement to an evidentiary hearing, and a recent Fifth Circuit case. The Court evaluates each in turn.

         A. Ineffective Assistance of Trial Counsel

         When asserting an ineffective assistance claim, a movant must prove both deficient performance and prejudice. Strickland v. Washington, 466 U.S. 668, 687 (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).[3] 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, 466 U.S. at 687. 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 687-89. 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 689.

         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 687. 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 694. When evaluating prejudice, courts generally must consider the “totality of the evidence before the judge or jury.” Id. at 695. “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, 566 U.S. 156, 163 (2012).[4]

         First-Fox claims that his counsel at resentencing, Hon. Benjamin Allen, ineffectively failed to argue concerning U.S.S.G. Amendment 798. DE ##82, at 4; 82-1, at 5-10. The United States responded. DE #88, at 3-5. Fox replied. DE #95, at 1-5, 9-14. The amendment, as relevant here, eliminated burglary as an enumerated offense in U.S.S.G. § 4B1.2(a). The change, indeed, went unmentioned at the August 2016 resentencing.

         This argument ultimately falters, at least, [5] on Strickland's prejudice prong. The Sixth Circuit has already, in Fox's very case, rejected the substantive underlying premise of this contention, holding: “Fox's argument that the district court should have applied the Supplement to the 2015 Guidelines Manual fails.” Fox, 712 Fed.Appx. at 488-89 (explicitly contemplating “Amendment 798”). The Court of Appeals made clear, per a specific analysis, that the undersigned did not err “by applying on remand the 2014 Guidelines Manual that was in effect at Fox's original sentencing, and [by] continuing to classify Fox as a career offender.” Id. at 490; see also DE #76 (Resentencing Tr.), at 8 (applying “the guidelines that were in effect at the time of your sentencing”).[6] Thus, the Sixth Circuit has already endorsed application of the pre-Amendment-798 Guidelines at Fox's 2016 resentencing. Trial counsel is not ineffective for not raising an argument that the Court of Appeals deemed meritless. Ludwig v. United States, 162 F.3d 456, 459 (6th Cir. 1998).

         Second-Fox argues that Mr. Allen ineffectively failed “to object to the amount of drugs used to calculate Petitioner's base offense level.” DE ##82, at 4 (unnecessary capitalization removed); 82-1, at 13-15. Movant's specific argument is that “the district court should not[] have counted the ‘five [unopened] bottles' [of liquid Oxycodone] toward[] the total amount of marijuana for which he was sentenced.” DE #82-1, at 13. Fox argues, seeming to parrot footnote 1 of the Presentence Investigation Report (PSR), see DE #49, at 4 n.1, that “none of these bottles were analyzed.” DE #82-1, at 13. The United States responded. DE #88, at 5-6. Fox replied. DE #95, at 7-8.

         As an initial matter, the career offender designation (not the drug quantity) ultimately defined the applicable offense level, meaning that this argument by Fox (relative to the offense level of 26 the PSR assigned based on marijuana equivalency) is really a nullity. Compare DE #49, at ¶ 14, with Id. at ¶ 13. Thus, even if the Court agreed with Movant on this point, the operative offense level still would be 31, leading to no prejudice and thus no § 2255 relief. Nevertheless, due to the ease with which the argument substantively fails, the Court also processes the theory on Fox's terms.

         The PSR stated that law enforcement seized 6 bottles labeled as containing “oxycodone liquid”-1 opened, 5 unopened-as part of this investigation. See DE #49, at 4 n.1.[7] “According to Kentucky State Police Laboratory Report #2, ” the opened bottle “tested positive for oxycodone.” See Id. The PSR attributed “an amount of 10 milliliters . . . to be converted to a marijuana equivalency, ” to each of the 5 unopened bottles. See Id. Fox did not object to these portions of the PSR during the sentencing process. See DE #52, at 7 (Fox stating no personal objections other than the ones his attorney raised, which did not include this specific complaint).

         In such a scenario, when “the exact amount of drugs is undetermined, an estimate will suffice, but a preponderance of the evidence must support the estimate.” United States v. Jeross, 521 F.3d 562, 570 (6th Cir. 2008) (internal quotation marks and alteration removed). “The district court's estimate may be based upon physical evidence (such as seized drugs)” and will withstand review “if it is supported by competent evidence in the record.” Id.

         The Court's treatment here easily passes muster. Even if the exact drug amount in the 5 unopened bottles went undetermined, the Court properly estimated the amount in this context. The contents and quantity of the 1 opened bottle (i.e., other seized drugs, which Jeross explicitly approved as an estimate source) sufficed under a preponderance standard. It was competent record evidence- indeed, the only related evidence. The estimation's “methodology” is not, as Fox speciously argues, “totally opaque, ” DE #82-1, at 13; rather, the methodology could not have been simpler or more direct.[8] The calculation simply involved extrapolating the known milliliter quantity from 1 bottle to 5 others, identically labeled and seized together. Accordingly, such an objection at sentencing to the drug quantity calculation, as Fox now presses, would have been unsuccessful. Allen was not ineffective for declining to mount a losing argument (which, again, would not have impacted the applicable offense level). Coley v. Bagley, 706 F.3d 741, 752 (6th Cir. 2013) (“Omitting meritless arguments is neither professionally unreasonable nor prejudicial.”).

         B. Ineffective Assistance ...

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