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United States v. Fluty

United States District Court, E.D. Kentucky, Northern Division, Ashland

February 4, 2019

UNITED STATES OF AMERICA, PLAINTIFF,
v.
HEATHER S. FLUTY, DEFENDANT.

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          EDWARD B, ATKINS, UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         The Defendant, Heather S. Fluty, brings this action pursuant to 28 U.S.C. § 2255 seeking to vacate, set aside, or correct her sentence. [R. 80]. Consistent with local practice, this matter is before the undersigned for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1). For the following reasons, the Court recommends that Fluty's motion be denied.

         II. FACTS AND PROCEDURAL HISTORY

         On October 29, 2015, Heather Fluty contacted a deputy with the Lawrence County, Kentucky, Sheriff's Department and, after waiving her rights, gave a statement that she had been trafficking in Oxycodone. She wanted to start a new life and agreed to work with the Kentucky State Police (“KSP”) to get some drugs off the street. However, Fluty failed to follow through on her promises. In the meantime, the Lawrence County Sheriff's Deputy was receiving complaints that Fluty was selling drugs.

         In response to the complaints, KSP began using confidential informant(s) to purchase oxycodone from Heather Fluty and her husband, Glen, at their residence. Over the course of a year, December 2015 until November 2016, the confidential informant(s) made several undercover controlled purchases of Oxycodone.

         On November 3, 2016, Heather Fluty was indicted on one count of conspiracy to distribute Oxycodone, and and seven counts of distribution of Oxycodone. [R. 1]. On November 14, 2016, law enforcement personnel executed a search warrant at the Fluty residence. [R. 60 at 2; R. 92 at 8]. During the execution of the search warrant, investigators discovered several firearms, including one assault rifle and a pistol found in a safe in the master bedroom located near a pill bottle. Investigators also discovered a suspected drug ledger documenting dates and amounts of drug sales. Additionally, investigators discovered $3, 772 at various locations throughout the residence. Id. Both Glen and Heather Fluty were arrested.

         On February 10, 2017, Heather Fluty plead guilty to Count 1 of the indictment, charging her with conspiracy to distribute Oxycodone pills. [R. 59; R. 85]. In consideration for her plea, the United States agreed to move at sentencing to dismiss all other counts against her. [R. 60].

         The presentence report, submitted prior to sentencing, outlined the recommended guideline calculations in Fluty's case. First, the guideline calculations acknowledged that the United States agreed at sentencing to dismiss all remaining counts. In addition, the calculations factored a two-level enhancement to the base offense level due to the presence of a firearm. Finally, although in the plea agreement Fluty admitted that law enforcement officers found a drug ledger during the execution of a search warrant at her residence, there is no enhancement to the recommended sentence under the guidelines due to its discovery. Prior to sentencing, Fluty's attorney objected to the two-level enhancement due to the presence of a firearm, however, the Court overruled the objection. Ultimately the guideline range for Fluty was 57 to 71 months of incarceration. She was sentenced to a within the guidelines term of sixty (60) months total imprisonment, three (3) years supervised release, $3, 772.00 fine, and $100 special assessment. [R. 73; R. 74; R. 86]. On motion of the United States the Court dismissed all remaining counts against Ms. Fluty, and no appeal was taken.

         Fluty has now filed this instant motion to vacate pursuant to 28 U.S.C. § 2255. [R. 80]. Specifically, Fluty argues that her counsel was ineffective in three ways: (1) That her attorney did not explain her plea agreement to her, saying that she met with him on one occasion for ten minutes. She alleges telling him that she didn't understand, to which he responded that if she plead guilty to Count 1, all other counts would be dismissed; (2) That her attorney did not understand the facts of her case due to his failure to meet with her more than one time. She alleges that her attorney was unaware of the firearm enhancement under the guidelines until their “10-minute meeting”. In addition, she alleges that she was unaware she was admitting guilt to having a drug ledger; and (3) That he failed to dispute the gun enhancement. [R. 80 at 4-6]. Fluty's Motion to Vacate stands ripe for adjudication.

         III. STANDARD OF REVIEW

         Generally, a prisoner has a statutory right to collaterally attack his conviction or sentence. Watson v. United States, 165 F.3d 486, 488 (6th Cir. 1999). For a federal prisoner to prevail on a 28 U.S.C. § 2255 claim, he must show that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law nor open to collateral attack, or otherwise must show that there was “a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack.” 28 U.S.C. § 2255(b).

         Put another way, for relief under 28 U.S.C. § 2255, the prisoner must show that: (1) his conviction resulted from an error of constitutional magnitude; (2) his sentence was imposed outside the statutory limits; or (3) an error of fact or law occurred that was so fundamental as to render the entire proceedings invalid. Mallett v. United States, 334 F.3d 491, 496-97 (6th Cir. 2003), cert. denied, 540 U.S. 1133 (2004); see also Moss v. United States, 323 F.3d 445, 454 (6th Cir. 2003), cert. denied, 540 U.S. 879 (2003). He must sustain these allegations by a preponderance of the evidence. McQueen v. United States, 58 Fed.Appx. 73, 76 (6th Cir. 2003) (unpublished) (“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.”); Pough v. United States, 442 F.3d 959, 964 (6th Cir. 2006). If the prisoner alleges a constitutional error, he must establish by a preponderance of the evidence that the error “had a substantial and injurious effect or influence on the proceedings.” Watson, 165 F.3d at 488 (citing Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993); Pough, 442 F.3d at 964. Alternately, if he alleges a non-constitutional error, he must establish “a fundamental defect which inherently results in a complete miscarriage of justice . . . an error so egregious that it amounts to a violation of due process.” Watson, 165 F.3d at 488 (citing United States v. Ferguson, 918 F.2d 627, 630 (6th Cir. 1990).

         To prevail on an ineffective assistance of counsel claim under Section 2255, the petitioner must prove both deficient performance and prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984). To prove deficient performance, he must show that “counsel's representation fell below an objective standard of reasonableness.” Id. at 687-88. In applying this test, reviewing courts must “indulge a strong presumption that counsel's conduct falls within the wide range of reasonably professional assistance . . .” Id. Second, the petitioner must establish prejudice, by showing there is a reasonable probability that, but for counsel's unprofessional errors, the result of his proceedings would have been different. Id. at 694-95. Notably, “[w]hen deciding ineffective-assistance claims, courts need not address both components of the [deficient performance and prejudice] inquiry ‘if the defendant makes an insufficient showing on one.'” Campbell v. United States, 364 F.3d 727, 730 (6th Cir. 2004); Strickland, 466 U.S. at 697.

         Decisions that “might be considered sound trial strategy” do not constitute ineffective assistance of counsel. Michel v. Louisiana, 350 U.S. 91, 101 (1955). While trial counsel's tactical decisions are not completely immune from Sixth Amendment review, they must be particularly egregious before they will provide a basis for relief. Martin v. Rose, 744 F.2d 1245, 1249 (6th Cir. 1984). Further, “[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the [ultimate] judgment.” West v. Seabold, 73 F.3d 81, 84 (6th Cir. 1996) (quoting Strickland, 466 U.S. at 691). “Counsel is constitutionally ineffective only if performance below professional standards caused the defendant to lose what he otherwise would probably have won.” United States v. Morrow, 977 F.2d 222, 229 (6th Cir. 1992).

         IV. ANALYSIS

         Fluty's first argument is that her attorney did not explain her plea agreement to her, saying that she met with him on one occasion for ten minutes. She alleges telling him that she didn't understand, to which he responded that if she plead guilty to Count 1, all other counts would be dismissed. [R. 80 at 4]. These accusations are clearly refuted by the record. During the rearraignment, not only did she confirm that she spoke to her attorney about the plea agreement, but she also stated that she did not have any questions about the plea agreement. The transcript reads as follows:

THE COURT: Okay. The indictment was returned in November of last year, ma'am. Did you receive a copy of the indictment at the time you were arraigned by the Magistrate Judge?
DEFENDANT FLUTY: Yes, sir.
THE COURT: And did you go through it ...

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