United States District Court, E.D. Kentucky, Northern Division, Ashland
MAGISTRATE JUDGE'S REPORT AND
B, ATKINS, UNITED STATES MAGISTRATE JUDGE
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.
FACTS AND PROCEDURAL HISTORY
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.
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
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.
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].
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.
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.
STANDARD OF REVIEW
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).
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).
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.
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).
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
DEFENDANT FLUTY: Yes, sir.
THE COURT: And did you go through it ...