United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION & ORDER
M. Hood Senior U.S. District Judge.
matter is before the Court on federal prisoner, John
Guzman's motion to vacate, set aside, or correct sentence
pursuant to 28 U.S.C. § 2255. [DE 93]. In his motion,
Guzman argues that his counsel was ineffective during his
trial and on appeal. [DE 93-1]. In this case, the record
refutes Guzman's claims of ineffective assistance of
counsel at trial and on appeal that were properly presented
in his § 2255 motion. Thus, Guzman's petition for
relief under § 2255 is DENIED and the
Court declines to grant an evidentiary hearing, or issue a
certificate of appealability.
Procedural and Factual Background
5, 2016, Guzman was indicted on nine (9) separate counts of
bank fraud in violation of 18 U.S.C. § 1344(1). Mr. H.
Wayne Roberts was subsequently appointed CJA counsel for
Guzman. Guzman entered a plea of not guilty on all nine (9)
November 18, 2016, after a one-week jury trial, Guzman was
found guilty on all nine (9) counts. [DE 42]. As a result,
Guzman was sentenced to a term of imprisonment of fifty (50)
months on each of the nine counts to run concurrently. [DE
60]. Guzman is currently serving his sentence at Federal
Medical Center (“FMC”) in Lexington, Kentucky.
appealed the district court's denial of Guzman's
motion for judgement of acquittal. [DE 64]. Counsel, H. Wayne
Roberts, was appointed as counsel for Guzman in his appeal.
On direct appeal, Guzman argued that there was insufficient
evidence to convict him of bank fraud under 18 U.S.C. §
1344(1). [DE 91 at 5, PageID #1377]. On April 25, 2018, the
Sixth Circuit found that Guzman's convictions were
supported by the evidence and affirmed the district court.
[Id. at 9, PageID #1381].
September 24, 2018, Guzman filed the instant motion. [DE 93].
Guzman states that the sole ground for his motion to vacate
his sentence is that his trial and appellate counsel provided
ineffective assistance. [DE 93 at 4, PageID #1389].
makes four arguments in support of his ineffective assistance
claim. [DE 93-1 at 2-13, PageID #1400-11]. First, Guzman
argues that his counsel was ineffective for failing to
interview, investigate, and call certain witnesses.
[Id. at 1402-04]. Second, he argues that his counsel
was ineffective for failing to request the United States to
turn over allegedly-suppressed evidence. [Id. at
6-8, PageID #1404-06]. Third, Guzman claims his counsel was
ineffective for failing to argue that the trial court
inaccurately and confusingly explained the elements of the
crime he was charged with. [Id. at 8-9, PageID
#1406-07]. Fourth, Guzman argues that counsel was ineffective
for failing to raise certain issues on appeal that Guzman
wanted to raised, including questions of counsel's own
ineffectiveness. [Id. at 9-13, PageID #1407-11].
United States responded in opposition to Guzman's motion,
[DE 99], and Guzman replied in support. [DE 102]. This matter
was subsequently submitted to the Magistrate Judge Edward B.
Atkins, [DE 103], who recommended that the Guzman's
motion be denied with prejudice. [DE 112].
10, 2019, Guzman filed objections to Magistrate Judge
Atkins's Recommended Disposition. [DE 113]. Guzman
“objects to the R&R in its entirety but will deal
with it on a point by point basis.” [DE 113 at 2,
PageID #1639]. First, Guzman alleges that his counsel was
ineffective for failing to interview and call
“promising witnesses[, ]” that would have changed
the outcome of his trial. [DE 113 at 2, PageID #1639].
Second, Guzman objects, [DE 113 at 4, PageID #1641], to the
Magistrate Judge's Recommended Disposition, [DE 112 at
9-12, PageID #1624-27], as it relates to Guzman's
allegation that his counsel failed to file a motion for
suppressed evidence. [DE 93-1 at 7-8, PageID #1405-06].
Third, Guzman objects to the Magistrate Judge's
recommendation, again arguing that his counsel was
ineffective because his counsel failed to object to the trial
court's jury instructions and explanations and failed to
raise that argument on appeal. [DE 113 at 4-9, PageID
#1641-45]. Finally, Guzman also claims he was denied
effective assistance of counsel during his appeal. [DE 93-1
at 9-13, PageID #1407-11]. We will review each of Guzman's
objections in turn.
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) (“[B]oth the right to
appeal and the right to seek post-conviction relief are
statutory rights ....”). To be entitled to habeas
relief under his 28 U.S.C. § 2255 claims, Garner must
generally show that, inter alia, “there has
been such 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).
particular, “[t]o prevail on a motion under §
2255, a [petitioner] must prove ‘(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.'” Goward v. United States, 569
Fed.Appx. 408, 412 (6th Cir. 2014) (quoting McPhearson v.
United States, 675 F.3d 553, 559 (6th Cir. 2012)).
habeas petitioner may object to a magistrate judge's
report and recommendation. Fed.R.Civ.P. 72(b)(2). If the
petitioner objects, “The district judge must determine
de novo any part of the magistrate judge's disposition
that has been properly objected to.” Fed.R.Civ.P.
72(b)(3); see also 28 U.S.C. § 636(b)(1).
“Only those specific objections to the magistrate's
report made to the district court will be preserved for
appellate review.” Carson v. Hudson, 421
Fed.Appx. 560, 563 (6th Cir. 2011) (quoting Souter v.
Jones, 395 F.3d 577, 585-86 (6th Cir. 2005).
plaintiff proceeds pro se, his pleadings are held to
a less stringent standard than those prepared by an attorney
and are liberally construed in his favor. See Fazzini v.
Northeast Ohio Corr. Ctr., 473 F.3d 229, 231 (6th Cir.
2006); Martin v. Overton, 391 F.3d 710, 712 (6th
Ineffective Assistance of Counsel
ineffective assistance of counsel claim under
Strickland requires that a prisoner show (1) that
his “counsel's performance was deficient measured
by reference to ‘an objective standard of
reasonableness'” and (2) “resulting
prejudice, which exists where ‘there is a reasonable
probability that, but for counsel's unprofessional
errors, the result of the proceedings would have been
different.'” United States v. Coleman, 835
F.3d 606, 612 (6th Cir. 2016) (quoting Strickland v.
Washington, 466 U.S. 668, 688, 694 (1984)).
establish deficient performance, a petitioner must
demonstrate that counsel's representation ‘fell
below an objective standard of reasonableness.'”
Wiggins v. Smith, 539 U.S. 510, 521 (2003) (quoting
Strickland, 466 U.S. at 688)). Courts have
“declined to articulate specific guidelines for
appropriate attorney conduct and instead have emphasized that
‘[t]he proper measure of attorney performance remains
simply reasonableness under prevailing professional
norms.'” Id. (quoting Strickland,
466 U.S. at 688) (alterations in Wiggins). Still, a
court's review of this prong includes a “strong
presumption that counsel's conduct falls within the wide
range of reasonable professional assistance.”
Strickland, 466 U.S. at 689. Petitioner carries the
burden of establishing that “‘counsel made errors
so serious that counsel was not functioning as the
“counsel” guaranteed the defendant by the Sixth
Amendment.'” Harrington v. Richter, 562
U.S. 86, 104 (2011) (quoting Strickland, 466 U.S. at
results from a deficient performance when
“counsel's errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is
reliable.” Strickland, 466 U.S. at 687.
“It is not enough ‘to show that the errors had
some conceivable effect on the outcome of the
proceeding.'” Harrington, 562 U.S. at 104
(quoting Strickland, 466 U.S. at 693).
“Strickland's high bar is never an easy
task.” Padilla v. Kentucky, 559 U.S. 356, 371
(2010). The standard “must be applied with scrupulous
care, lest ‘intrusive post-trial inquiry' threaten
the integrity of the very adversary process the right to
counsel is meant to serve.” Harrington, 562
U.S. at 105. “Even under de novo review, the
standard for judging counsel's representation is a most
deferential one” because “[u]nlike a later
reviewing court, the attorney observed the relevant
proceedings, knew of materials outside the record, and
interacted with the client, with opposing counsel, and with
the judge.” Id.
instant matter, Guzman's ineffective assistance of
counsel arguments can be divided into trial claims and appeal
claims. We will discuss each in turn.
Trial Ineffective Assistance of Counsel Claims.
Failure to investigate and call potential witnesses.
Guzman alleges that his counsel was ineffective for failing
to interview and call “promising witnesses[, ]”
that would have changed the outcome of his trial. [DE 113 at
2, PageID #1639]. As noted in the Magistrate Judge's
Recommended Disposition, [DE 112 at 6-9, PageID #1621-24],
Guzman claims that there were nine(9) people, who should have
been interviewed and called as witnesses in his
defense. [DE 93-1 at 4-6, PageID #1402-04]. These
persons include (1) Brad Lawson, (2) Tammie Luttrell, (3) Tim
Wesley, (4) David Harrod, (5) Mike Lawson, (6) Mike Feldman,
(7) Kristen Lambert, (8) Morris Chamness, and (9) David
Vervile. [DE 93-1 at 5, PageID #1403].
claim fails because he made no showing that his counsel
failed to interview, investigate, or call witnesses that
would have offered testimony favorable to him. The law is
clear that “[c]ounsel has a duty to make reasonable
investigations or to make a reasonable decision that makes
particular investigations unnecessary.” Towns v.
Smith, 395 F.3d 251, 258 (6th Cir. 2005) (quoting
Strickland, 466 U.S. at 691). Counsel's basic
function is “to make the adversarial process work in
the particular case.” Id. (quoting
Kimmelman v. Morrison, 477 U.S. 365, 384 (1986)).
claims the testimony of the purported witnesses would have
negated the element of intent on all nine (9) counts of bank
fraud on which he was found guilty. [DE 93-1 at 6, PageID
#1404]. Guzman takes issue with the fact that two witnesses,
Brad Lawson and Tammie Luttrell, were subpoenaed, but neither
were called to testify. [Id. at 5, PageID #1403].
Next, he claims his counsel failed to investigate and/or
interview the balance of the purported witnesses named above.
[Id. at 6, PageID #1404]. Guzman set forth the
particular facts to which each of these purported witnesses
would allegedly testify, but has not attached affidavits
supporting these claims. [Id. at 5, PageID #1403].
unsupported allegations must fail. In the instant case,
Guzman offered no affidavits showing what these
witnesses' testimony would have provided, let alone that
their testimony would, in fact, be favorable to him. The