from the United States District Court for the Middle District
of Tennessee at Cookeville. Nos. 2:11-cr-00001-5;
2:14-cv-00013-Waverly D. Crenshaw, Jr., District Judge.
Michael C. Holley, FEDERAL PUBLIC DEFENDER, Nashville,
Tennessee, for Appellant.
W.VanDevender, UNITED STATES ATTORNEY'S OFFICE,
Nashville, Tennessee, for Appellee.
Before: DONALD, LARSEN, and NALBANDIAN, Circuit Judges
BERNICE BOUIE DONALD, CIRCUIT JUDGE.
2011, Timothy Neill, Jr. ("Neill") pleaded guilty
to being a felon in possession of a firearm, in violation of
18 U.S.C. § 922(g). He was sentenced to ninety-two
months imprisonment, and on advice of counsel, he decided not
to pursue an appeal. Neill subsequently filed a motion to
vacate, set aside, or correct his sentence under 28 U.S.C.
§ 2255, arguing, among other things, that he had
received ineffective assistance of counsel in regard to his
appellate strategy. The district court denied his § 2255
motion and, later, denied a motion for reconsideration of his
ineffective assistance of counsel claim. After denying the
motion for reconsideration, however, the district court
issued a certificate of appealability because reasonable
jurists could disagree with its disposition of Neill's
claim for ineffective assistance. For the following reasons,
has a lengthy criminal record, including multiple felonies.
In 2010, he was on parole with the state of Tennessee, and in
June of that year, he was photographed holding a
semiautomatic rifle. As part of a federal investigation into
gun trafficking, authorities discovered the photograph. On
January 20, 2011, the state of Tennessee revoked his parole
and took him into custody, imposing a sentence of more than
forty-two months for the violation.
March 2, 2011, based on the same photograph, he was indicted
by federal agents for being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g). Soon
thereafter, he was transferred to federal custody and pleaded
guilty on September 12, 2011. His sentencing was delayed for
reasons that are not pertinent here, but he was eventually
scheduled to be sentenced on January 11, 2013, approximately
twenty-two months later. During the intervening period, he
was transferred back to state custody for nine months so that
he could "earn behavioral and program credits, which
[could] shorten the length [of his sentence]." Thus, he
spent thirteen months in federal custody prior to being
preparation for Neill's federal sentencing, the probation
office prepared a Presentence Investigation Report
("PSR"). According to the PSR, Neill had twenty-two
criminal history points, establishing a criminal history
category of VI, the highest category in the Sentencing
Guidelines. His base offense level was twenty-three, which
led to a Guidelines sentence range of 92 to 115 months.
his sentencing hearing, defense counsel Benjamin Perry lodged
numerous objections, all of which were overruled. The
district court adopted the recommended findings in the PSR
and sentenced Neill to ninety-two months imprisonment, to run
consecutive to his state sentence for the parole violation.
in imposing the sentence, the judge stated,
As to the sentence in this case, given the dangerousness of
the underlying conduct and the Criminal History Category VI,
which is as high as you can get, the Court will be inclined
to sentence toward the high end of the guideline, but the
Court takes into account your efforts to change, your
concerns about your daughter which [have] changed [you] a
The Court also wants to remind you that if you continue to do
as you are currently that you will likely receive 54 days of
good time credits, which will take off more than 14 months of
your sentence which would be [an] effective federal sentence
of about 76 or 78 months. You will get credit for the time
you have been in custody so you will get an additional
reduction on that. So considering the net effect of the
sentence imposed by the Court, I don't believe the
sentence is greater than necessary.
contends the court's statement was in error because the
court assumed he would receive credit against his federal
sentence for the time he spent in federal custody prior to
being sentenced. However, because Neill received credit on
his state sentence for those thirteen months, he could not
receive credit on his federal sentence as well. See
18 U.S.C. § 3585(b). Thus, Neill's position is that
the court intended to sentence him to ninety-two months minus
the thirteen months he had already spent in federal ...