United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION AND ORDER
C REEVES, CHIEF JUDGE UNITED STATES DISTRICT COURT
Ronald Young Birdsong, Jr. has filed a motion to vacate, set
aside, or correct his sentence under 28 U.S.C. § 2255.
[Record No. 52] He alleges that his attorney was ineffective
and that he was improperly classified as a career offender
under United States Sentencing Guidelines
(“U.S.S.G.”) § 4B1.1. [Id.]
Birdsong’s § 2255 motion was referred to United
States Magistrate Judge Matthew Stinnett for the issuance of
a Report and Recommendation pursuant to 28 U.S.C. §
636(b)(1)(B). Following a full review of the issues
presented, Magistrate Judge Stinnett recommended that
Birdsong’s motion be denied. [Record No. 62]
Court makes a de novo determination of those
portions of the Magistrate Judge’s recommendations to
which objections are made, 28 U.S.C. § 636(b)(1)(C).
Thomas v. Arn, 474 U.S. 140, 150 (1985). However,
Birdsong has not filed timely objections. The undersigned has
examined the record and agrees with Magistrate Judge Stinnett
that Birdsong’s claims are meritless and attempts to
relitigate issues decided on direct appeal. Accordingly, his
motion for collateral relief will be denied.
pleaded guilty to bank robbery in violation of 18 U.S.C.
§ 2113(a). [Record No. 40] Upon preparation of a
Presentence Investigation Report, the United States Probation
Office recommended that Birdsong be sentenced as a career
offender pursuant to U.S.S.G. § 4B1.1. Birdsong did not
object to his career offender designation. Thereafter, he was
sentenced to a term of imprisonment of 235 months and a
three-year term of supervised release. [Record No. 40]
appealed his sentence to the United States Court of Appeals
for the Sixth Circuit, alleging that the Court erred when it:
(1) concluded he was a career offender because he lacked the
requisite number of qualifying predicate offenses; (2) erred
by imposing a five-level enhancement for possession of a
firearm; (3) improperly calculated his offense level; and (4)
failed to adequately explain its reasons for sentencing him
as a career offender. Birdsong further asserted that the
Court erred when it considered his history of sexual abuse
and addiction as factors that warranted a lengthier sentence
rather than evaluating these matters as mitigating. The Sixth
Circuit affirmed Birdsong’s conviction and sentence.
[Record No. 50] Relevant to his current § 2255 motion,
the Sixth Circuit explained that he had the requisite number
of predicate offenses to qualify as a career offender under
U.S.S.G. § 4B1.1. [Id. at 3.] Additionally, it
noted that his armed bank robbery conviction qualified as a
prior crime of violence and Birdsong conceded that his
second-degree robbery conviction qualified as a crime of
then timely filed a petition under 28 U.S.C. § 2255.
[Record No. 52] He asserts that his counsel was ineffective
for failing to make objections to his underlying convictions
that served as predicate offenses for the career offender
enhancement and for failing to investigate his prior
convictions. [Id.] And Birdsong continues to claim
that his predicate offenses do not qualify as crimes of
prevail on a § 2255 claim, a prisoner must allege
“an error of constitutional magnitude, a sentence
imposed outside the statutory limits, or an error of fact or
law that was so fundamental as to render the entire
proceeding invalid.” Mallett v. United States,
334 F.3d 491, 496-97 (6th Cir. 2003). A defendant’s
right to effective assistance of counsel is violated when
defense counsel’s performance falls below an objective
standard of reasonableness and the defendant is prejudiced by
counsel’s performance. Henness v. Bagley, 766
F.3d 550, 554 (6th Cir. 2014) (citing Strickland v.
Washington, 466 U.S. 668, 687 (1984)). “[T]o
satisfy the prejudice requirement, the defendant must show
that there is a reasonable probability that, but for
counsel’s errors, he would not have pleaded guilty and
would have insisted on going to trial” Hill v.
Lockhart, 474 U.S. 52, 59 (1985); see also United
States v. Wynn, 663 F.3d 845, 851 (6th Cir. 2011). A
court “must indulge a strong presumption that
counsel’s conduct falls within the wide range of
reasonable professional assistance.”
Strickland, 466 U.S. at 689. The standard is highly
deferential to counsel. Id.
first asserts that his counsel was ineffective for not
objecting to the career offender enhancement and by failing
to investigate his prior predicate offenses. Birdsong’s
former attorney, Derek Gordon, provided an affidavit stating
that he reviewed the presentence report, Birdsong’s
prior Kentucky and federal criminal case files, and
determined that Birdsong had at least two qualifying
convictions for crimes of violence. [Record No. 60-1] He
believed (and still believes) that Birdsong qualified as a
career offender. Therefore, he did not object to the career
offender enhancement recommendation. [Id.]
Additionally, the Sixth Circuit concluded that Birdsong had
the predicate offenses to be properly considered a career
was not ineffective for failing to investigate
Birdsong’s prior convictions, concluding that Birdsong
did qualify as a career offender, and choosing to not make a
meritless objection. Gordon stated that he did investigate
Birdsong’s prior convictions and reviewed his prior
case files before concluding that Birdsong qualified as a
career offender. [Record No. 60-1] But even if he had not
investigated the prior convictions, “[a] defendant who
alleges a failure to investigate on the part of his counsel
must allege with specificity what the investigation would
have revealed and how it would have altered the
outcome.” United States v. Pratt, No. 7:
15-10-DCR, 2019 U.S. Dist. LEXIS 34495, at *7 (E.D. Ky. Mar.
4, 2019) (citing United States v. Hassan, Nos.
12-cr-20523, 14-cv-11592, 2014 U.S. Dist. LEXIS 150258, at *5
(E.D. Mich. Oct. 21, 2014)). Birdsong cannot show that any
further investigation would result in a different outcome
because he was properly classified as a career offender.
Gordon was not ineffective for failing to object to the
career offender enhancement because any objection would have
been meritless. See United States v. Jennings, 2011
U.S. Dist. LEXIS 63471 (E.D. Ky. June 14, 2011)
(“Failure to raise meritless arguments does not
constitute ineffective assistance of counsel”);
United States v. West, No. 12-01-ART-(2), 2014 U.S.
Dist. LEXIS 133734, at *9 (E.D. Ky. Sept. 22, 2014) (citing
Green v. United States, 23 F.3d 406 (6th Cir.
1994)). Further, Birdsong cannot show that he suffered any
prejudice because of counsel’s failure to object to his
classification as a career offender. Accordingly, he has not
established that his counsel was ineffective.
also asserts that his prior predicate offenses do not qualify
as violent offenses. He attached his previous appellate brief
in support of his argument. As noted above, the Sixth Circuit
addressed previously whether his prior convictions count as
predicate offenses and determined that at least two of them
count as qualifying offenses for the career offender
enhancement. As Magistrate Judge Stinnett correctly notes, a
“§ 2255 petitioner is precluded from relitigating
an issue already raised on appeal absent an exceptional
circumstance.” [Record No. 62 (citing DuPont v.
United States, 76 F.3d 108, 110 (6th Cir. 1996)];
Wright v. United States, 182 F.3d 458, 467 (6th Cir.
1999). Because the Sixth Circuit has already addressed
Birdsong’s claim that his prior convictions do ...