United States District Court, E.D. Kentucky, Northern Division, Covington
MEMORANDUM OPINION AND ORDER
C Reeves, Chief Judge.
David Jennings pleaded guilty in 2006 to one count of
distributing cocaine and was sentenced to 188 months'
imprisonment, to be followed by six years of supervised
release. [Record No. 37] He appealed the sentence to the
United States Court of Appeals for the Sixth Circuit. The
Sixth Circuit determined that Jennings had been improperly
sentenced as a career offender under United States Sentencing
Guidelines § 4B1.1 and remanded the case for further
proceedings. [Record No. 57] Following remand, the
career-offender designation was removed, Jennings'
criminal history category was amended to IV, and he was
sentenced to 120 months' imprisonment to be followed by
six years of supervised release. [Record Nos. 72, 81]
quickly violated the conditions of his supervised release
upon being released from custody in early 2015. As a result,
his term of supervised release was revoked and he was
sentenced to 18 months' imprisonment. [Record No. 167] He
completed the 18-month sentence and resumed serving his term
of supervised release on August 23, 2016. [Record No. 169]
Unfortunately, Jennings again violated the conditions of his
supervised release. This time, he was charged with
first-degree trafficking in controlled substances and
operating on a suspended license in Kenton County, Kentucky
on February 8, 2019. [Record No. 176] Jennings stipulated to
the violations and his term of supervised release was revoked
for a second time on March 7, 2019. [Record No. 176] He was
sentenced to 27 months' imprisonment, consecutive to any
sentence imposed for the state court offenses. [Record No.
178] Jennings filed a notice of appeal, but voluntarily
dismissed the appeal in July 2019. [Record Nos.179, 193] On
October 21, 2019, Jennings filed a motion in this Court
challenging the 27-month sentence under 28 U.S.C. §
2555. [Record No. 195]
prevail on a § 2255 motion alleging constitutional
error, the movant must establish an error of constitutional
magnitude, which had a substantial and injurious effect on
the proceedings. Hamblen v. United States, 591 F.3d
471, 473 (6th Cir. 2009). Non-constitutional errors, such as
misapplication of the sentencing guidelines, ordinarily are
not cognizable in § 2255 motions. Snider v. United
States, 908 F.3d 183, 189 (6th Cir. 2018). Where such
claims are not raised at trial or on direct appeal, they are
waived on collateral review “except where the errors
amount to something akin to a denial of due process.”
Grant v. United States, 72 F.3d 503, 506 (6th Cir.
1996). Rule 4 of the Rules Governing § 2255 Proceedings
requires the Court to promptly examine the § 2255
motion. If it is clear from the record that the movant is not
entitled to relief, the Court must dismiss the habeas
proceeding. See § 2255(b).
arguments spring from his belief that his 27-month revocation
sentence was the result of an erroneous guidelines
calculation. As noted above, such claims generally may not be
asserted in a § 2255 motion. Additionally, Jennings
voluntarily dismissed his appeal, forfeiting this claim for
purposes of § 2255. Dillon v. United States,
188 F.3d 507 (6th Cir. 1999) (citing United States v.
Frady, 456 U.S. 152 (1986)). Regardless, the Court has
examined Jennings' motion and finds his claims are
Jennings acknowledges in his motion, the advisory sentencing
range is driven by the grade of the violation and the
defendant's criminal history category. See
U.S.S.G. 7B1.4. The more serious charge resulting in
revocation of Jennings' supervised release was
trafficking in a controlled substance first degree, first
offense (4 grams of cocaine or more) in Kenton County
District Court. See K.R.S. § 218A.1412(1)(a).
Jennings stipulated to this offense, which is a Class C
felony under Kentucky law, subjecting the offender to five to
ten years of imprisonment. See K.R.S. §§
218A.1412(3)(a), 532.060. A Grade A violation for guidelines
purposes is “conduct constituting a federal, state, or
local offense punishable by a term of imprisonment exceeding
one year that . . . is a controlled substance offense.”
U.S.S.G. § 7B1.1. While Jennings argues fervently that
this trafficking offense constitutes a Grade B violation
under the Sentencing Guidelines, it is clearly a Grade A
contrary to Jennings' suggestion, the Court did not
utilize Criminal History Category VI in calculating his
sentence. Instead, the Court applied Criminal History
Category IV, which Jennings apparently agrees is correct.
According to the Revocation Table at U.S.S.G. § 7B1.4, a
Grade A violation and Jennings' criminal history category
of IV produces a sentencing range of 24 to 30 months'
imprisonment. He was sentenced to 27 months, squarely within
the properly-calculated range.
makes vague claims concerning the adequacy of his
attorney's performance during the supervised release
proceedings. He claims that counsel failed to adequately
investigate and prepare for the violation hearing and file
“pretrial motions.” Jennings also claims that his
attorney did not investigate the class of his state felony
and the appropriate grade of the violation.
familiar standard set out in Strickland v.
Washington, 466 U.S. 668 (1984), applies to ineffective
assistance of counsel claims. First, the defendant
“must show that counsel's performance was
deficient”-that is, it fell below an objective standard
of reasonableness. United States v. Gandy, 926 F.3d
248, 261 (6th Cir. 2019) (citing Strickland, 466
U.S. 687-88). Second, the defendant must show that
counsel's deficient performance prejudiced the defense.
has not pointed to any particular conduct by counsel that he
believes falls below an objective standard of reasonableness.
Further, as previously explained, Jennings' sentencing
range was correctly calculated and he was sentenced within
that range. Accordingly, there is no suggestion that he was
prejudiced by counsel's actions in connection to the
the Court denies a motion for relief under § 2255, it
must decide whether to grant a certificate of appealability,
which would allow the movant to appeal the adverse decision.
See Rule 11 of the Rules Governing § 2255
Proceedings; 28 U.S.C. § 2253(c)(1)(B). A certificate of
appealability may be issued only when the defendant has
“made a substantial showing of the denial of a
constitutional right.” § 2253(c)(2). To satisfy
this burden, the movant must show “that reasonable
jurists could debate whether (or, for that matter, agree
that) the petition should have been resolved in a different