Blake v. United States, Cv. No. 2:13-cv-02663-JPM-cgc

• Decision Date: 04 August 2016
• Docket Number: Cr. No. 2:10-cr-20003-JPM-1,Cv. No. 2:13-cv-02663-JPM-cgc
• Parties: SEAN BLAKE, Movant, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Western District of Tennessee

SEAN BLAKE, Movant, v. UNITED STATES OF AMERICA, Respondent.

Cv. No. 2:13-cv-02663-JPM-cgc

Cr. No. 2:10-cr-20003-JPM-1

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION

August 4, 2016

ORDER DENYING MOTION PURSUANT TO 28 U.S.C. § 2255, DENYING CERTIFICATE OF APPEALABILITY, CERTIFYING THAT AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

Before the Court is a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody ("§ 2255 Motion") filed by Movant, Sean Blake, Bureau of Prisons register number 23950-076, who is currently incarcerated at the Federal Correctional Institution Low in Forrest City, Arkansas. (§ 2255 Mot., Blake v. United States, No. 2:13-cv-02663-JPM-cgc (W.D. Tenn.), ECF No. 1; see Change of Address Notice, id., ECF No. 16.) For the reasons stated below, the Court DENIES the § 2255 Motion.

I. PROCEDURAL HISTORY

A. Criminal Case Number 10-20003

On January 5, 2010, a federal grand jury returned a four-count indictment charging that Blake unlawfully, knowingly, and intentionally distributed a mixture and substance containing a detectable amount of cocaine base (crack cocaine) in violation of 21 U.S.C. § 841(a)(1) on (1) September 3, 2009; (2) September 8, 2009; (3) September 17, 2009; and (4) September 23, 2009. (Indictment, United States v. Blake, No. 2:10-cr-20003-JPM-1 (W.D. Tenn.), ECF No. 3.) Pursuant to a written plea agreement, Blake appeared before the Court on August 3, 2011, and entered a guilty plea as to Count One. (Plea Agreement, id., ECF No. 48; Min. Entry, id., ECF No. 45.) As a condition of the plea, the United States dismissed Counts Two, Three, and Four. (Plea Agreement ¶ 1, id., ECF No. 48.) The factual basis for the charges is stated in the presentence investigation report ("PSR"):

The Offense Conduct

4. According to the investigative file, on September 3, 2009, an undercover detective (UC) with the Memphis Police Department Organized Crime Unit (MPD OCU) met with Sean Blake at 1484 Maplewood Street, Memphis, TN, in order to purchase crack cocaine. The UC provided Blake with $10 in exchange for crack cocaine (0.1 grams TNW).

Relevant Conduct

5. According to the investigative file, on September 8, 2009, a UC with the MPD OCU met with Sean Blake at 1484 Maplewood Street, Memphis, TN, in order to purchase crack cocaine. The UC provided Blake with $10 in exchange for crack cocaine (0.1 grams TNW).

6. On September 10, 2009, a UC with the MPD OCU met with Sean Blake at 1484 Maplewood Street, Memphis TN, in order to purchase crack cocaine. The UC provided Blake with $10 in exchange for crack cocaine (0.08 grams TNW).

7. On September 14, 2009, a UC with the MPD OCU met with Sean Blake at 1484 Maplewood Street, Memphis TN, in order to purchase crack cocaine. The UC provided Blake with $10 in exchange for crack cocaine (0.1 grams TNW).

8. On September 17, 2009, a UC with the MPD OCU met with Sean Blake at 1484 Maplewood Street, Memphis TN, in order to purchase crack cocaine. The UC provided Blake with $15 in exchange for crack cocaine (0.09 grams TNW).

9. On September 23, 2009, a UC with the MPD OCU met with Sean Blake at 1484 Maplewood Street, Memphis TN, in order to purchase crack cocaine. The UC provided Blake with $20 in exchange for crack cocaine (0.07 grams TNW).

10. The total amount of cocaine base sold by the defendant from September 3, 2009, until September 23, 2009, was 0.54 grams TNW.

. . . .

Adjustment for Acceptance of Responsibility

13. The defendant submitted the following signed statement:

I, Sean Blake, admit that I am guilty of the crime charged in Count One of the Indictment. I admit that I sold crack cocaine, which violated the law of the United States of America. I am sorry for the trouble I have caused my family, myself, my community, and the court. I will never do this again, and I realize the seriousness of my actions.

(PSR ¶¶ 4-10, 13.)

At a hearing on December 19, 2011, the Court sentenced Blake to a total term of imprisonment of 151 months, to be followed by a four-year period of supervised release. (Min. Entry, United States v. Blake, No. 2:10-cr-20003-JPM-1 (W.D. Tenn.), ECF No. 57.)¹ Judgment was entered on the same day. (J. in a Criminal Case, id., ECF No. 58.) Blake filed a notice of appeal on December 23, 2011. (Notice of Appeal, id., ECF No. 60.) On August 27, 2012, the Sixth Circuit affirmed the district court's judgment. United States v. Blake, 496 F. App'x 584 (6th Cir. 2012).

B. Case Number 13-2663

On August 22, 2013, Blake filed a pro se Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody ("§ 2255 Motion"). (§ 2255 Mot., Blake v. United States, No. 2:13-cv-02663-JPM-cgc (W.D. Tenn.), ECF No. 1.) This motion presents the following ineffective assistance of counsel issues:

1. "Counsel failed to present mitigating evidence at sentencing";

2. "Counsel failed to interview witnesses in regards to the petitioner's substance abuse, mental health, d[y]sfunctional background, and growing up in poverty"; and

3. "Counsel rendered ineffective [a]ssistance of [c]ounsel when counsel abandoned the challenge to the Career Offender Enhancement."

(§ 2255 Mot. at PageID 3-4.) Blake also asserts that the asserted grounds for relief were not previously presented because "[c]ounsel failed to present these issue[s] at sentencing and on [d]irect [a]ppeal." (Id. at 5.)

On June 19, 2014, the Court issued an order directing the Government to respond. (Order Directing Gov't to Respond, Blake v. United States, No. 2:13-cv-02663-JPM-cgc (W.D. Tenn.), ECF No. 2.) The Government filed its response on August 28, 2014. (Resp. to § 2255 Mot., id., ECF No. 5.) Blake filed a reply on June 26, 2015. (Reply, id., ECF No. 10.)

On January 28, 2016, Blake filed a motion to supplement his § 2255 Motion in light of the Supreme Court's decision in Johnson v. United States, 135 S. Ct. 2551 (2015). (Mot. to Suppl., id., ECF No. 11.) On February 2, 2016, the Court granted Blake's motion to supplement and directed the Government to supplement its response. (Order Granting Mot. to Suppl., id., ECF No. 12.) The Government responded in opposition to Blake's supplemental claim onFebruary 8, 2016. (Resp. to § 2255 Suppl., id., ECF No. 13.) Blake filed a reply on March 2, 2016. (Reply, id., ECF No. 14.)

II. THE LEGAL STANDARDS

Pursuant to 28 U.S.C. § 2255(a),

[a] prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

"A prisoner seeking relief under 28 U.S.C. § 2255 must allege either: '(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.'" Short v. United States, 471 F.3d 686, 691 (6th Cir. 2006) (quoting Mallett v. United States, 334 F.3d 491, 496-97 (6th Cir. 2003)).

"[A] § 2255 motion 'is not a substitute for a direct appeal.'" Ray v. United States, 721 F.3d 758, 761 (6th Cir. 2013) (quoting Regalado v. United States, 334 F.3d 520, 528 (6th Cir. 2003)). "[N]onconstitutional claims that could have been raised on appeal, but were not, may not be asserted in collateral proceedings." Stone v. Powell, 428 U.S. 465, 477 n.10 (1976). "Defendants must assert their claims in the ordinary course of trial and direct appeal." Grant v. United States, 72 F.3d 503, 506 (6th Cir. 1996).

Even constitutional claims that could have been raised on direct appeal, but were not, are barred by procedural default unless the defendant demonstrates cause and prejudice sufficient to excuse his failure to raise these issues previously. El-Nobani v. United States, 287 F.3d 417, 420 (6th Cir. 2002) (withdrawal of guilty plea); Peveler v. United States, 269 F.3d 693, 699-700 (6thCir. 2001) (new Supreme Court decision issued during pendency of direct appeal); Phillip v. United States, 229 F.3d 550, 552 (6th Cir. 2000) (trial errors). Alternatively, a defendant may obtain review of a procedurally defaulted claim by demonstrating that he is "actually innocent." Bousley v. United States, 523 U.S. 614, 622 (1998).

After a § 2255 motion is filed, it is reviewed by the Court and, "[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion." Rule 4(b), Rules Governing Section 2255 Proceedings for the United States District Courts ("§ 2255 Rules"). "If the motion is not dismissed, the judge must order the United States attorney to file an answer, motion, or other response within a fixed time, or to take other action the judge may order." Id. The movant is entitled to reply to the Government's response. Rule 5(d), § 2255 Rules. The Court may also direct the parties to provide additional information relating to the motion. Rule 7, § 2255 Rules.

"In reviewing a § 2255 motion in which a factual dispute arises, 'the habeas court must hold an evidentiary hearing to determine the truth of the petitioner's claims.'" Valentine v. United States, 488 F.3d 325, 333 (6th Cir. 2007) (quoting Turner v. United States, 183 F.3d 474, 477 (6th Cir. 1999)). "[N]o hearing is required if the petitioner's allegations cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact." Id. (quoting Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999)). Where the judge considering the § 2255 motion also presided over the criminal case,...