Cooper v. United States
| Decision Date | 26 April 2021 |
| Docket Number | No.: 3:19-cv-371-TAV-DCP,No.: 3:18-cr-036-TAV-DCP-7,: 3:19-cv-371-TAV-DCP,: 3:18-cr-036-TAV-DCP-7 |
| Parties | KENNETH P. COOPER, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Eastern District of Tennessee |
Petitioner Kenneth Cooper has filed a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 [Doc. 711; Case No. 3:19-cv-371, Doc. 1].1 In his motion, he presents one ineffective-assistance-of-counsel claim. Petitioner thereafter filed a motion to amend [Case No. 3:19-cv-371, Doc. 5]. The government has responded in opposition to petitioner's § 2255 motion [Case No. 3:19-cv-371, Doc. 8]. Because, based on the record, it plainly appears that petitioner is not entitled to relief, it is not necessary to hold an evidentiary hearing,2 and petitioner's § 2255 motion [Doc. 711; Case No. 3:19-cv-371, Doc. 1] will be DENIED. Petitioner's motion to amend [Case No. 3:19-cv-371, Doc. 5] is GRANTED to the extent that the Court has considered the arguments contained therein.
On August 16, 2018, petitioner pleaded guilty to conspiracy to distribute fifty (50) grams or more of methamphetamine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A) [Docs. 157, 165]. The revised presentence investigation report ("PSR") ultimately deemed petitioner a career offender under the Sentencing Guidelines, based on his prior convictions for Attempt to Possess a Schedule II Controlled substance with Intent to Sell/Deliver and Sale of Schedule II Controlled Substance [PSR ¶¶ 80, 88-89]. Based on his status as a career offender, his criminal history score was increased from category III to category VI, and his adjusted offense level was increased from 32 to 37 [Id., ¶¶ 79-80, 94-95]. With a total offense level of 34 (accounting for a three-level reduction for acceptance of responsibility), and a criminal history category of VI, petitioner's guideline range was 262 to 327 months [Id., ¶ 110]. The government moved for a downward departure pursuant to United States Sentencing Guidelines § 5K1.1 [Doc. 362] and the Court granted the motion and sentenced petitioner to 156 months' imprisonment [Doc. 571].
Petitioner now asks the Court to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. § 2255, arguing that his counsel was constitutionally deficient in failing to ask for a continuance of his sentencing hearing until after the Supreme Court issued its decision in United States v. Davis, 139 S. Ct. 2319 (2019) [Doc. 711, p. 4; Case No. 3:19-cv-371, Doc. 1, p. 4]. Petitioner contends that, because counsel failed to request this continuance, he received an unconstitutional career-offender-enhanced sentence [Id.]. Although he provides no other argument in this regard, petitioner also asks the Court to "review hissentence in light of" the Sixth Circuit's decision in United States v. Havis, 927 F.3d 382 (6th Cir. 2019) [Id., p. 9].
Petitioner has also filed a motion to amend his § 2255 motion, seeking to add as an exhibit an e-mail from his defense counsel, stating that Davis "guts a bunch of the career offender sentencing guidelines" and "could dramatically reduce [petitioner's] sentence" [Doc. 5]. In this e-mail, defense counsel advises petitioner that "[n]o one knew this case was coming down, but you should still say I should have known" [Id. at 3].
The government responds, in relevant part,3 that, while the Supreme Court held in Davis that 18 U.S.C. § 924(c)(3)(B)'s definition of a crime of violence was unconstitutionally vague, petitioner was not convicted under § 924(c), but rather, was deemed a career offender under United States Sentencing Guidelines § 4B1.2 [Case No. 3:19-cv-371, Doc. 8, p. 3]. The government further argues that defense counsel was not ineffective in failing to postpone the sentencing hearing until after Havis, which the government admits precludes petitioner from being categorized as a career offender if sentenced today, because counsel was not required to predict developments in the law [Id. at 5-7].
In reply, petitioner admits that counsel is "not required to possess talismanistic [sic] powers to predict the future," but he argues that, by counsel's own admission, in his e-mail, he was aware that Davis was pending and that a decision was immediately forthcoming [Case No. 3:19-cv-371, Doc. 9, p. 2]. Accordingly, petitioner contends that counsel should have requested a continuance until Davis was published [Id.].
The Court must vacate, set aside, or correct a prisoner's sentence if it finds that "the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that 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. To obtain relief under § 2255 because of a constitutional error, the error must be one of "constitutional magnitude which had a substantial and injurious effect or influence on the proceedings." Watson v. United States, 165 F.3d 486, 488 (6th Cir. 1999) (citing Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)). A § 2255 petitioner has the burden of proving that he is entitled to relief by a preponderance of the evidence, Pough v. United States, 442 F.3d 959, 964 (6th Cir. 2006), and must clear a significantly higher hurdle than would exist on direct appeal. United States v. Frady, 456 U.S. 152, 166 (1982).
Claims of ineffective assistance of counsel are cognizable under § 2255. Massaro v. United States, 538 U.S. 500, 508-09 (2003). A petitioner alleging ineffective assistance of counsel must satisfy the two-part test set forth in Strickland v. Washington, 466 U.S.668, 687 (1987). First, he must identify specific acts or omissions to prove that counsel's performance was deficient and that counsel did not provide "reasonably effective assistance," Strickland, 466 U.S. at 687, as measured by "prevailing professional norms." Rompilla v. Beard, 545 U.S. 374, 380 (2005). Counsel is presumed to have provided effective assistance, and petitioner bears the burden of showing otherwise. Mason v. Mitchell, 320 F.3d 604, 616-17 (6th Cir. 2003); see also Strickland, 466 U.S. at 689 ().
Second, a petitioner must also establish "a reasonable probability that, but for [counsel's acts or omissions], the result of the proceedings would have been different." Strickland, 466 U.S. at 694. "An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Id. at 691; see also Smith v. Robbins, 528 U.S. 259, 285-86 (2000). Because a petitioner "must satisfy both prongs of Strickland to obtain relief on an ineffectiveness claim, the inability to prove either one of the prongs—regardless of which one—relieves the reviewing court of any duty to consider the other." Nichols v. United States, 563 F.3d 240, 249 (6th Cir. 2009) (en banc); accord Strickland, 466 U.S. at 697.
First, to the extent that petitioner's ineffective assistance of counsel claim is based on Davis, because petitioner's sentence would not be impacted by Davis, he cannot meethis burden of establishing either prong of Strickland. As background, in 2015, the Supreme Court struck down the so-called "residual clause" of the Armed Career Criminal Act's ("ACCA") definition of "violent felony" as unconstitutionally vague. Johnson v. United States, 576 U.S. 591, 606 (2015). Under the ACCA, an enhanced 15-year mandatory minimum sentence applied to violations of 18 U.S.C. § 922(g) if the defendant had three or more prior convictions for a "serious drug offense" or "violent felony." Id. at 593. The ACCA defined a "violent felony" as any crime punishable by imprisonment for a term exceeding one year that (1) "has as an element the use, attempted use or threatened use of physical force against the person of another" (Elements Clause); (2) "is burglary, arson, or extortion, involves use of explosives" (Enumerated Offenses Clause); or (3) "otherwise involves conduct that presents a serious potential risk of physical injury to another" (Residual Clause). Id. at 593-94 (quoting 18 U.S.C. § 924(e)(2)(B)). The Court struck down this last clause of the "violent felony" definition, leaving the remaining clauses intact. Id. at 606.
The Johnson decision ignited a deluge of litigation regarding similarly-worded definitions of "violent felonies" or "crimes of violence" in other statutes. For example, in Sessions v. Dimaya, the Supreme Court found that the residual clause of 18 U.S.C. § 16(b)'s definition of a "crime of violence," which stated that "any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense" was a"crime of violence," was also unconstitutionally vague. 138 S. Ct. 1204, 1211, 1216 (2018) (quoting 18 U.S.C. § 16(b)).
Likewise, in Davis, on which petitioner relies, the Supreme Court struck down the residual clause of 18 U.S.C. § 924(c)(3), which defined a "crime of violence" in part as a felony "that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." 139 S. Ct. 2319, 2324, 2336 (quoting 18 U.S.C. § 924(c)(3)). Section 924(c) provides that "any person who, during and in relation to any crime of violence or drug trafficking crime . . . for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of such crime, possesses a firearm" is subject to additional penalties in addition to the sentence for the underlying crime of violence...
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