Dubose v. United States
| Decision Date | 03 June 2020 |
| Docket Number | Cv. No. 2:17-cv-02396-SHM-tmp,Cr. No. 2:14-cr-20136-SHM-01 |
| Parties | PATRICK DUBOSE, Movant, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Western District of Tennessee |
Before the Court are the motion pursuant to 28 U.S.C. § 2255 ("§ 2255 motion") and motions to amend filed by Movant Patrick Dubose. (ECF Nos. 1, 8 & 9.) The motions to amend are GRANTED. On November 17, 2017, the United States filed a response contending that Movant's § 2255 motion is without merit. (ECF No. 5.) On January 8, 2018, Dubose filed a reply to the United States' response. (ECF No. 7.) For the reasons stated below, the § 2255 motion is DENIED.
On May 27, 2014, a federal grand jury in the Western District of Tennessee returned a single count indictment against Dubose charging him with possession of a firearm after a felony conviction. (Criminal ("Cr.") ECF No. 1.) On December 10-12, 2014, this Court presided at a jury trial, at which the jury found Dubose guilty as charged. (Cr. ECF Nos. 26-29.)
On April 27, 2015, Dubose filed a motion for a new trial, alleging that tapes provided by the police after trial constituted new evidence and that, had the tapes been available at trial, the jury would likely have acquitted Dubose. (Cr. ECF No. 37.) The Court denied the motion after determining that the new evidence would serve only to impeach the testimony of the task force officers, was not material to Dubose's guilt, and would not likely have produced an acquittal. (Cr. ECF No. 46.)
The Court conducted a sentencing hearing on July 31, 2015, at which Dubose was sentenced under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e)(1), to the statutory minimum of 180 months in prison. (Cr. ECF Nos. 48-49.) The ACCA requires a fifteen-year mandatory minimum sentence for a defendant convicted under 18 U.S.C. § 922(g) who has three prior convictions for a violent felony or a serious drug offense. 18 U.S.C. § 924(e)(1). On July 31, 2015, Dubose filed a notice of appeal. (Cr. ECF No. 50.) He contended that the Court had erred by denying the motion for a new trial. The United States Court of Appeals for the Sixth Circuit determined that the district court did not abuse its discretion by denying the motion and affirmed Dubose's conviction and sentence. United States v. Dubose, No. 15-5846 (6th Cir. June 2, 2016) (Cr. ECF No. 58), cert. denied, No. 16-6424 (Nov. 29, 2016). (Cr. ECF No. 61.)
On June 8, 2017, Movant filed the § 2255 motion alleging that:
(ECF No. 1-1 at 7.) Movant attempts to demonstrate cause and prejudice for his default of Issue 1 by alleging in Issue 2 that counsel provided ineffective assistance. (Id.) The Court will not address Issue 1 as a separate issue.
Dubose has raised a third claim in the motions to amend:
(3) Movant's § 922(g) conviction is invalid under Rehaif v. United States, 139 S. Ct. 2191 (2019).
"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) (citation and internal quotation marks omitted).
A § 2255 motion is not a substitute for a direct appeal. See Bousley v. United States, 523 U.S. 614, 621 (1998). "[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). This rule is not absolute:
If claims have been forfeited by virtue of ineffective assistance of counsel, then relief under § 2255 would be available subject to the standard of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). In those rare instances where thedefaulted claim is of an error not ordinarily cognizable or constitutional error, but the error is committed in a context that is so positively outrageous as to indicate a "complete miscarriage of justice," it seems to us that what is really being asserted is a violation of due process.
Even constitutional claims that could have been raised on direct appeal, but were not, will be 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) (); Peveler v. United States, 269 F.3d 693, 698-99 (6th Cir. 2001) (); 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 his "actual innocence." Bousley, 523 U.S. at 622.
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 ("Section 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), Section 2255 Rules. The Court may also direct the parties to provide additional information relating to the motion. Rule 7, Section 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, the judge may rely on his or her recollection of the prior case. Blanton v. United States, 94 F.3d 227, 235 (6th Cir. 1996); see also Blackledge v. Allison, 431 U.S. 63, 74 n.4 (1977) ( ). Defendant 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).
Dubose did not raise Issue 1 on direct appeal. He attempts to demonstrate cause and prejudice for his default of Issue 1 by alleging that counsel was ineffective for failing to raise the issue on appeal. "Attorney error that amounts to ineffective assistance of counsel can constitute 'cause' under the cause and prejudice test." Hinkle v. Randle, 271 F.3d 239, 245 (6th Cir. 2001), quoting Lucas v. O'Dea, 179 F.3d 412, 418 (6th Cir. 1999), citing Coleman v. Thompson, 501 U.S. 722, 754 (1991). To constitute "cause" to excuse default, the attorney error must satisfy the standards stated in Strickland v. Washington, 466 U.S. 668 (1984). To demonstrate deficient performance by counsel, a petitioner must demonstrate that "counsel's representation fell below an objective standard of reasonableness." Id. at 688.
A court considering a claim of ineffective assistance must apply a "strong presumption" that counsel's representation was within the "wide range" of reasonable professional assistance. [Strickland, 466 U.S.] at 689. Thechallenger's burden is to show "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id., at 687.
Harrington v. Richter, 562 U.S. 86, 104 (2011).
To demonstrate prejudice, a prisoner must establish "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694.1 "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.
It is not enough "to show that the errors had some conceivable effect on the outcome of the proceeding." [Strickland, 466 U.S.] at 693, 104 S. Ct. 2052. Counsel's errors must be "so serious as to deprive the defendant of a fair trial, a...
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