Elenniss v. United States

• Docket Number: 5:19CV0667,5:16CR0331
• Decision Date: 14 March 2022
• Parties: THEODORE W. ELENNISS, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Northern District of Ohio

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THEODORE W. ELENNISS, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

Nos. 5:19CV0667, 5:16CR0331

United States District Court, N.D. Ohio, Eastern Division

March 14, 2022

MEMORANDUM OF OPINION AND ORDER [RESOLVING ECF NO 78]

Benita Y. Pearson, United States District Judge

Pending is Petitioner Theodore W. Elenniss's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (ECF No. 78).^[1] The Court has been advised, having read the file and reviewed the applicable law. For the reasons stated below, the Motion is denied.

I. Background

After a jury trial in March 2017, Petitioner was convicted of maintaining a drug-involved premises, 21 U.S.C. § 856 and being a felon in possession of firearms and ammunition, 18 U.S.C. § 922(g)(1). In September 2017, the Court sentenced Petitioner to 84 months of imprisonment on both counts to be followed by three years of supervised release. See Judgment in a Criminal Case (ECF No. 66); Transcript of Sentencing Proceedings (ECF No. 73). Petitioner appealed the denial of his motion for leave to file a motion for a judgment of acquittal, and, in the alternative, for a new trial. In April 2018, the Court of Appeals for the Sixth Circuit affirmed the district court's judgment. United States v. Elenniss, 729 Fed.Appx. 422 (6th Cir. 2018) (ECF No. 74).

In March 2019, Petitioner filed the instant Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (ECF No. 78). Elenniss accuses his trial counsel of the following: (1) failing to investigate and/or call witnesses whose testimony would have been helpful to the defense; (2) failing to determine Petitioner's whereabouts when the firearms were brought on the property; (3) failing to prepare Petitioner to testify; (4) failing to argue the constitutionality of the trash pull; (5) being ineffective in questioning Petitioner about his former conviction; (6) failing to present a viable defense; and, (7) failing to object to a constructive amendment or prejudicial variance.

II. Discussion

A. Section 2255 Legal Standards

“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) (internal quotation marks and citation omitted). “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) (internal quotation marks and citation omitted). “[N]o hearing is required[, however, ] 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. (internal quotation marks and citation omitted). A 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).

Proceedings under § 2255 are not a substitute for direct appeal. Massaro v. United States, 538 U.S. 500, 503-504 (2003). Therefore, “the general rule [is] that claims not raised on direct appeal may not be raised on collateral review unless the petitioner shows cause and prejudice” to excuse the procedural default. Id. at 504. A petitioner may also seek to overcome the default on the ground “that he is ‘actually innocent' ” of the crime of conviction. Bousley v. United States, 523 U.S. 614, 622 (1998) (quoting Murray v. Carrier, 477 U.S. 478, 496 (1986)).

B. Evidentiary Hearing

In Amr v. United States, 280 Fed.Appx. 480 (6th Cir. 2008), the Court of Appeals for the Sixth Circuit held that a prisoner was not entitled to a hearing on an ineffective assistance of counsel claim when the claim was conclusively refuted by the record. Id. at 485-86. “[A] motion under § 2255 is ordinarily presented to the judge who presided at the original conviction and sentencing of the prisoner. In some cases, the judge's recollection of the events at issue may enable [her] summarily to dismiss a § 2255 motion. . . .” Blackledge v. Allison, 431 U.S. 63, 74 n.4 (1977). The Court finds that the within motion may be resolved without an evidentiary hearing because the judge's recollection, files and records in this case conclusively show that Petitioner is not entitled to relief under § 2255. Ross v. United States, 339 F.3d 483, 490 (6th Cir. 2003).

C. Ineffective Assistance of Trial Counsel

The Supreme Court has established a two-part test for determining whether an attorney rendered ineffective assistance. Strickland v. Washington, 466 U.S. 668, 689 (1984). “First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. at 687. “The proper measure of attorney performance remains simply reasonableness under prevailing professional norms.” Id. at 688. “To establish prejudice, Petitioner must show a reasonable probability that, but for his attorney's errors, the proceedings would have produced a different result.” Ross v. United States, 339 F.3d 483, 492 (6th Cir. 2003). “When applying Strickland, if we can more easily dispose of an ineffective assistance claim based on lack of prejudice, we should follow that route.” Id.

“Petitioners claiming ineffective assistance of counsel under Strickland have a heavy burden of proof.” Whiting v. Burt, 395 F.3d 602, 617 (6th Cir. 2005). The petitioner must demonstrate the constitutional violation because it is “presumed that the lawyer is competent.” United States v. Cronic, 466 U.S. 648 (1984). Here, Petitioner's arguments fail the Strickland test because he cannot show deficiency nor actual prejudice.

While trial counsel's tactical decisions are not completely immune from Sixth Amendment review, they must be particularly egregious before they will provide a basis for relief. Martin v. Rose, 744 F.2d 1245, 1250 (6th Cir. 1984). Here, the facts show that Petitioner's trial counsel was competent.

Petitioner also fails to meet the second prejudice prong of Strickland. “[A]ctual ineffectiveness claims alleging a deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice.” Strickland, 466 U.S. at 693. “Attorney errors come in an infinite variety and are as likely to be utterly harmless in a particular case as they are to be prejudicial.” Id. “Representation is an art, and an act or omission that is unprofessional in one case may be sound or even brilliant in another. Even if a defendant shows that particular errors of counsel were unreasonable, therefore, the defendant must show that they actually had an adverse effect on the defense.” Id. In other words, “[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.

In addition, the court must consider the cumulative effect of the alleged errors, since “[e]rrors that might not be so prejudicial as to amount to a deprivation of due process when considered alone, may cumulatively produce a trial setting that is fundamentally unfair.” United States v. Hughes, 505 F.3d 578, 597 (6th Cir. 2007) (quoting Walker v. Engle, 703 F.2d 959, 963 (6th Cir. 1983)). Thus, examining an ineffective assistance of counsel claim requires the court to consider “the combined effect of all acts of counsel found to be constitutionally deficient, in light of the totality of the evidence in the case.” Lundgren v. Mitchell, 440 F.3d 754, 770 (6th Cir. 2006).

Here, Petitioner asserts that but for counsel's failures, Petitioner would not have been convicted, which satisfies Strickland's prejudice requirement. See Petitioner's Reply (ECF No. 83) at PageID #: 1581 (“but for trial counsel's deficient performance, there would have been a reasonable probability sufficient to undermine the confidence in Elenniss' conviction”). This assertion is nonsensical, as it ignores the immense amount of evidence against Petitioner.

1.Trial Counsel Effectively Called Witnesses

Petitioner claims that trial counsel failed to adequately investigate the facts of the case. “Under Strickland ‘counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.' ” Stermer v Warren, 959 F.3d 704, 739 (6th Cir. 2020) (quoting Strickland, 466 U.S. at 691). However, “a petitioner cannot show deficient performance or prejudice resulting from a failure to investigate if the petitioner does not make some showing of what evidence counsel should have pursued and how such evidence would have been material.” Hutchison v. Bell, 303 F.3d 720, 748-49 (6th Cir. 2002) (citing Austin v. Bell, 126 F.3d 843, 848 (6th Cir. 1997); Martin v. Mitchell, 280 F.3d 594, 608 (6th Cir. 2002)). While “[d]efense attorneys do not have an absolute duty to investigate, ” Goldsby v. United States, 152 Fed.Appx. 431, 435 (6th Cir. 2005), the failure to investigate and interview promising witnesses constitutes negligence, not trial strategy. See Workman v. Tate, 957 F.2d 1339, 1345 (6th Cir. 1992). “In judging the...