Gamble v. United States

• Decision Date: 29 January 2020
• Docket Number: Cr. No. 14-20171,Cv. No. 16-02527
• Parties: JEREMIAH GAMBLE, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Western District of Tennessee

JEREMIAH GAMBLE, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

Cv. No. 16-02527

Cr. No. 14-20171

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION

January 29, 2020

ORDER

Before the Court is Petitioner Jeremiah Gamble's November 15, 2016 amended pro se motion seeking to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 (the "Amended § 2255 Motion"). (ECF No. 11.)¹ Gamble filed a supplement to the Amended § 2255 Motion on December 1, 2016, adding new grounds for relief.² (ECF No. 12.) The government responded to the Amended § 2255 Motion on January 17, 2018. (ECF No. 25.) Also before the Court is Gamble's August 26, 2019 pro se motion toamend his Amended § 2255 Motion (the "Motion to Amend"). (ECF No. 30.) On December 11, 2019, Gamble supplemented the Motion to Amend with his proposed amended pleading. (ECF No. 32.)

For the following reasons, Gamble's Amended § 2255 Motion and Motion to Amend are DENIED.

I. Background

On January 29, 2015, a federal grand jury in the Western District of Tennessee returned a twelve-count fourth superseding indictment against numerous defendants, including Gamble. (Cr. ECF No. 303.) The indictment charged Gamble with one count of conspiracy to possess with intent to distribute, and to distribute, cocaine, in violation of 21 U.S.C. § 846. (Id. ¶¶ 1, 19.) On July 10, 2015, Gamble pled guilty to the offense charged pursuant to a plea agreement. (Cr. ECF Nos. 460-61.)

The United States Probation Office prepared a Presentence Investigation Report (the "PSR"). (Jan. 29, 2016 Revised PSR, Cr. ECF No. 1002.) The PSR calculated Gamble's recommended sentencing range under the 2014 edition of the United States Sentencing Commission Guidelines Manual (the "U.S.S.G." or the "Guidelines"). (Id. ¶ 24.) Gamble's base offense level was 24. (Id. ¶ 25.) He was subject to a two-level enhancement for possession of a dangerous weapon during commission of the offense. (Id. ¶ 26.) Gamble's adjusted offense level was 26. (Id. ¶ 30.)

Gamble was a career offender under U.S.S.G. § 4B1.1 and subject to a further sentencing enhancement. (Id. ¶ 31.) The PSR identified two prior felony convictions of a crime of violence or a controlled substance offense: (1) a 2005 Tennessee conviction for possession of cocaine with intent to manufacture, sell, or deliver; and (2) a 2011 Tennessee conviction for aggravated assault. (Id. ¶¶ 31, 40, 51.) Gamble's offense level was 32 based on his career offender status. (Id. ¶ 31.) The offense level was reduced three levels to 29 for acceptance of responsibility. (Id. ¶¶ 32-34.) Gamble's criminal history category was VI. (Id. ¶ 58.) Based on his total offense level of 29 and his criminal history category of VI, Gamble's recommended Guidelines range was 151-188 months. (Id. ¶ 90.)

On March 3, 2016, Gamble was sentenced. (Cr. ECF No. 790.) The Court adopted the PSR without objection. (Id.) Gamble was sentenced to 151 months in prison and 3 years of supervised release. (Cr. ECF No. 792 at 2-3.) Gamble did not appeal his conviction or his sentence.

On June 28, 2016, Gamble filed a pro se motion seeking to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 (the "Initial § 2255 Motion"). (ECF No. 1.) In the Initial § 2255 Motion, Gamble sought relief only under Johnson v. United States, 135 S. Ct. 2551 (2015). On September 22, 2016, the government responded to the Initial § 2255 Motion. (ECF No. 7.)On November 15, 2016, Gamble filed the Amended § 2255 Motion, which asserted non-Johnson grounds for relief. (ECF No. 11.) On December 1, 2016, Gamble supplemented the Amended § 2255 Motion, asserting additional non-Johnson grounds for relief. (ECF No. 12.) On November 6, 2017, the Court denied Gamble's Initial § 2255 Motion and directed the government to respond to Gamble's Amended § 2255 Motion. (ECF No. 15.) On January 17, 2018, the government responded to the Amended § 2255 Motion. (ECF No. 25.) On December 11, 2019, Gamble filed a further supplement to the Amended § 2255 Motion, in which he set out additional analysis of the grounds for relief stated in the Amended § 2255 Motion. (ECF No. 31.)

On August 26, 2019, Gamble filed the Motion to Amend. (ECF No. 30.) On December 11, 2019, Gamble supplemented the Motion to Amend with his proposed amended pleading. (ECF No. 32.) The government has not responded to the Motion to Amend.

II. Legal Standards

A. Section 2255

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, maymove 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) (quotation marks and citation omitted). A prisoner must file his § 2255 motion within one year of the latest of:

(1) the date on which the judgment of conviction becomes final;

(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;

(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2255(f).

A § 2255 motion is not a substitute for a direct appeal. Ray v. United States, 721 F.3d 758, 761 (6th Cir. 2013). "[C]laims not raised on direct appeal," which are thus procedurally defaulted, "may not be raised on collateral reviewunless the petitioner shows cause and prejudice." Massaro v. United States, 538 U.S. 500, 504 (2003) (citing United States v. Frady, 456 U.S. 152, 167-68 (1982)). Alternatively, a petitioner may obtain review of a procedurally defaulted claim by demonstrating his "actual innocence." Bousley v. United States, 523 U.S. 614, 622-23 (1998).

The procedural default 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. In those rare instances where the defaulted 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," . . . what is really being asserted is a violation of due process.

Grant v. United States, 72 F.3d 503, 506 (6th Cir. 1996) (citation omitted). To establish a claim that ineffective assistance of counsel has deprived a defendant of his Sixth Amendment right to counsel, "[f]irst, the defendant must show that counsel's performance was deficient. . . . Second, the defendant must show that the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687 (1984). "Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable." Id.

To demonstrate deficient performance by counsel, a petitioner must demonstrate that "counsel's representation fell below an objective standard of reasonableness." Id. at 688. In considering a claim of ineffective assistance, a court "must apply a 'strong presumption' that counsel's representation was within the 'wide range' of reasonable professional assistance. The challenger'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.'" Harrington v. Richter, 562 U.S. 86, 104 (2011) (citation omitted) (quoting Strickland, 466 U.S. at 687, 689). "A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Strickland, 466 U.S. at 689.

To demonstrate prejudice, a petitioner must establish "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.'" Humphress v. United States, 398 F.3d 855, 859 (6th Cir. 2005) (quoting Strickland, 466 U.S. at 694). "In assessing prejudice under Strickland, the question is not whether a court can be certaincounsel's performance had no effect on the outcome or whether it is possible a reasonable doubt might have been established if counsel acted differently. . . . The likelihood of a different result must be substantial, not just conceivable." Richter, 562 U.S. at 111-12 (citations omitted).

"Surmounting Strickland's high bar is never an easy task." Padilla v. Kentucky, 559 U.S. 356, 371 (2010).

An ineffective-assistance claim can function as a way to escape rules of waiver and forfeiture and raise issues not presented at trial, and so the Stricklandstandard must be applied with scrupulous care lest "intrusive post-trial inquiry" threaten the integrity of the very adversary process the right to counsel is meant to serve. Even under de novo review, the standard for judging counsel's representation is a

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