Love v. United States
| Decision Date | 07 April 2022 |
| Docket Number | 3:14-CR-162,3:20-CV-254 |
| Parties | JODY LOVE, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Eastern District of Tennessee |
Before the Court is Jody Love's (“Petitioner's”) pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. [Doc. 1; Criminal Docket (“Crim.”) Doc. 119].[1] The United States has responded in opposition. [Doc. 11]. Petitioner did not file a reply, and the time for doing so has passed. See Rule 5(d) of the Rules Governing Section 2255 Proceedings for the United States District Courts; see also [Doc. 8]. In his memorandum supporting his § 2255 motion, Petitioner moves for appointment of counsel and for an evidentiary hearing. [Doc. 2, p. 6]. For the reasons below, Petitioner's § 2255 motion [Doc. 1; Crim Doc. 119] will be DENIED, his motion for counsel [Doc. 2] will be DENIED, and his motion for an evidentiary hearing [Id.] will be DENIED as MOOT.
In December 2014, Petitioner and three co-defendants were charged in a one-count indictment for aiding and abetting each other to knowingly be a felon in possession of a firearm. [Crim. Doc. 1]. On March 10, 2015, Petitioner entered into a plea agreement with the Government. [Crim Doc. 37]. Petitioner agreed to plead guilty to the indictment of being a previously convicted felon in possession of firearms, aided and abetted by another, in violation of 18 U.S.C. §§ 922(g)(1) and (2). [See id.] The plea agreement was signed by Petitioner and attorney Andrew S. Roskind.
In his plea agreement, Petitioner acknowledged that on August 21, 2014, co-defendant broke into a Tazewell, Tennessee residence and stole approximately 57 firearms. Petitioner helped co-defendant sell the firearms and knowingly possessed stolen firearms. [Id. at 2]. Petitioner also acknowledged that he had previously been convicted of a felony, specifically four Claiborne County, Tennessee aggravated assault convictions in 1996, 2003, 2005, and 2008. [Id.].
The Court conducted a change of plea hearing on August 20, 2015. Although there is no transcript of that hearing in the record, the minutes from the hearing indicate that Petitioner was arraigned and specifically advised of his rights pursuant to Rule 11, that he waived the reading of the Indictment, that he pled guilty to Count 1 of the Indictment, that Petitioner was referred for a Presentence Investigative Report (“PSR”), and that he was to remain in custody until his sentencing hearing. [Crim. Doc. 44].
On March 24, 2016, Petitioner and the Government entered into an Amended Plea Agreement. [Crim. Doc. 86]. In it, Petitioner agreed that he was an armed career criminal pursuant to the Armed Career Criminal Act (“ACCA”), that he would fully cooperate with the Government, and that a sentence of 180 months would be appropriate in this case. [Id.]; [Crim. Doc. 87]. Shortly after the Amended Plea Agreement was filed, a Revised Presentence Investigation Report (“RPSR”) was issued. [Crim. Doc. 89]. The RPSR calculated a total offense level of 31 and a criminal history category of VI, resulting in a guideline range of 188 to 235 months. [Id. at ¶ 72]. The RPSR noted that there was a statutory mandatory minimum term of imprisonment of 15 years and a statutory maximum term of imprisonment of Life. [Id. at ¶ 71]. The RPSR also noted that Petitioner benefited from the Amended Plea Agreement because the Rule 11(c)(1)(C) recommended sentence of 180 months was below the guidelines range. [Id. at ¶ 73].
The Government filed a notice of no objections to the PSR. [Crim. Doc. 55]. Petitioner, through counsel, also filed a notice of no objections to the PSR. [Crim. Doc. 91]. Petitioner, through counsel, filed a sentencing memorandum, requesting the Court adopt the negotiated sentence of 180 months as set forth in the Amended Plea Agreement. [Id.].
On April 20, 2016, the Court sentenced Petitioner to a total of 180 months' imprisonment and then five years of supervised release. [Crim. Doc. 93]. Petitioner did not file a direct appeal, but on June 9, 2020, he filed this § 2255 motion.
Under § 2255(a), a federal prisoner may move to vacate, set aside, or correct his judgment of conviction and sentence if he claims that the sentence was imposed in violation of the Constitution or laws of the United States, that the court lacked jurisdiction to impose the sentence, or that the sentence is in excess of the maximum authorized by law or is otherwise subject to collateral attack. 28 U.S.C. § 2255(a). As a threshold standard, to obtain post-conviction relief under § 2255, the motion must allege: (1) an error of constitutional magnitude; (2) a sentence imposed outside the federal statutory limits; or (3) an error of fact or law so fundamental as to render the entire criminal proceeding invalid. Mallett v. United States, 334 F.3d 491, 496-97 (6th Cir. 2003); Moss v. United States, 323 F.3d 445, 454 (6th Cir. 2003).
A movant bears the burden of demonstrating an error of constitutional magnitude which had a substantial and injurious effect or influence on the criminal proceedings. See Reed v. Farley, 512 U.S. 339, 353 (1994) (); Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993) (). To obtain collateral relief under § 2255, a movant must clear a significantly higher hurdle than would exist on direct appeal. United States v. Frady, 456 U.S. 152, 166 (1982).
When a defendant files a § 2255 motion, he must set forth facts which entitle him to relief. Green v. Wingo, 454 F.2d 52, 53 (6th Cir. 1972); O'Malley v. United States, 285 F.2d 733, 735 (6th Cir. 1961). A movant must prove that he is entitled to relief by a preponderance of evidence. Pough v. United States, 442 F.3d 959, 964 (6th Cir. 2006). A motion that merely states general conclusions of law, without substantiating the allegations with facts, is without legal merit. Loum v. Underwood, 262 F.2d 866, 867 (6th Cir. 1959); United States v. Johnson, 940 F.Supp. 167, 171 (W.D. Tenn. 1996).
Under Rule 8(a) of the Governing Rules, the Court is to review the answer, any transcripts, and records of prior proceedings and any material submitted under Rule 7 to determine whether an evidentiary hearing is warranted. Rules Governing Section 2255 Proceedings, Rule 8(a). If a petitioner presents a factual dispute, then “the habeas court must hold an evidentiary hearing to determine the truth of the petitioner's claims.” Huff v. United States, 734 F.3d 600, 607 (6th Cir. 2013) (quoting Valentine v. United States, 488 F.3d 325, 333 (6th Cir. 2007)). An evidentiary hearing is not 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 facts.” Valentine, 488 F.3d at 333 (quoting Arrendondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999)). The Court FINDS no need for an evidentiary hearing in the instant case.
As an initial matter, Petitioner seems to raise two claims in this § 2255 motion: 1) ineffective assistance of counsel for failing to “reserve the rights to argue and challenge prior predicate offenses used as enhancements for ACCA” because Petitioner is “actually innocent of the ACCA 924(e) gun enhancement, ” and 2) that Petitioner's prior aggravated assault under Tenn. Code Ann. § 39-13-102(c) did not qualify as a violent felony during his sentencing proceedings. [Doc. 1, pp. 4-5; Crim. Doc. 119]. Petitioner also has two non-dispositive motions pending. [Doc. 2]. The Court will first address the non-dispositive motions, followed by Claim 2, then Claim 1.
Petitioner filed a motion for appointed counsel, requesting the Court appoint him an attorney as “[P]etitioner alleges all the necessary elements of a colorable claim under Johnson” and as “the issue of a valid plea is in question and this presents exceptional circumstances.” [Doc. 2, p. 6] (internal citations and quotations omitted).
It is well established that there is no constitutional right to counsel in post-conviction proceedings. See Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) (); Foster v. United States, 345 F.2d 675, 676 (6th Cir. 1965) ( that the constitutional right to counsel does not extend to collateral proceedings). However, a district court has discretion, under 18 U.S.C. § 3006A(a)(2), to appoint counsel when “the interests of justice so require.” See Childs v. Pellegrin, 822 F.2d 1382, 1384 (6th Cir. 1987). In exercising discretion as to whether to appoint counsel, a court should consider several factors, including the nature of the case, whether the issues are legally or factually complex, and the litigant's ability to present the claims for relief to the court. See Lavado v. Keohane, 992 F.2d 601, 605 (6th Cir. 1993).
Here, Petitioner has adequately presented his claims to the Court without the benefit of counsel, and the Court has found the issues to be without merit as discussed below. None of Petitioner's claims are legally or factually complex to warrant counsel. Petitioner has also failed to offer any material facts that would justify the appointment of counsel. Accordingly, his motion for counsel [Doc. 2] will be DENIED.
Petitioner has also filed a motion for an evidentiary hearing. [Doc. 2]. As stated...
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