United States v. Conley
| Decision Date | 23 October 2020 |
| Docket Number | CASE NO. 5:15-cr-254-1 |
| Parties | UNITED STATES OF AMERICA, PLAINTIFF, v. FRANKLIN CONLEY, DEFENDANT. |
| Court | U.S. District Court — Northern District of Ohio |
MEMORANDUM OPINION AND ORDER
Before the Court is the motion of pro se petitioner Franklin Conley ("Conley") to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. (Doc. No. 153 ["Mot."].) Respondent United States of America (the "government") opposes the motion (Doc. No. 157 ["Opp'n"]), Conley has filed a reply (Doc. No. 159 ["Reply"]), and the government has filed a sur-reply. (Doc. No. 160 ["Sur-reply"].)1 For the reasons that follow, Conley's § 2255 motion is DENIED.
On August 19, 2015, a second superseding indictment was filed charging Conley and a co-defendant, Patrick Griffin ("Griffin"), with one count of conspiracy to commit Hobbs Actextortion, in violation of 18 U.S.C. § 1951(a), five counts of conspiracy to possess with the intent to distribute controlled substances, in violation of 21 U.S.C. § 843(b), one count of possession with the intent to distribute heroin, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B), and one count of transmitting threatening communications, in violation of 18 U.S.C. § 875(b). (Doc. No. 20 (Superseding Indictment ["S.I."]).) The charges related to the efforts of Conley and Griffen to attempt to extort money or a drug connection from former professional football player Christopher "Beanie" Wells. Conley elected to go to trial and Griffin elected to plead guilty.
At Conley's trial, Wells testified that his brother, Joey, called him in January or February 2015, and told him that he had provided Conley with contact information for a drug supplier, but that, when Conley and Griffin met with Joey's contact, the drug dealer stole their money without providing them with any drugs. Joey further indicated that Conley blamed Joey and wanted Joey to repay the lost funds. And when Joey advised that he did not have the money, Conley told Joey that he "better" contact Wells. Wells agreed to permit Joey to give Conley his cell phone number. (Doc. No. 119 (Trial Transcript) at 1337-41.)
Thus began a series of cellular phone calls and text messages between Conley and Wells wherein Conley threatened to hurt Joey or other family members unless Wells came up with approximately $150,000 and an alternative drug source. Wells advised Conley that he did not have the money immediately available, and that he would have to liquidate funds from businesses he owned. Wells explained that he owned several restaurants—Bodega, Grand View Café, and Halley's, all located in Columbus, Ohio—and a nationwide trucking company called Wells Porter Trucking. Wells also began to stall Conley for time before he eventually contacted the National Football League ("NFL") for assistance. (Id. at 1342-50.) The NFL notified theFBI, who conducted the investigation that ultimately led to the arrests of Conley and Griffin.
On June 10, 2016, the jury returned guilty verdicts against Conley for interference with commerce by threats or violence, using a telecommunications device to facilitate a conspiracy to possess and distribute heroin, and transmitting in interstate commerce telephone calls and text messages containing threats to injure and kill. The jury acquitted Conley on the charge of possession with intent to distribute heroin. (Doc. No. 80 (Conley Jury Verdicts).)
On October 31, 2016, the Court sentenced Conley to a within-guidelines sentence of 115 months on the aforementioned charges, to be served consecutive to a 24-month sentence for a supervised release violation, for an aggregate term of 139 months imprisonment. (Doc. No. 196 (Conley Judgment).) Conley appealed his sentence, challenging the sufficiency of the evidence, alleged Brady violations, the effectiveness of trial counsel, the reasonableness of the sentence, and the undersigned's denial of his recusal motion.
On October 24, 2018, the Sixth Circuit affirmed the Court's judgment. (Doc. No. 143 (Order).) Relevant to the present § 2255 motion, the court found Wells' testimony that he would need to liquidate assets from businesses he owned that operated in interstate commerce sufficient to satisfy the nexus to interstate commerce. (Id. at 2020-21.) As to Conley's purported Brady violations, the court rejected Conley's argument that the government erred in failing to disclose public incorporation records for the businesses Wells identified in his trial testimony, finding that the government was under no duty to provide such documentation. (Id. at 2023.) Additionally, the court ruled that the undersigned did not err in denying Conley's pro se recusal motion as the purported basis for bias was his disagreement with the undersigned's rulings. (Id. at 2025.) The court abstained from ruling on Conley's ineffective assistance of counsel argument, noting thatsuch arguments should be reserved for a post-conviction proceeding under § 2255. (Id. at 2023.)
Conley filed the present motion to vacate on January 14, 2020.2 His motion can be grouped into the following categories: (1) trial counsel's failure to investigate; (2) the government's failure to correct alleged perjured testimony; (3) appellate counsel's failure to investigate; (4) incorporation of the ineffective assistance of counsel claims raised on direct appeal; and (5) denial of due process.
A federal prisoner may attack the validity of his sentence by filing a motion to vacate, set aside, or correct the sentence under 28 U.S.C. § 2255 in the district court where he was sentenced. Section 2255 sets forth four grounds upon which a federal prisoner may state a claim for relief: "[1] the sentence was imposed in violation of the Constitution or laws of the United States, or [2] that the court was without jurisdiction to impose such sentence, or [3] that the sentence was in excess of the maximum authorized by law, or [4] [the sentence] is otherwise subject to collateral attack[.]" 28 U.S.C. § 2255(a).
To prevail under § 2255, "a petitioner must demonstrate the existence of an error of constitutional magnitude which had a substantial and injurious effect or influence on the guilty plea or the jury's verdict." Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003) (citing Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993)). "Relief iswarranted only where a petitioner has shown 'a fundamental defect which inherently results in a complete miscarriage of justice.'" Id. (quoting Davis v. United States, 417 U.S. 333, 346, 94 S. Ct. 2298, 41 L. Ed. 2d 109 (1974)).
The movant bears the burden of articulating sufficient facts to state a viable claim for relief under § 2255. McQueen v. United States, 58 F. App'x 73, 76 (6th Cir. 2003) (per curiam). Vague and conclusory claims that are not substantiated by allegations of specific facts with some probability of verity are not enough to warrant relief. A § 2255 motion may be dismissed if it only makes conclusory statements without substantiating allegations of specific facts and fails to state a claim cognizable under § 2255. O'Malley v. United States, 285 F.2d 733, 735 (6th Cir. 1961); see Green v. Wingo, 454 F.2d 52, 53 (6th Cir. 1972).
A criminal defendant may not utilize a § 2255 motion as a substitute for a direct appeal. Regalado v. United States, 334 F.3d 520, 528 (6th Cir. 2003); Capaldi v. Pontesso, 135 F.3d 1122, 1124 (6th Cir. 1998) (). To assert a claim not raised on direct appeal, a petitioner ordinarily must show cause for the default and prejudice. See Bousley v. United States, 523 U.S. 614, 622, 118 S. Ct. 1604, 140 L. Ed. 2d 828 (1998); United States v. Frady, 456 U.S. 152, 167-69, 102 S. Ct. 1584, 71 L. Ed. 2d 816 (1982).
Ineffective assistance of counsel claims are governed by the familiar standard established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Under this standard, a petitioner must demonstrate that counsel's performance was deficient, and that this deficient performance caused prejudice to the petitioner. Strickland, 466 U.S. at 687. To demonstrate that counsel's performance was deficient, a petitioner must show that counsel"made errors so serious that counsel was not functioning as the 'counsel' guaranteed the [petitioner] by the Sixth Amendment." Id. To establish that the deficient performance caused prejudice to the petitioner, he must show that the counsel's errors were so serious that the petitioner was deprived a fair trial. Id. Essentially, a petitioner must establish "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.
"The reviewing court's scrutiny of counsel's performance is highly deferential," and "'counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.'" McQueen v. Scroggy, 99 F.3d 1302, 1311 (6th Cir. 1996) (quoting Strickland, 466 U.S. at 689, 690), overruled on other grounds by In re Abdur' Rahman, 392 F.3d 174 (6th Cir. 2004). A petitioner's disagreements with the strategies or tactics of counsel are not enough to support an ineffective assistance of counsel claim. Strickland at 689; see McQueen, 99 F.3d at 1311 () (quotation marks and citations omitted).
A criminal defendant does not have a constitutional right to demand that his trial counsel raise every possible issue. A failure to raise a claim will not amount to ineffectiveness so long as counsel "exercise[d] reasonable...
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