United States v. Jennings
Decision Date | 25 July 2011 |
Docket Number | Criminal Action No. 2: 06-79-DCR,Civil Action No. 2: 11-7157-DCR |
Parties | UNITED STATES OF AMERICA, Plaintiff/Respondent, v. DAVID JENNINGS, Defendant/Petitioner. |
Court | U.S. District Court — Eastern District of Kentucky |
This matter is pending for consideration of Defendant/Petitioner David Jennings' pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. [Record No. 90] Consistent with local practice, this matter was referred to United States Magistrate Judge J. Gregory Wehrman for consideration pursuant to 28 U.S.C. § 636(b)(1)(B). The Magistrate Judge filed his Report and Recommendation on May 25, 2011. [Record No. 106] Based on his review of the record and applicable law, the magistrate judge recommended that Jennings' motion be denied. As of the initial deadline for filing objections, neither party had filed objections to the Report and Recommendation. As a result, on June 14, 2011, the Court adopted the magistrate judge's recommendation and denied Jennings' motion. [Record No. 107] However, Jennings shortly thereafter filed a motion to reconsider, alleging that he had never been served a copy of Magistrate Judge Wehrman's Report and Recommendation. [Record No. 109] The Court granted Jennings' motion and allowed him additional time to file objections. [Record No. 110] On July 11, 2011, Jennings filed his objections to the Report andRecommendation. [Record No. 114] The Court will now make a de novo determination on those portions of the magistrate judge's recommendations to which Jennings objects. 28 U.S.C. § 636(b)(1)(c). After reviewing the record and making a de novo determination, the Court is in agreement with the magistrate judge's recommendation.
In 2006, Jennings pleaded guilty to two counts: (1) distributing cocaine and (2) using property subject to forfeiture. [Record No. 19] After his first sentence was reversed on appeal, the case was reassigned to the undersigned. [Record Nos. 57, 58] In November 2008, the Court re-sentenced Jennings to a term of imprisonment of 120 months. [Record No. 72] While the sentence was significantly higher than his guideline range of 37-46 months, the Sixth Circuit affirmed. See United States v. Jennings, 407 F. App'x 20 (6th Cir. 2011). On February 3, 2011, Jennings filed the instant Motion to Vacate pursuant to 28 U.S.C. § 2255. [Record No. 90] The United States moved for a more definite statement [Record No. 95], the Court granted the United States' motion [Record No. 96], and, on March 28, 2011, Jennings filed a more complete petition [Record No. 102].
Jennings' objections repeatedly assert the same claim: that Jennings' counsel was ineffective at both sentencing and re-sentencing because he failed to file a sentencing memorandum and adequately argue the 18 U.S.C. § 3553(a) factors. [Record No. 114, p. 5 ( ); p. 5-6 (); p. 8 (); p. 10 ( )]. Additionally, when giving Jennings' objections their most liberal construction, see Hahn v. Star Bank, 190 F.3d 708, 715 (6th Cir. 1999) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)), he appears to also argue that his sentence was substantively and procedurally unreasonable.
As an initial matter, Jennings raised the reasonableness of his sentence on direct appeal and lost. See Jennings, 407 F. App'x at 21-22. The Sixth Circuit concluded that Jennings' sentence was neither procedurally nor substantively unreasonable. Id. The court explained:
Id. (alteration in original). Arguments that were previously raised on direct appeal may not be relitigated in a § 2255 motion absent exceptional circumstances. DuPont v. United States, 76 F.3d 108, 110 (6th Cir. 1996); see also Giraldo v. United States, 54 F.3d 776 (6th Cir. 1995) (). No such circumstances exist in this case. Jennings' arguments concerning the reasonableness of his sentence are procedurally barred.
To establish ineffective assistance of counsel Jennings must demonstrate, as established by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), two essential elements: (1) his attorney's performance was deficient, i.e., below the standard of competence demanded of attorneys in criminal cases; and (2) his attorney's deficient performance prejudiced the defense, i.e. deprived the defendant of a fair trial rendering the outcome of the trial unreliable. Id. at 687-88. Jennings has failed to meet the second element — he has not demonstrated any prejudice as a result of his counsel's performance.
First, failing to file a sentencing memorandum is not, as Jennings argues, a "per se violation of the Sixth Amendment." [Record No. 114, pp. 8-9] Numerous courts, both within this circuit and outside, have held that counsel's performance was not inadequate when he or she failed to file a sentencing memorandum. See, e.g., United States v. Mack, 219 F. App'x 456, 462-64 (6th Cir. 2007) ( ); Reid v. United States, No. 10-583, 2010 U.S. Dist. LEXIS 100253, at *31 (E.D. Mo. Sept. 23, 2010) (); United States v. Brito, 2009 U.S. Dist. LEXIS 108485, at *15-16 (S.D. Tex. Nov. 20, 2009) ( ); United States v. Gomez, 100 F. Supp. 2d 1038, 1045 (D.S.D. 2000) ( ).
Second, Jennings does not identify specific information his counsel should have brought to light that would have altered the Court's conclusion. See Davis v. United States, No. 08-967, 2009 U.S. Dist. LEXIS 54453, at * (W.D. Mich. June 25, 2009) (denying claim for ineffective assistance when petitioner "fail[ed] to identify mitigating factors he contend[ed] should have been presented" at sentencing). "[C]onclusory allegations of ineffective assistance of counsel do not raise a constitutional issue in a federal habeas proceeding." Id. (quoting Miller v. Johnson, 200 F.3d 274, 282 (5th Cir. 2000)). At best, Jennings vaguely mentions two specific factors — the kinds of sentencing available and the need to avoid unwarranted sentencing disparities — that he feels should have been addressed. [Record No. 114, p. 10] The Court specifically addressed the need to prevent sentencing disparities in its explanation of the sentence. [See Record No. 81, p. 14-15 ()] As to the other factor — the types of sentences available — Jennings makes no argument that the Court was unaware of the types of sentences available, nor that any alternative form of sentence would have been appropriate in his case. "[D]istrict courts need not mechanically discuss every § 3553(a) factor at sentencing." United States v. Wimbley, 349 F. App'x 54, 57 (6th Cir. 2009); see also United States v....
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