Hillis v. USA, No. 4:2017cv00035 - Document 28 (E.D. Tenn. 2020)
Court Description: MEMORANDUM OPINION. Petitioner's 2255 Motion will be DENIED. Because the Motion is ripe for review and the record conclusively establishes the Petitioner is entitled to no relief, Petitioner's Motion for Evidentiary Hearing and Motion for Court Order will be DENIED AS MOOT. A separate judgment will enter. Signed by District Judge Harry S Mattice, Jr on 9/14/2020. (AML) Mailed to Betsy Hillis
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Hillis v. USA Doc. 28 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE AT WINCHESTER BETSY HILLIS, Petitioner, v. UNITED STATES OF AMERICA, Respondent. ) ) ) ) ) ) ) ) ) Nos. 4:17-cv-35, 4:12-cr-5 J udge Mattice Magistrate J udge Lee MEMORAN D U M OPIN ION On J uly 24, 20 17, federal inm ate Betsy Hillis filed a m otion to vacate, set aside, or correct her sentence pursuant to 28 U.S.C. § 2255. [Doc. 1; Crim Doc. 556]. Petitioner argues she was deprived of her right to effective assistance of counsel due to num erous purported failures of her attorneys, including failure to obtain eviden ce to support an alibi defense, failure to negotiate an acceptable plea, failure to challenge sentencing guidelines, and various failures on appeal. As ordered, the United States filed a response to Hillis’s Motion [Doc. 10 ], to which she replied [Doc. 19]. She has also filed a Motion for Evidentiary Hearing [Doc. 21] and a Motion for Court Order [Doc. 23]. Having considered the pleadings and the record, along with the relevant law, the Court finds there is no need for an evidentiary hearing 1 and Petitioner’s § 2255 m otion [Doc. 1; Crim Doc. 556] will be D EN IED . Because the Motion is ripe for review and the record con clusively establishes 1 An evidentiary hearing is required on a § 2255 m otion unless the m otion, files, and record conclusively show that the prison er is not entitled to relief. See 28 U.S.C. § 2255(b). It is the prisoner’s ultim ate burden, however, to sustain his claim s by a preponderance of the evidence. See Pough v. United States, 442 F.3d 959, 964 (6th Cir. 20 0 6). Accordingly, where “the record conclusively shows that the petition er is entitled to no relief,” a hearing is not required. Arredondo v . United States, 178 F.3d 778 , 78 2 (6th Cir. 1999) (citation om itted). Dockets.Justia.com that Petitioner is entitled to no relief, Petitioner’s Motion for Evidentiary Hearing [Doc. 21] and Motion for Court Order [Doc. 23] will be D EN IED AS MOOT. I. BACKGROU N D FACTS AN D PROCED U RAL H ISTORY On Novem ber 27, 20 12, a grand jury handed down a four-count Second Superseding Indictm ent, charging Petitioner Betsy Hillis with (i) conspiracy to m anufacture and distribute 50 gram s or m ore of m etham phetam in e and 50 0 gram s or m ore of a substance contain ing m etham phetam ine; (ii) conspiracy to possess and distribute pseudoephedrin e, knowing it would be used to m anufacture m etham phetam ine; (iii) obstruction of an official proceeding; and (iv) m aking false statem ents. [Crim . Doc. 350 ]. 2 The charged conspiracies took place between J anuary 20 0 8 and February 20 12. [Id.]. On Defendant’s m otion, the Court severed the drug conspiracy charges of Counts One and Two from the false statem ent and obstruction offenses of Counts Three and Four. [Crim . Doc. 393 at 2]. At trial, the Government presented evidence that Petitioner purchased Sudafed and traded it for m etham phetam ine. [See e.g. Crim . Doc. 480 at 175-178, 20 7]. The Governm ent’s witnesses testified they cooked m etham phetam ine for their personal use, shared with friends or fam ily, and traded it for supplies to m ake m etham phetam ine. [Id. at 59-60 , 97-98, 112--13]. The Governm ent introduced pharm acy logs of pseudoephedrin e purchases associated with Hillis’s driver’s license and records of Hillis’s debit card purchases. Som e of Hillis’s debit card purchases were m ade in close geographical and tem poral proxim ity to the purchase of pseudoephedrin e by her codefendants. [Crim . Doc. 2 The Governm ent incorrectly indicates Count Two of the Second Superseding Indictm ent was conspiracy to possess equipm ent for the m anufacture of m etham phetam ine. [Doc. 10 at 2]. 2 481 at 48 -56]. The pseudoephedrine logs were adm itted over Defendant’s m otion in lim ine [Crim . Doc. 419] and continuing objection. [Crim . Doc. 426; Crim . Doc. 479 at 33]. At the close of the Governm ent’s case in chief, defense counsel m oved for a judgm ent of acquittal under Federal Rule of Civil Procedure 29 on three grounds. [Crim . Doc. 48 0 at 247-265]. First, he argued the Governm ent had failed to prove that the substances involved in the case were the substances charged in the indictm ent—i.e., that there was “actual” m etham phetam ine, a m ixture containing m etham phetam ine, and pseudoephedrin e involved in the conspiracy. [Id.]. Counsel noted the Governm ent did not call a laboratory expert to prove that the product of the conspiracy was m etham phetam ine and not som e other powder substance. Second, Hillis’s attorney argued there was a variance between what was charged in the indictm ent—conspiracy to m anufacture and distribute—and the proof the Governm ent presented of Hillis’s possession and personal use. [Id.]. Finally, he argued the Governm ent had failed to prove the existence of a conspiracy whose goal was distribution as opposed to m ere possession. [Id.]. Counsel argued that because the indictm ent charged Hillis with conspiracy to both distribute and m anufacture m etham phetam ine, the charge had to be dism issed because there was no evidence from which a reasonable juror could find distribution. [Id.]. The Governm ent argued this deficiency was not fatal to the indictm ent and could be cured by rem oving reference to distribution from the jury instructions and verdict. The Court heard argum ent on all of these issues but did not grant the m otion at that tim e. [Id. at 264]. In its case in chief, the Governm ent presented evidence that 10 or so purchases of pseudoephedrin e were m ade with Hillis’s bank card in a 28-m onth period. [See Crim . Doc. 465 at 17]. On direct exam ination, Hillis testified she had m ade those purchases for 3 herself due to life-long sinus and allergy issues. [See id. at 18]. The Governm ent also presented pharm acy logs of purchases associated with Hillis’s driver’s licen se num ber. Petitioner testified that the purchases without corresponding bank records were not hers, because she always used her debit card to buy things. [Id.]. She also testified that in October 20 0 0 she thought she lost her driver’s license, so she got a new one with the sam e address, an d then found her prior license a week or so later. [Crim . Doc. 465 at 20 -21]. She renewed her licen se in March 20 0 3 with a new address but kept one of her old licenses. [Crim . Doc. 481 at 28 -29]. She testified she would som etim es give a license to her ex-boyfriend an d co-defendant J erem y Rigsby to hold onto when they went out. [Id.]. She further testified Rigsby gave the license to another co-defendant who used it to purchase Sudafed for the purpose of m aking m etham phetam ine. [Id. at 31]. At the close of the defense case, defen se counsel renewed his Rule 29 m otion for judgm ent of acquittal. [Crim . Doc. 481 at 77-90 ]. The Court granted the Motion in part and den ied in part. [Crim . Doc. 50 7 at 5]. The Court found that lab-tested m etham phetam ine was not required to sustain a conviction for the m anufacture of m etham phetam ine, rejecting the first ground for counsel’s m otion. [Id.]. Viewed in the light m ost favorable to the Governm ent, the Court held that a reasonable juror could conclude Hillis voluntarily joined a conspiracy to m anufacture m etham phetam ine, but that no reasonable juror could find that Hillis conspired to distribute m etham phetam ine. [Id. at 5-6]. The Court based this ruling on the absence of proof that Hillis had any knowledge that the m etham phetam ine was being distributed to anyone other than herself. [Id. at 6]. The Court found this ruling was not fatal to Count One of the Second Superseding Indictm ent, however. Instead, reference to distribution was rem oved from the language of the indictm ent and the following charges were sent to the jury: conspiracy 4 to m anufacture m etham phetam in e, conspiracy to possess and distribute a precursor chem ical to m etham phetam ine, and the lesser-included offense of Count Two, conspiracy to possess a precursor chem ical to m etham phetam ine. [Crim . Doc. 433]. At the charge conference, Hillis’s attorney m ade m ultiple objections to the jury instructions. [See Crim . Doc. 50 7]. On the fourth day of trial, a jury found Petitioner guilty of 1) conspiracy to m anufacture 50 gram s or m ore of actual m etham phetam ine or five hundred gram s or m ore of a m ixture containing m etham phetam ine and 2) conspiracy to possess an d distribute a precursor chem ical to m etham phetam ine. [Crim . Doc. 433]. The Court’s Probation Office prepared a Presenten ce Investigation Report reflecting a m inim um term of im prisonm ent of ten years pursuant to 21 U.S.C. § 841(a)(1) and (b)(1)(A) and a guideline sentencing range of 151 m onths to 188 m onths. [Crim . Doc. 464 at ¶¶ 55-56]. Hillis objected to m ultiple factual and legal aspects of the PSR, specifically challenging the two-level enhancem ent for obstruction of justice. [Crim . Doc. 454]. Defendant also filed a Motion for Variance of Sentence [Crim . Doc. 455], arguing, inter alia, that she was a low-level, non-violent offender and that the Governm ent had ignored Departm ent of J ustice policy by charging her with a large drug quantity in order to trigger a m andatory m inim um senten ce that was designed for high-level offenders. Prior to sentencing, the United States Sen tencing Guidelines were am en ded, reducing Hillis’s guideline im prisonm ent range to 121 to 151 m onths. [Crim . Doc. 482 at 32-33]. At sentencing, the Court sustained an objection to the PSR based on the am ended guidelines and also granted the m otion for a downward variance, reducing the term of 5 im prisonm ent by one m onth. [Id.]. 3 The Court im posed the m andatory m inim um sentence of 120 m onths’ im prisonm ent. [Id. at 51-52; Crim . Doc. 472]. Counts Three and Four were dism issed on the Governm ent’s motion. [Crim . Doc. 472; Crim . Doc. 482 at 54]. Hillis appealed, challenging the Governm ent’s adm ission of pharm acy records that identified her as the purchaser of pseudoephedrine and arguing the eviden ce against her was insufficient to support a conviction. [See Crim . Doc. 537 at 1]. The United States Court of Appeals for the Sixth Circuit affirm ed her conviction, United States v. Hillis, 656 F. App’x 222 (6th Cir. 20 16), and the Suprem e Court of the United States denied Hillis’s petition for a writ of certiorari on March 20 , 20 17, Hillis v. United States, 137 S. Ct. 1359 (20 17). Hillis tim ely filed her instant Motion to Vacate on J uly 24, 20 17 [Crim . Doc. 556]. The Governm ent responded, as ordered by the Court. [Doc. 10 ]. Petitioner then filed a reply brief and affidavit, a m otion for evidentiary hearing [Doc. 21], and a Motion for Court Order [Doc. 23], asking the Court to require the Governm ent or the Clerk of Court to provide Petitioner with record excerpts and case law cited by the Governm ent in its reply. II. STAN D ARD S OF REVIEW After a defendant has been convicted and exhausted his appeal rights, a court m ay presum e that “he stands fairly and finally convicted.” United States v. Frady , 456 U.S. 152, 164 (1982). A court m ay grant relief under 28 U.S.C. § 2255, but the statute “does not encom pass all claim ed errors in conviction and sentencing.” United States v. Addonizio, 3 The Governm ent’s brief states Defendant objected to the en hancem ent for obstruction of justice and the Court sustained the objection, resulting in a reduction in her guidelin e range from 151-18 8 m onths to 121151 m onths. This is incorrect. The Court overruled Defendant’s objection, findin g a two-level en hancem ent for obstruction appropriate. [Doc. 48 2 at 23, 31-32]. The reduction in Defendant’s advisory guidelin e ran ge was due to an am endm ent to the United States Sentencing Guidelines. [Id. at 32-33]. 6 442 U.S. 178, 185 (1979). Rather, collateral attack lim its a m ovant’s allegations to those of constitutional or jurisdictional m agnitude, or those containing factual or legal errors “so fundam ental as to render the entire proceeding invalid.” Short v. United States, 471 F.3d 68 6, 691 (6th Cir. 20 0 6) (citation om itted); see also 28 U.S.C. § 2255(a). In a § 2255 action, “[a]n evidentiary hearing ‘is required unless the record conclusively shows that the petitioner is entitled to no relief.’” Martin v. United States, 8 8 9 F.3d 827, 832 (6th Cir. 20 18) (quoting Cam pbell v. United States, 68 6 F.3d 353, 357 (6th Cir. 20 12)). Otherwise, “a district court m ay only forego a hearing where ‘the petitioner’s allegations cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statem ents of fact.’” Id. (quoting MacLloy d v. United States, 684 F. App’x 555, 559 (6th Cir. 20 17)). To establish that she has received ineffective assistance of counsel, a convicted defendant m ust satisfy the two-pronged test set forth by the Suprem e Court of the United States in Strickland v. W ashington, 466 U.S. 668 (1984). Strickland holds that a petitioner cannot establish his counsel was ineffective unless he dem onstrates that (1) counsel’s perform ance was deficient, such that counsel did not render reasonably effective assistan ce as m easured by prevailing professional norm s; and (2) he was prejudiced by the deficiency, i.e., there is a reasonable probability that but for counsel’s alleged acts or om issions, the results of the proceedings would have been differen t. Id. at 687-88, 694; Huff v. United States, 734 F.3d 60 0 , 60 6 (6th Cir. 20 13) (applying Strickland test to § 2255 claim s). The failure to satisfy either prong of Strickland requires dism issal of the claim and relieves the reviewing court of a duty to consider the other prong. N ichols v. United States, 563 F.3d 240 , 249 (6th Cir. 20 0 9); see also Strickland, 466 U.S. at 697. Finally, Strickland “requires the defen dant to identify specific acts or om issions by 7 counsel that were ‘outside the wide range of professionally com petent assistance.’” Carter v. Bogan, 90 0 F.3d 754 (6th Cir. 20 18) (quoting Strickland, 466 U.S. at 690 ). In the context of an ineffective assistance of counsel claim , an evidentiary hearing is required unless (i) the record conclusively shows the petitioner is not entitled to relief on the grounds that her counsel rendered a deficient perform ance, and (ii) the record conclusively shows that any deficient perform ance could not have prejudiced petitioner’s defense. MacLloy d v. United States, 684 F. App’x 555, 560 , 562 (6th Cir. 20 17). III. AN ALYSIS A. Mo tio n to Vacate Petitioner says she was denied effective assistance of counsel because her lawyer (1) failed to prove she was at work when she was purportedly buyin g pseudoephedrine, (2) failed to negotiate an acceptable plea agreem ent, (3) failed to challenge the presentence report and m inim ize Petitioner’s sentencing exposure, and (4) failed to present the strongest argum ents in her favor on appeal. The Governm ent opposes the m otion and argues an evidentiary hearing is not necessary. The record before the Court conclusively establishes that Petitioner was not denied effective assistance of counsel on the grounds raised and the Motion to Vacate will be denied. 1. Ground One—Failure to Prove Alibi Defense For her first ground, Petitioner claim s trial counsel was in effective because he failed to obtain eviden ce to support Petitioner’s alibi defen se and present it at trial. [Doc. 1 at 4]. Petitioner says she was actually at work at tim es when the Governm ent claim s she was buying pseudoephedrine. [Doc. 17 at 1]. She claim s, as she did at trial, that her driver’s license was used without her consent to purchase pseudoephedrin e. [Doc. 5 at 8]. Her alibi could have been established, she argues, because she was in the presen ce of 8 coworkers, using password-protected software, and perform ing work that could only have been don e by som eone with unique experience and knowledge of her duties. [Id.]. “[I]t would be m uch sim pler,” she argues, for som eone to m ake a fake driver’s licen se or steal her “extra driver’s license.” [Id. at 8]. But this sim pler explanation was not available to the jury, because according to Hillis, her attorney “failed to in spire ‘reasonable doubt’ by suggesting som eone m ade a ‘fake license’ and by failing to prove defendant was at work….” [Id. at 19]. She says the subpoenas he wrote were too general to elicit the inform ation she needed to prove her alibi, and that she was told of the lack of detailed records only a week before trial. [Doc. 17 at 2]. 4 She also faults her counsel for not calling any witnesses to testify, though she does not say who he could have called. [Doc. 5 at 19]. The Governm ent subm its the affidavit of her trial counsel in support of its response. [Doc. 10 -1]. Counsel avers that he sent subpoenas to five form er em ployers of Petitioner in an attem pt to obtain records that would contradict the pseudoephedrin e pharm acy logs offered by the Governm ent as proof that Hillis purchased pseudoephedrin e. [Id.]. One em ployer had no records to produce, one had only wage inform ation, and another only had records prior to the start date of the conspiracy. [Doc. 10 -1 at ¶ 5]. None of the records contradicted the Governm ent’s proof, so counsel relied on, inter alia, Hillis’s testim ony and the absence of other evidence placing her at the pharm acies in question. [Id.]. The record dem onstrates Hillis’s counsel did in fact investigate Hillis’s claim that she was at work during som e of the pseudoephedrine purchases associated with her license, but was unable to obtain the records necessary to support this claim . Assum ing 4 She also claim s that her attorney’s assistant failed to give him m essages from Hillis and was subsequently fired. [Doc. 17 at 1-2]. It is n ot clear what im pact this issue supposedly had on H illis’s case. 9 arguendo that he could have drafted the subpoenas with greater detail or specificity, his failure to do so does not fall outside the wide range of professionally com petent assistan ce. Petitioner was entitled to reasonably effective assistance of counsel, not perfect representation. Nor can Petitioner establish prejudice. Petitioner’s fixation on her em ploym ent alibi ignores the reality of the rem aining evidence again st her. She adm itted to purchasing pseudoephedrin e with her bank card and m ultiple people testified she purchased pseudoephedrin e and traded it for m etham phetam in e. The Governm ent presented eviden ce that Petitioner m ade purchases with her bank card at the sam e tim e and in the sam e location that her codefendants bought pseudoephedrine for the m anufacture of m etham phetam ine. [Crim . Doc. 481 at 48 -56]. Moreover, Hillis does not say when she was at work or which purchases could have been disputed, if any. She does not say, for exam ple, what days and hours she norm ally worked or for which em ployers. With respect to som e of the subpoenas, it appears the inform ation Hillis seeks does not exist. Hillis therefore cannot show a reasonable probability that the results of her trial would have been different if her counsel had pursued her em ploym ent inform ation m ore quickly or m ore aggressively. Petitioner also claim s trial counsel failed to seek surveillance video of the dates in question, failed to subpoena any of the clerks who supposedly sold Sudafed to Hillis, failed to engage the services of a professional hand-writing analyst to prove the pharm acy logs, and failed to m atch transaction detail records to Hillis’ bank records. [Doc. 17 at ¶ 11]. But counsel strategically highlighted each of these deficiencies in the Governm ent’s proof during trial and avers this decision was intentional. [Doc. 10 -1 at ¶ 5]. He noted the Governm ent’s lack of surveillance video, lack of handwriting analysis, and lack of witness 10 identification of Hillis as a pseudoephedrin e purchaser in his closin g argum ent. [Doc. 50 7 at 58 ]. He also objected to the adm ission of the pseudoephedrine pharm acy logs an d objected to the m anner in which the Governm ent cross-exam ined Hillis regarding the transactions. [Doc. 419; Doc. 481 at 48]. Indeed, the Governm ent was m ade to identify for the jury which transactions were purportedly m ade with Hillis’s debit card versus which were associated with her driver’s license and paid for by other m eans. [Doc. 481 at 48-50 , 56-57]. Finally, Hillis says trial counsel should have argued to the jury that som eon e created a fake driver’s license with her nam e and license num ber on it and used it buy pseudoephedrin e. [Doc. 5 at 8]. It is not difficult to im agine that such a wildly speculative argum ent m ight have called into question Hillis’s credibility and ultim ately disadvantaged her. She further argues her attorney should have m ade a “jurisdictional argum ent,” but does not explain what that m eans. Petitioner has not shown that her counsel was ineffective with regard to investigating and presenting an alibi defen se. Even if she could show that som e of the purchases m ade with her driver’s license were not hers, she adm itted to others, and the Governm ent presented testim onial eviden ce of her role in the conspiracy. She cannot show a reasonable probability that the result of her trial would have been different had her counsel established she was at her place of em ploym ent at som e unspecified tim e. 2. Ground Two—Failure to Negotiate Acceptable Plea Agreem ent Petitioner next claim s her counsel was ineffective because he failed to pursue an Alford plea, failed to explain and negotiate for application of the safety valve provision, and failed to explain how Hillis’s conduct did or did not satisfy the elem ents of the charged offenses. [Doc. 1 at 5]. Hillis does not say how she was prejudiced by these deficiencies, 11 but presum ably she m eans to suggest that but for counsel’s ineffectiveness, she would have been offered and accepted a favorable plea. Hillis initially claim ed “at no tim e” was she “offered any type of plea.” [Doc. 17 at ¶ 3]. She did not ren ew this contention following the Governm ent’s subm ission of eviden ce that a plea offer was indeed m ade and would have in cluded a two-level safety valve reduction. A defendant has no constitutional right to a plea bargain, m uch less a specific type of plea bargain. See W eatherford v. Bursey , 429 U.S. 545, 561 (1977) (“[T]here is no constitutional right to a plea bargain.”). However, if a favorable offer is m ade, the defendant’s attorney m ust com m unicate that offer, “review the charges with the defendant, including a discussion of the elem ents necessary for the conviction, the eviden ce that m ay support those elem ents, and the sentencin g exposure that the defendant faces.” MacLloy d, 684 F. App'x at 560 (quoting Lafler v. Cooper, 566 U.S. 156 (20 12)). “The failure of defense counsel to provide professional guidance to a defendant regarding his senten cing exposure prior to a plea m ay constitute deficient assistance.” Id. That is not what Hillis contends happened here. Rather, she says her attorney failed to negotiate an “acceptable plea agreem ent,” telling her “she m ust either plead guilty (and adm it to crim inal conduct) or go to trial.” [Doc. 5-1 at ¶¶ 4-5]. The record reflects those were in fact her options. She says she asked counsel why an Alford plea, “best interest plea,” or “no contest plea” was not available to her and he told her either that such a plea was not possible or that only the prosecutor could m ake that offer. [Id. at 11; Doc. 17 at ¶ 13]. 5 She believes, however, that she was a good candidate for an “Alford 5 This conversation appears to have occurred after she was sentenced, as she indicates she was incarcerated when she learned of an Alford plea. [Doc. 17 at ¶ 13]. She was not rem anded to custody until the conclusion of her sentencing hearing. [Doc. 430 ]. 12 plea” due to her lack of crim inal history and the characteristics of her co-defendants. The record does not establish whether there were negotiations for such a plea. 6 [Id. at 11]. An Alford plea is sim ply “a guilty plea entered by a defen dant who either 1) m aintains that he is innocent; or 2) without m aintaining his innocence, ‘is unwilling or unable to adm it’ that he com m itted ‘acts constituting the crim e.’” United States v. Tunning, 69 F.3d 10 7, 110 (6th Cir. 1995) (quoting N orth Carolina v. Alford, 40 0 U.S. 25 (1970 )). “An Alford-type guilty plea is a guilty plea in all m aterial respects.” Id. at 11. Her attorney’s statem ent that Petitioner would have to plead guilty or go to trial would therefore have been accurate even had she been offered an Alford-type plea agreem ent. More obviously, defense counsel could not com pel the Governm ent to offer any specific plea agreem ent and Hillis was apparently unwilling to plead guilty. There is, perhaps, som e factual dispute as to whether Petitioner was offered a plea, but to the extent there is a genuine dispute, it is not m aterial to the resolution of the m otion to vacate. In her initial pleadings, Hillis conten ds she was not offered any plea at all. [Doc. 17 at ¶ 3]. In response, the Governm ent presented the affidavits of her attorneys, Brian O’ Shaughnessy and Peter Strianse. 7 Both aver they discussed the possibility of a plea agreem ent with her. O’Shaughnessy says he talked with Hillis about whether a plea agreem ent was appropriate in her case and that it was his “standard practice’ to discuss the safety valve provision for defendants with no crim inal history. [Doc. 10 -2 at ¶¶ 5, 7]. Strianse avers that on April 18, 20 13, an AUSA sent O’Shaughnessy an em ail outlining the 6 Petitioner cites statem ents m ade by the Court at senten cing regarding whether there had been discussions between counsel. [Doc. 5 at 12]. The Court’s lack of kn owledge regarding plea negotiations does not im ply that negotiations should have occurred. 7 The record reflects Hillis was represented by Brian O’Shaughnessy beginn ing Decem ber 3, 20 12 [Doc. 261], and that Peter Strianse was substituted as counsel on J une 10 , 20 13 [Doc. 368 ]. 13 term s an d conditions of a proposed plea agreem ent, including a safety valve reduction, indicating Ms. Hillis would face 30 m onths or less of jail tim e. [Doc. 10 -1 at 6]. This em ail does not appear in the record and Mr. O’Shaughnessy does not m ake a sim ilar declaration. Strianse’s affidavit also includes an April 8 , 20 14 em ail from the AUSA setting out term s an d conditions of a plea agreem ent proposal. [Id. at 10 -1]. Per the proposal, the Governm ent agreed to recom m en d the application of the safety valve exception, provided Hillis m ade a full adm ission of her involvem ent in the offense. [Id.]. The em ail chain includes a draft counterproposal by Strianse that Hillis apparently refused to authorize him to sen d. [Id. at 6, 10 ]. The em ail proposal contem plated an 18 to 24-m onth sentence. [Id. at 10 ]. Strianse says he advised Hillis to settle her case and reach a plea agreem ent. [Id. at 6]. In her reply, Hillis does not repeat her contention that she was n ever offered a plea, nor does she dispute the Governm ent’s account of events. Instead, she now says “the superceding [sic] indictm ent cam e on the heels of Betsy Hillis refusing to plead guilty; two (2) new charges were prom ised as retaliation if Ms. Hillis failed to plead guilty.” [Doc. 19 at ¶ 6]. 8 It is difficult to square this account with her in itial claim that she was never offered any kind of plea. Consistent with Hillis’s later version of events, the second superseding indictm en t adding new charges was returned on April 23, 20 13, just five days after Strianse avers the Governm ent m ade a plea proposal. Regardless of her factual allegations, the stated basis for Hillis’s m otion is not that she was never offered a plea. Instead, she argues she was denied effective assistan ce of 8 Likewise, in her Motion for Evidentiary Hearin g [Doc. 21], Hillis identifies the num erous factual disputes she believes m ust be resolved by the Court. Whether she was offered a plea agreem ent is not am ong them . [Id.]. 14 counsel because her attorneys failed to procure an “acceptable” plea and m ay not have sought the specific type of plea Hillis desired, presum ably one that did not require her to plead guilty. There is no dispute that such a plea was never offered to Petitioner. The inability to procure a plea offer that a client wants to accept is not constitutionally ineffective assistance of counsel. 9 Hillis also claim s counsel did not explain the elem ents of the offenses with which she was charged. In the context of evaluating a plea agreem ent, such an oversight could perhaps rise to the level of ineffective assistance. See MacLloy d, 684 F. App'x at 560 . But she m akes this allegation in the abstract, unconnected to the assessm ent of a plea agreem ent. Sim ilarly, she does not explain how this prejudiced her or what she would have don e differently if she had m ore inform ation. To the extent Hillis contends her attorney m ay not have engaged in plea negotiations, she claim s only a lack of knowledge as to whether those discussions occurred. [Doc. 5 at 11]. The record now reflects that counsel attem pted to negotiate a plea agreem ent for Hillis. 10 3. Ground Three—Failure to Dispute Legal and Factual Errors in PSR For her third basis for relief, Hillis argues her attorney was ineffective at sentencing because he failed to dispute inaccurate inform ation in the PSR, failed to challenge the inaccurate application of the facts to sentencing laws, failed to offer m itigation, failed to present an alternative sentencing option despite the existence of better options, failed to perfect the record for appellate review, and failed to challenge her sentence as in excess of the statutory m axim um . [Doc. 1 at 7]. She claim s counsel failed to tell her “that anything 9 Im portantly, Hillis does n ot argue or allege that her attorneys received a form al plea offer that was not com m unicated to her. 10 The proposal included a two-level safety valve reduction, as did the Govern m ent’s prior proposal. [Doc. 10 -1 at 10 ]. 15 in the PSR (which was not disputed) would becom e a stipulated fact for sentencing.” [Doc. 17 at 2]. Hillis says her lawyer did not explain the senten cing to Hillis, including how the Court arrived at the sentencing guideline range. She says counsel “did not present any ideas on how he would m itigate sentencing” and failed to follow Federal Rule of Crim inal Procedure 32 in som e unspecified way. [Doc. 17 at ¶ 14]. Hillis’s sentence was not driven by the Presentence Investigation Report or the United States Sentencing Guidelines, but by the m andatory m inim um sentence provided by statute for the offenses she was convicted of com m itting. She does not identify even one factual error in the PSR or explain why she believes her guidelin e senten ce range was im properly calculated. Contrary to Hillis’s contention, her lawyer filed and extensively argued objections to the PSR, and m oved for a downward variance. [Crim . Doc. 454; Crim Doc. 455; Crim . Doc. 482]. The PSR was revised in response to these objections, at least one objection was sustained by the Court, and a downward variance was granted at sentencing. Petitioner insists there were “better options” and that her counsel should have m itigated her senten ce but does not explain what m ore he could have done. Petitioner argues there are “checks and balances to aid a defendant when the jury has been m isled by a clever presentation… m aking the defendant appear guilty.” [Doc. 5 at 17]. She believes that “[m ]erely giving som eone som ething with which they create a crim e does not m ean you approve of or are even aware the crim e will occur” and that “[n]owhere does the record reflect that the defendant m anufactured or distributed any drugs.” [Doc. 5 at 17]. Though couched as ineffectiveness of counsel, this argum ent is no m ore than Petitioner’s continued insisten ce that her actions did not constitute a crim e. Finally, Petitioner observes that at sentencing, the Court asked whether there were any further objections to the PSR or anything else that needed to go in the record. 16 [Doc. 13]. Petitioner m isinterprets these routine questions as suggesting her counsel m issed an opportunity to advocate for her. 4. Ground Four—Representation on Appeal For her fourth ground, Petitioner challenges her representation on appeal, but fails to identify any specific errors. She claim s her lawyer abandoned her strongest argum ent on appeal, failed to correct trial errors, and failed to support his argum ents with strong citation to authority on the request of a judge during oral argum ent. [Doc. 1 at 8]. Hillis does not identify the argum ents or citations that should have been raised or errors that should have been corrected. Strickland “requires the defen dant to identify specific acts or om issions by counsel that were ‘outside the wide range of professionally com petent assistan ce.’” Carter v. Bogan, 90 0 F.3d 754 (6th Cir. 20 18 ) (quoting Strickland, 466 U.S. at 690 ). Hillis has not done this, leaving the Court with nothing further to review with respect to her appellate representation. 5. Miscellaneous Issues Hillis raises dozens of other challenges to the com petence of her counsel with little argum ent or explanation. She claim s, inter alia, that her attorney(s) failed to challenge the indictm ent, failed to challenge a “defective” grand jury process, failed to challenge subject m atter jurisdiction, failed to dem and “guideline codes” from the probation office, failed to propose jury instructions, failed to ask for first offender treatm ent, and failed to challenge the Governm ent’s use of inform ation provided by Hillis. She does not explain any of this. She does not say, for exam ple, what was wrong with the grand jury process, why subject m atter jurisdiction was lacking, or what inform ation should have been challenged. 17 Again, the Strickland test requires a greater degree of specificity than this to overcom e the “strong presum ption” that the challenged conduct was profession ally reasonable. Petitioner has not m et this standard, even in light of her pro se status. She also says her counsel failed to “persist” in his argum ents, failed to “strap down his argum ent with proper citation to authority,” failed to “flesh out his argum ent” and so forth. [Doc. 20 at 4-5]. Such errors in tone and presentation are insufficient to establish ineffective assistance, even assum ing they were errors at all. Sim ilarly, Petitioner m akes a num ber of argum ents that are factually incorrect or legally baseless. She claim s her trial counsel failed to argue that no m etham phetam ine was recovered in the case and non e was lab-tested. But her lawyer m ade and argued a m otion for acquittal on this basis and em phasized the Governm en t’s lack of evidence in his closing argum ent. She says he failed “to raise safety valve,” but the record reflects that his proposed settlem ent offer to the Governm ent would have included the safety valve provision. She says counsel failed to object to the Court’s striking the conspiracy to distribute from the jury instructions and the verdict form , resulting in a constructive am endm ent to the indictm ent. 11 Yet he m ade this precise argum ent at the close of the Governm ent’s proof. She argues counsel “never disputed the guideline as calculated by the Office of Probation nor did he offer an alternative calculation to the Court.” [Doc. 17 at 3]. But her attorney m ade m ultiple objections to the PSR and the Probation Office revised the PSR in response. At sentencing, he objected to the two-level enhancem ent for obstruction of 11 Petitioner suggests she was charged with possession with intent to distribute, believing sim ple possession could thus have been a lesser-included offense sent to the jury. But the indictm ent does not charge possession or conspiracy to possess m etham phetam ine, it charges conspiracy to distribute and m anufacture m etham phetam ine. 18 justice based on Hillis’s statem ents to law enforcem ent and trial testim ony. After hearing argum ent and testim ony, the Court found that Hillis had lied about purchasing pseudoephedrine for the purpose of providing it to som eone to m anufacture m etham phetam ine. [Doc. 482 at 31-32]. The Court therefore found the enhancem ent for obstruction appropriate. [Id.]. For related reasons, Petitioner cannot show that her counsel was ineffective for failing to dem onstrate her entitlem ent to the safety valve provision at sentencing. 12 “In general, if a defendant is convicted under 21 U.S.C. § 841(b)(1)(A), he faces a statutory m andatory m inim um sentence of 120 m onths.” United States v. Barron, 940 F.3d 90 3, 913 (6th Cir. 20 19). To qualify for a safety valve reduction, the Defendant m ust m eet five criteria, including: “not later than the tim e of the sentencing hearin g, the defendant has truthfully provided to the Governm ent all inform ation and evidence the defen dant has concern ing the offense or offenses that were part of the sam e course of con duct or of a com m on schem e or plan….” U.S.S.G. § 5C1.2(a). This requires “an affirm ative act by the defendant truthfully disclosing all inform ation he possesses that concerns his offense or related offenses.” Barron, 940 F.3d at 917 (citing United States v. Adu, 82 F.3d 119 (6th 1996)). “These requirem ents reflect the fact that the safety valve was intended to benefit only those defendants who truly cooperate.” Id. (citation and internal punctuation om itted). The Court’s finding that Petitioner was untruthful at trial resolves in the negative the question of whether she “truthfully provided to the Governm ent all inform ation and evidence” she had “concern ing the offense” by the tim e of sentencing. 12 She also says her lawyer failed to ask the Court for “first offender” treatm ent un der 28 U.S.C. § 994(j), detailing the duties of the United States Sentencin g Com m ission, or 18 U.S.C. § 360 7, relating to “Special probation and expungem ent procedures for drug possessors.” These provision s do not entitle her to different sentencing treatm ent. 19 See U.S.S.G. § 5C1.2(a). Petitioner cannot show a reasonable probability that her sentence would have been different had her lawyer raised the safety valve provision at senten cing. B. Mis ce llan e o u s Mo tio n s Where “the record conclusively shows that the petitioner is entitled to no relief,” an evidentiary hearing is not required on a § 2255 m otion. Arredondo v. United States, 178 F.3d 778 , 782 (6th Cir. 1999) (citation om itted). Petitioner’s Motion for Evidentiary Hearing [Doc. 21] does not identify factual disputes that preclude the Court from resolving her Motion without an evidentiary hearing. The record conclusively establishes that Petitioner was not denied effective assistance of counsel on the grounds stated, and the Motion for Evidentiary Hearing [Doc. 21] will be denied. Petitioner also urges the Court to require the Governm ent or the Clerk’s Office to provide her with transcript excerpts and the legal authority cited in its brief. [Doc. 23]. Petitioner conten ds she is at a disadvantage in replying to the Governm ent’s brief, but she has already filed a reply. Petitioner was entitled to file one reply pursuant to the Court’s Order [Doc. 2] and Local Rule 7.1, which provides only for an initial m otion and brief, a response, and a reply by the m oving party. E.D. Tenn. L.R. 7.1(a). Additional briefs and papers are not perm itted without prior approval of the Court, which has not been requested. The Motion to Vacate [Doc. 1] has been fully briefed and is ripe for review. The Motion for Court Order [Doc. 23] will be denied as m oot. IV. CERTIFICATE OF APPEALABILITY When considering a § 2255 m otion, this Court m ust “issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” Rule 11, Rules Governing Section 2255 Proceedings for the United States District Courts. Petitioner m ust obtain a COA before she m ay appeal the denial of her § 2255 m otion. 28 U.S.C. 20 § 2253(c)(1)(B). A COA will issue “only if the applicant has m ade a substantial showing of the denial of a con stitutional right.” 28 U.S.C. § 2253(c)(2). For cases rejected on their m erits, a m ovant “m ust dem onstrate that reasonable jurists would find the district court’s assessm ent of the constitutional claim s debatable or wrong” to warrant a COA. Slack v. McDaniel, 529 U.S. 473, 484 (20 0 0 ). To obtain a COA on a claim that has been rejected on procedural grounds, a m ovant m ust dem onstrate “that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Id. Based on the Slack criteria, the Court finds that a COA should not issue in this cause. V. CON CLU SION For the reasons stated herein, Petitioner has failed to establish an y basis upon which § 2255 relief could be granted, and it is therefore ORD ERED that her § 2255 m otion [Doc. 1; Crim Doc. 556] is D EN IED . The Motion for Evidentiary Hearing [Doc. 21] and a Motion for Court Order [Doc. 23] are D EN IED AS MOOT. A certificate of appealability from the denial of Petitioner’s § 2255 m otion will be D EN IED . A separate judgm ent will enter. SO ORD ERED this 14 th day of Septem ber, 20 20 . _ _ _ _ / s/ Harry S. Mattice, Jr._ _ _ _ HARRY S. MATTICE, J R. UNITED STATES DISTRICT J UDGE 21
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