Warren v. USA, No. 4:2017cv00060 - Document 8 (E.D. Tenn. 2020)
Court Description: MEMORANDUM OPINION: Petitioner has failed to establish any basis upon which § 2255 relief could be granted, and his § 2255 motion [Case No. 4:15-cr-10, Crim. Doc. 39; Case No. 4:17-cv-60, Doc. 1] will be DENIED. A certificate of appealability from the denial of his § 2255 motion will be DENIED. A separate judgment will enter. Signed by District Judge Harry S Mattice, Jr on 9/21/2020. (AWS) Mailed to Kevin Warren.
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Warren v. USA Doc. 8 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE at WINCHESTER KEVIN J OEL WARREN, ) ) ) ) ) ) ) ) ) Petitioner v. UNITED STATES, Respondent Case Nos. 4:15-cr-10 ; 4:17-cv-60 J udge Mattice Magistrate J udge Lee MEMORAN D U M OPIN ION Before the Court is the Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 filed by federal inm ate Kevin Warren [Case No. 4:15-cr-10 , Crim . Doc. 39; Case No. 4:17-cv-60 , Doc. 1]. As ordered, the Governm ent has filed a response to the Motion. [Doc. 3]. Warren sought and was granted an extension of tim e in which to file a reply [Doc. 5], but did not do so. 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 Warren’s § 2255 m otion will be D EN IED . I. BACKGROU N D FACTS AN D PROCED U RAL H ISTORY On J uly 6, 20 15, Petitioner Kevin J oel Warren was charged with knowing possession of child pornography. [Crim . Doc. 1]. Pursuant to a written plea agreem ent [Crim . Doc. 6], Petitioner pleaded guilty to possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B). The plea agreem ent recited that the m axim um term of 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 im prisonm ent was 10 years, followed by a term of supervised release of at least 5 years and up to life. [Id. at 1]. In support of his plea, Petitioner stipulated to the following: • In J une 20 14, an agent of the Tennessee Bureau of Investigation identified a com puter using the ARES person-to-person file sharing network at a specific IP address that had 10 5 files suspected of containing child pornography. [Id. at 2]. • The agent downloaded child pornography that was stored and offered through file-to-file sharing from the sam e IP address. • • The IP address belonged to a specific address in Shelbyville, Tennessee. On J uly 17, 20 14, TBI agents executed a search warrant at the address associated with the IP address, which was Warren’s residence, and discovered num erous im ages of child pornography on Warren’s com puter. • Warren adm itted to downloading im ages of child pornography. [Crim . Doc. 6 at 2]. In the plea agreem ent, Petitioner agreed not to file any m otions pursuant to 28 U.S.C. § 2255 or otherwise collaterally attack his conviction or sentence, with two exceptions: he retain ed the right to file a § 2255 m otion as to ineffective assistan ce of counsel and prosecutorial m isconduct. [Id. at 7]. Sim ilarly, Petitioner waived his right to appeal, except as to a sentence im posed above the sentencing guideline range determ ined by the Court or above any m andatory m in im um sentence deem ed applicable by the Court, whichever is greater. [Id.]. The Court’s Probation Office prepared a Presentence Investigation Report which, as revised, calculated Petitioner’s base offense level at 18 . [Crim . Doc. 18 at ¶ 12]. The PSR calculation added 15 points for special offense characteristics, including two points 2 because “[t]he defen dant used a peer to peer file sharing program which constitutes distribution” pursuant to U.S.S.G. §2G2.2(b)(3)(F). [Id. at ¶ 14]; see United States Sentencing Com m ission, Guidelines Manual, U.S.S.G. §2G2.2(b)(3)(F) (Nov. 20 15). Petitioner’s adjusted offense level was 33, less three points for acceptance of responsibility. [Id. at ¶¶ 23-25]. Based on an offense level of 30 and a category two crim in al history, Petitioner’s guidelin e im prisonm ent range was 10 8 to 135 m onths. [Id. at ¶ 46]. Because the statutory m axim um sentence is 120 m onths, his effective guideline range was 10 8 to 120 m onths. [Id.]. Petitioner’s counsel did not object to the PSR, but m oved for a sentencin g variance below the guideline range. [Crim . Doc. 31]. The m otion was based on Petitioner’s seizure disorder, related m edical and psychological difficulties, and their relationship to the onset of crim inal behavior. The Court adopted the PSR without change [Crim . Doc. 35] and im posed a sentence of 10 8 m onths’ im prisonm ent, followed by ten years of supervised release. [Crim . Doc. 34]. Petitioner did not appeal. On October 10 , 20 17, he filed a tim ely Motion to Vacate. 2 Petitioner raises four grounds for appeal, each based on his contention that he should not have received a two-point sentencing enhancem ent for distribution of child pornography under U.S.S.G. § 2G2.2(b)(3)F). Petitioner argues (1) his counsel was ineffective for failing to challenge the enhancem ent, (2) the Court im properly applied the senten cing guidelines, (3) the United States Attorney’s Office is responsible for the enhancem ent, 2 The Motion was docketed on October 16, 20 17, but sign ed on October 10 , 20 17. See Sanchez-Castellano v. United States, 358 F.3d 424, 427 (6th Cir. 20 0 4) (§ 2255 m otion deem ed filed when presented to prison authorities). Petition er was sentenced on Septem ber 26, 20 16, and judgm ent en tered on Septem ber 28 , 20 16. “[W]hen a federal crim inal defendant does not appeal to the court of appeals, the judgm ent becom es final upon the expiration of the period in which the defendant could have appealed to the court of appeals, even when no notice of appeal is filed.” Id.; see Fed. R. App. P. 4(b)(1)(A) (providin g fourteen days for direct appeal). 3 constituting prosecutorial m isconduct, and (4) a subsequent am endm ent to the guidelines m akes Petitioner eligible for a sentence reduction. II. LEGAL STAN D ARD S 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, 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). III. AN ALYSIS A. In e ffe ctive As s is tan ce o f Co u n s e l Petitioner’s first ground for relief is ineffective assistance of counsel. His supporting facts are as follows: Counsel failed to object to the addition/ inclusion of an enhancem ent for distribution of child pornography (USSG § 2G2.2(b)(3)(F) when Petitioner was not charged with distribution, nor was distribution ever alleged in the relevant facts/ conduct. [Doc. 1 at 4]. To establish that he 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 4 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 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 ). Petitioner has not m ade the showing required by Strickland. He claim s his counsel was in effective for failing to object to the enhancem ent for distribution of child pornography “when Petitioner was not charged with distribution, nor was distribution ever alleged in the relevant facts/ conduct.” [Doc. 1 at 4]. To clarify, distribution was alleged in the PSR. The PSR indicates that the TBI began investigatin g “ARES peer to peer file sharing program at a specific IP address.” [Doc. 28 at ¶ 5]. According to the PSR, Petitioner told TBI agents he thought he had turned off the file sharing ability on his com puter and adm itted that he had m em ory issues from a seizure disorder. [Id. at ¶ 6]. As the United States points out, at the tim e of Defendant’s conviction, use of a peer to peer file sharing program was sufficient to support an enhancem ent for distribution under U.S.S.G. § 2G2.2(b)(3)(F). United States v. Abbring, 788 F.3d 565 (6th Cir. 20 15). The defendant in Abbring was charged with receiving child pornography. Like Petitioner, he downloaded child pornography using the peer-to-peer file sharing program Ares. Id. at *566. At sentencing, the district court concluded he had distributed child pornography 5 by using Ares. Id. This triggered a two-level enhancem ent under § 2G2.2(b)(3)(F). On appeal, the defendant argued the court had m isapplied the Guidelines because his conduct did not rise to the level of distribution. Id. at 567. The United States Court of Appeals for the Sixth Circuit rejected the defendant’s contention that his use of Ares was insufficient to support the distribution enhancem ent. The court explained: “Tim e after tim e, we have applied the catchall two-level enhan cem ent to distribution through such file-sharing software.” Id. The defendant in Abbring had “tried to prevent” file sharing through Ares by interrupting active downloads, since he could not disable the autom atic file-sharin g com ponent of the program during downloading. Id. “As for Abbring’s intent, it m akes no difference to whether he planned to engage in ‘distribution’ under the guidelines; all that m atters is the knowing sharing of the files.” Id. at 567-68. Petitioner does not challenge any of the factual allegations in the PSR. He does not reiterate his statem ent to law enforcem ent that he thought the file-sharing com ponent of Ares was turned off. His only contention is that he was not charged with distribution and distribution was not alleged. But distribution was alleged in the PSR, and he acknowledged in his plea agreem ent that his sentence would be determ ined “by the Court after it receives the presentence investigation report” and would be “based on the entire scope of the defendant’s crim inal conduct, the defendant’s crim inal history, and pursuant to other factors and guidelines….” [Doc. 6 at 3]. At the tim e of his sentence, Sixth Circuit precedent clearly perm itted a two-level enhancem ent for distribution through a file sharing program . Petitioner is sim ply m istaken that his conduct did not satisfy the standard at the tim e. Accordingly, Petitioner’s counsel was not ineffective for failing to raise this argum ent. See Sutton v Bell, 645 F.3d 752, 755 (6th Cir. 20 11) (“Given the 6 prejudice requirem ent, ‘counsel cannot be ineffective for failure to raise an issue that lacks m erit.’” (quoting Greer v. Mitchell, 264 F.3d 663, 676 (6th Cir. 20 0 1)). B. Ap p licatio n o f Se n te n cin g Gu id e lin e s Warren’s challenge to the Court’s application of a distribution enhancem ent fails because “a defendant cannot use a § 2255 m otion to vindicate non-constitutional challenges to advisory guideline calculations.” Snider v. United States, 90 8 F.3d 183, 191 (6th Cir. 20 18); Bullard v. United States, 937 F.3d 654, 660 (6th Cir. 20 19) (“A m isapplication-of-an-advisory-guidelines-range claim is not cognizable under § 2255.” (cleaned up)). Petitioner contends he received a two-point enhancem ent for distribution of child pornography “when no distribution was ever alleged, m uch less proven.” [Doc. 1 at 5]. As explained above, the enhancem ent was justified under the law of the Sixth Circuit at the tim e of Petitioner’s senten cing. Moreover, if the two-poin t enhancem ent were rem oved, Petitioner’s sentence would still be within the guideline range: with an offense level of 28 and a category two crim inal history, his guideline range would have been 8 710 8 m onths. See U.S.S.G. Sentencing Table (Nov. 20 15). Section 2255 authorizes post-conviction relief only when a sentence “was im posed in violation of the Constitution or laws of the United States, or… the court was without jurisdiction to im pose such senten ce, or… the senten ce was in excess of the m axim um authorized by law, or is otherwise subject to collateral attack….” 28 U.S.C. § 2255(a). As the Sixth Circuit has explained, “§ 2255 claim s that do not assert a constitutional or jurisdictional error are generally cognizable only if they involved a ‘fundam ental defect which inherently results in a com plete m iscarriage of justice.’” Snider, 90 8 F.3d at 191 (quoting Davis v. United States, 417 U.S. 333, 346 (1974)). Petitioner’s sentence was below the statutory m axim um and within the range recom m ended by the United States 7 Sentencing Guidelin es, with or without the two-point enhan cem en t. He does not allege he is actually innocent of the offense of conviction. Even were the enhancem ent im proper, it cannot plausibly be characterized as a fundam ental defect. Id. at 191. In addition, Petitioner waived the right to collaterally attack his conviction and sentence except as to prosecutorial m isconduct or ineffective assistance of counsel. The United States Court of Appeals for the Sixth Circuit has consistently held that plea agreem ent waivers of § 2255 rights are enforceable. See Cox v. United States, 695 F. App’x 8 51, 8 53 (6th Cir. 20 17); Davila v. United States, 258 F.3d 448, 450 (6th Cir. 20 0 1). “[I]t is well settled that a defen dant in a crim inal case m ay waive ‘any right, even a constitutional right,’ by m eans of a plea agreem ent.” Cox, 695 F. App’x at 853 (quoting United States v. Flem ing, 239 F.3d 761, 763-64 (6th Cir. 20 0 1)) (internal quotation m arks om itted). To the extent Petitioner raises this issue separately from his ineffective assistan ce of counsel claim , he has waived it. Finally, Petitioner’s claim is procedurally defaulted because he failed to raise it on appeal and has not shown cause or prejudice to excuse the default. C. Pro s e cu to rial Mis co n d u ct Petitioner next argues that the “U.S. Attorney’s Office allowed (if not caused) enhan cem ent for Distribution of Child Pornography (USSG § 2G2.2(b)(3)(F)) with no grounds for such.” [Doc. 1 at 6]. This is the entirety of Petitioner’s argum ent in this regard. Because it is procedurally defaulted and substantively m eritless, this challenge also fails. A m otion to vacate is n ot a substitute for a direct appeal. Regalado v. United States, 334 F.3d 520 , 528 (6th Cir. 20 0 3). Claim s that could have been raised on direct appeal but were not will not be entertained via a m otion under § 2255 unless the petitioner shows: (1) cause and actual prejudice to excuse his failure to raise the claim s previously; 8 or (2) that he is “actually innocent” of the crim e. Ray v. United States, 721 F.3d 758 (6th Cir. 20 13). Petitioner does not attem pt to m ake either showing, and as the Court has explained, his in effective assistance of counsel claim is unavailing. H is claim is therefore procedurally defaulted. Petitioner’s prosecutorial m isconduct claim also fails because it is no m ore than a bald assertion without any allegation of wrongdoing. Petitioner bears the burden of establishing an error of constitutional m agnitude which had a substantial or injurious effect on the crim inal proceedings. Reed v. Farley , 512 U.S. 339, 353 (1994). And even a pro se prisoner seeking § 2255 relief m ust state his claim s with som e degree of specificity. Here, Petitioner claim s the United States Attorney’s Office “caused” a distribution enhan cem ent under § 2G2.2(b)(3)(F), but does not explain this accusation or provide any supporting law or facts. In fact, the enhancem ent was calculated by the Court’s Probation Office in accordance with the law as it existed at the tim e of sentencing. It is not at all clear what the United States Attorney’s Office had to do with the enhancem ent or what m isconduct they are supposed to have com m itted. Petitioner’s claim is wholly without m erit. D. Su bs e qu e n t Gu id e lin e s Am e n d m e n t Finally, Petitioner argues that a subsequent am endm ent to the United States Sentencing Guidelin es m akes him eligible for a two-point reduction. After Petitioner was convicted, the Sentencing Com m ission issued Am endm ent 80 1 to clarify the m ental state required for the distribution enhancem ent of U.S.S.G. § 2G2.2(b)(3). Prior to the am endm ent, there had been a circuit split regarding whether use of peer-to-peer file sharing program s was sufficient to constitute distribution. Noting the circuit split, the Com m ission sided with courts who had held that the two-level distribution enhancem ent 9 requires a showing that the defendant knew of the file-sharing properties of the program . United States Sentencing Com m ission, Guidelines Manual, Supplem ent to Appendix C, Am endm ent 80 1, Reason for Am endm ent. First, Petitioner waived his right to collaterally attack his sentence in his written plea agreem ent. He has not presented any reason why this waiver should not be enforced. He does not attack the validity of his conviction and sentence, but sim ply argues his sentence should be reduced due to a subsequent change to the Sentencing Guidelines. His challenge also fails because it raises neither constitutional nor jurisdiction al error. Though a subsequent am endm ent to the Sentencing Guidelines m ay provide a basis for relief on collateral review, 3 this is not such an am endm ent. “[C]larifying am en dm ents m ay be applied retroactively,” while substantive am endm ents to the Guidelines m ay not. United States v. Geerken, 50 6 F.3d 461, 465 (6th Cir. 20 0 7)). “An am endm ent is clarifying if it ‘changes nothing concerning the legal effect of the guidelines, but m erely clarifies what the Com m ission deem s the guidelin es to have already m eant.’” Id. (quoting United States v. Capers, 61 F.3d 110 0 , 110 9 (4th Cir. 1995)). To determ ine whether an am endm ent is clarifying or substantive, courts look to (1) how the Sentencing Com m ission characterized the am endm ent; (2) whether the am endm ent changes the 3 “Nevertheless, if an am en dm ent clarifies a sentencing guideline, rather than substantively chan ges a guidelin e, a sentencing court can reduce the sentence by applyin g the am endm ent retroactively, even if it is not listed in U.S.S.G. § 1B1.10 (c). But again , in such a case the prison er files a § 2255 m otion with the sentencin g court.” Rivera v . W arden , FCI, Elkton, 27 F. App’x 511, *4 (6th Cir. 20 0 1); see also Diaz v. United States, 20 17 WL 656990 1, *1 (6th Cir. J une 23, 20 17) (“Where, as here, a defendant did not challenge his sentence on direct appeal, a clarifyin g am endm ent m ay provide the basis for § 2255 relief only if it brin gs to light a ‘com plete m iscarriage of justice.’” (quoting Grant v. United States, 72 F.3d 50 3, 50 6 (6th Cir. 1996)); United States v. Fow ler, 3:10 -cr-145, 20 18 WL 8 34615, *2 n .1 (E.D. Ten n. Feb. 12, 20 18 ) (“And, contrary to the govern m ent’s position , the Sixth Circuit has held that a defendant m ay file a § 2255 m otion to vacate or correct her sentence in light of ‘an am endm ent [that] clarifies a sentencing guideline, … even if it is not listed in U.S.S.G. § 1B1.10 (d).” (quoting Rivera, 27 F. App’x at 515)). 10 language of the guideline or only the com m entary; and (3) whether the am en dm ent resolves an am biguity in the wording of the guideline. Id. Application of these factors indicates the am endm ent is substantive. Am endm ent 8 0 1 altered the text of the Guidelines as well as the related com m en tary. It was explicitly design ed to resolve a circuit conflict regarding, inter alia, the application of the distribution enhancem ent to cases involving peer-to-peer file sharing. The am endm ent also had the significant legal im pact of adding a m ental state requirem ent for the distribution enhancem ent. Though the Sixth Circuit does not appear to have addressed this issue yet, the United States Court of Appeals for the Tenth Circuit has, and it determ ined the am endm ent is not retroactive on collateral review. United States v. Mullins, 748 F. App’x 795, 80 0 -1 (10 th Cir. 20 18 ) (affirm ing district court denial of § 2255 m otion to vacate). The Tenth Circuit found that Am endm ent 80 1 “does not retroactively apply because the am endm ent effected a substantive change in the legal landscape, rather than a m ere clarification.” Though the Sentencing Com m ission indicated it was clarifying the requisite m ental state for distribution, it also indicated it was “‘adopt[ing] an approach not previously specified in the enhancem ent.” Id. Because Am endm ent 80 1 was substantive, it cannot be applied retroactively on a m otion to vacate. And even were the distribution enhancem ent rem oved, Petitioner’s sentence would still fall within the applicable guidelin e range. He has therefore failed to allege a fundam ental defect or constitutional error and is not entitled to relief. Finally, Petitioner’s fourth ground for relief arguably seeks a sentence reduction under 18 U.S.C. § 3582 rather than § 2255. “[Section] 2255 is the proper m echanism for challenging the defen dant’s original sentence, while § 3582 is the proper m echanism for seeking a sentence reduction based on subsequent guideline am en dm ents.” Fow ler, 20 18 11 WL 8 34615 at *2 (E.D. Tenn. Feb. 12, 20 18) (citing United States v. Carter, 50 0 F.3d 48 6, 491-92 (6th Cir. 20 0 7)). Though the m ajority of Petitioner’s Motion focuses on his original sentence, his fourth ground relates to a “post-senten cing guideline am en dm ent” and therefore “corresponds in substance to § 3582.” Id. Section 358 2(c)(2) only perm its m odification of an already-im posed sentence based on a subsequently lowered senten cing range “if such reduction is consistent with applicable policy statem ents issued by the Sentencing Com m ission.” 18 U.S.C.A. § 3582(c)(2). And the Sixth Circuit has held that only those am endm ents listed in U.S.S.G. § 1b1.10 (d) apply retroactively for resentencing purposes. See United States v. Dullen, 15 F.3d 68, 71 (6th Cir. 1994) (“U.S.S.G. § 1B1.10 (d)… exists precisely for the purpose of identifying those am endm ents that are intended to be effective retroactively.”). Accordingly, to the extent Petitioner seeks a reduction in his senten ce pursuant to 18 U.S.C.A. § 3582, his m otion will be denied. 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 of the Rules Governing Section 2255 Proceedings for the United States District Courts. Petitioner m ust obtain a COA before he m ay appeal the denial of his § 2255 m otion. 28 U.S.C. § 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 12 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 his § 2255 m otion [Case No. 4:15-cr-10 , Crim . Doc. 39; Case No. 4:17-cv-60 , Doc. 1] will be DEN IED . A certificate of appealability from the denial of his § 2255 m otion will be D EN IED . A separate judgm ent will enter. SO ORD ERED this 21st day of Septem ber, 20 20 . / s/ Harry S. Mattice, Jr. HARRY S. MATTICE, J R. UNITED STATES DISTRICT J UDGE 13
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