Brown v. United States

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

AT WINCHESTER

MICHAEL O. BROWN, )

) Case Nos. 4:13-cr-11; 4:18-cv-60

Petitioner, )

) Judge Travis R. McDonough

v. )

) Magistrate Judge Susan K. Lee

UNITED STATES OF AMERICA )

)

Respondent. )

MEMORANDUM OPINION

Before the Court is Petitioner Michael O. Brown’s motion to reconsider the denial of his

§ 2255 motion (Doc. 23 in Case No. 4:18-cv-60). Petitioner’s motion for reconsideration is

GRANTED. For the following reasons, however, Petitioner’s § 2255 motion (Doc. 1 in Case

No. 4:18-cv-60; Doc. 765 in Case No. 4:13-cr-11) is DENIED.

I. BACKGROUND

On May 29, 2013, Petitioner was charged with conspiracy to distribute and possession

with intent to distribute five kilograms or more of cocaine and 280 grams or more of cocaine

base, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A) (count one), and two counts of

distribution of cocaine base, in violation of 21 U.S.C. §§841(a)(1) and (b)(1)(C) (counts nineteen

and twenty). Prior to trial, the prosecution moved to dismiss count nineteen, one of the

§ 841(b)(1)(C) violations, and the trial court granted its motion to dismiss. (See Doc. 558.)

At trial, Petitioner’s co-conspirators testified against him, including defendant Fontaine

Hadley, and the prosecution played recorded phone calls obtained through a wiretap during

which Petitioner discussed purchasing powder cocaine. (Id. at 5.) Hadley testified that

Petitioner distributed cocaine and cocaine base to lower-level sellers, who paid Petitioner back

for the drugs after they sold them. (Id.) The jury ultimately convicted Petitioner of both counts

one and twenty. (See Docs. 576, 628.) Because the Government noticed Petitioner’s three prior

drug felony convictions pursuant to 21 U.S.C. § 851, he was subject to the enhanced mandatory-

minimum penalties in § 841(b)(1)(A). District Judge Harry S. Mattice, Jr., sentenced Petitioner

to life in prison for the §§ 846 and 841(b)(1)(A) violation and 360 months on the § 841(b)(1)(C)

violation, to be served concurrently. (Doc. 634.)

Petitioner directly appealed his conviction and sentence to the Sixth Circuit, which

affirmed the trial court’s judgment and sentence. (Doc. 681.) His subsequent petition for

certiorari to the United States Supreme Court was denied. (Doc. 723.) On October 1, 2018,

Petitioner filed the instant motion for relief pursuant to 28 U.S.C. § 2255.

II. TIMELINESS

Section 2255(f) places a one-year statute of limitations on all petitions for collateral relief

under § 2255 running from: (1) the date on which the judgment of conviction becomes final; (2)

the date on which the impediment to making a motion created by governmental action in

violation of the Constitution or laws of the United States is removed, if the movant was

prevented from making a motion by such governmental action; (3) the date on which the right

asserted was initially recognized by the Supreme Court, if that right has been newly recognized

by the Supreme Court and made retroactively applicable to cases on collateral review; or (4) the

date on which the facts supporting the claim or claims presented could have been discovered

through the exercise of due diligence. 28 U.S.C. § 2255(f).

Petitioner contends in his motion to reconsider that the Court miscalculated the date his

judgment became final, and he is correct. “Finality attaches when this Court affirms a conviction

on the merits on direct review or denies a petition for a writ of certiorari, or when the time for

filing a certiorari petition expires.” Clay v. United States, 537 U.S. 522, 527 (2003). The

Supreme Court denied Petitioner’s petition for a writ of certiorari on October 5, 2017. (Doc. 723

in Case No. 4:13-cr-11.) Therefore, this motion was timely filed on October 1, 2018. (Doc. 1 in

Case No. 4:18-cv-60). The Court will therefore GRANT Petitioner’s motion for reconsideration

and evaluate his § 2255 motion on the merits.

III. STANDARD OF LAW

To obtain relief under 28 U.S.C. § 2255, a petitioner must demonstrate: “(1) an error of

constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of

fact or law . . . so fundamental as to render the entire proceeding invalid.” Short v. United States,

471 F.3d 686, 691 (6th Cir. 2006) (quoting Mallett v. United States, 334 F.3d 491, 496–97 (6th

Cir. 2003)). The petitioner “must clear a significantly higher hurdle than would exist on direct

appeal” and establish a “fundamental defect in the proceedings which necessarily results in a

complete miscarriage of justice or an egregious error violative of due process.” Fair v. United

States, 157 F.3d 427, 430 (6th Cir. 1998).

Additionally, to collaterally attack his conviction based on ineffective assistance of

counsel, Petitioner must establish “that [his] lawyers performed well below the norm of

competence in the profession and that this failing prejudiced [his] case.” Caudill v. Conover,

881 F.3d 454, 460 (6th Cir. 2018) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)).

The performance inquiry requires the defendant to “show that counsel’s representation fell below

an objective standard of reasonableness.” Strickland, 466 U.S. at 688. The prejudice inquiry

requires the defendant to “show 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. “A

reasonable probability is a probability sufficient to undermine confidence in the outcome.” See

Rodriguez-Penton v. United States, 905 F. 3d 481, 487 (6th Cir. 2018) (quoting Strickland, 466

U.S. at 694). “[T]he inability [of the petitioner] to prove either of the prongs—regardless of

which one—relieves the reviewing court of any duty to consider the other.” Nichols v. United

States, 563 F.3d 240, 249 (6th Cir. 2009) (en banc).

There is a “strong presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance.” Strickland, 466 U.S. at 689. Therefore, the court should

resist “the temptation to rely on hindsight . . . in the context of ineffective assistance claims.”

Carson v. United States, 3 F. App’x 321, 324 (6th Cir. 2001); see also Strickland, 466 U.S. at

689 (“A fair assessment of attorney performance requires that every effort be made to eliminate

the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged

conduct, and to evaluate the conduct from counsel’s perspective at the time.”).

“A claim that could have been raised on direct appeal is generally not reviewable in a

section 2255 motion.” Duval v. United States, 372 F. Supp. 3d 544, 549–50 (E.D. Mich. 2019)

(citing Bousley v. United States, 523 U.S. 614, 621 (1998)). But claims of ineffective assistance

of counsel are properly before the court in a § 2255 motion, and these claims may permit the

Court to evaluate claims that would otherwise be considered procedurally defaulted. Weinberger

v. United States, 268 F.3d 346, 351 (6th Cir. 2001). Because Petitioner has alleged that his

counsel was constitutionally deficient for either (1) failing to object to the alleged improprieties

or (2) failing to raise the issues on appeal, the Court will address each of Petitioner’s contentions

in turn.

IV. ANALYSIS

As far as the Court can discern, Petitioner appears to argue that: (1) his indictment was

defective because Sheriff Pitts was called to testify and allowed to participate in his prosecution;

(2) he was tried for crimes for which he was not indicted; (3) the trial court erred, and the

prosecutor committed misconduct, in dismissing count nineteen of the indictment prior to voir

dire; (4) the prosecutor engaged in selective prosecution by offering a less-favorable plea deal to

Petitioner than those extended to his co-conspirators; (5) the prosecutor failed to correct

knowingly perjured testimony; (6) the prosecutor committed Brady violations by not disclosing

the educational background of Fontaine Hadley, a trial witness, and the toxicology report from

Petitioner’s prior state conviction; (7) the prosecutor used a non-qualifying offense in

Petitioner’s § 851 Notice; and, finally, (8) Petitioner’s attorney was constitutionally ineffective

for failing to object to the presentation of evidence used to establish the drug amounts during

sentencing and on appeal, as well as for either failing to object to, or raise on appeal, all of the

above improprieties.

A. Prosecutorial Misconduct

Petitioner contends that the prosecutor engaged in misconduct by allowing Lincoln

County Sheriff to “participate in the prosecution” of defendant. According to Petitioner, Sheriff

Pitts was allegedly biased against him because he filed misconduct complaints against him.

(Doc. 769 in Case No. 4:13-cr-11.) In reviewing claims of prosecutorial misconduct, the court

first determines whether the conduct was improper, and, if so, whether the conduct was

sufficiently flagrant to warrant reversal. United States v. Tarwater, 308 F.3d 494, 501 (6th Cir.

2002). The misconduct must be viewed in the context of the entire trial. Slagle v. Bagley, 457

F.3d 501, 515 (6th Cir. 2006).

Petitioner alleges that Lincoln County Sheriff Pitts should not have been permitted to

attend the proffer sessions of Petitioner’s co-defendants. However, Sheriff Pitts’s presence at the

proffer sessions was disclosed to Petitioner, and he did not testify before the grand jury or the

trial. It is unclear how Sheriff Pitts’s involvement prejudiced Petitioner, as the government

disclosed his involvement and Petitioner’s counsel was able to cross-examine Petitioner’s co-

defendants about his involvement. As a result, there is nothing in the record suggesting that the

prosecutor committed misconduct “tantamount to a due process violation.” Washington v.

Hofbauer, 228 F.3d 689, 709 (6th Cir. 2000). Accordingly, Petitioner’s motion is denied as to

alleged prosecutorial misconduct in permitting Sheriff Pitts to be involved in Petitioner’s

prosecution.

B. Infirmities in the Indictment

Petitioner next asserts that the prosecution’s decision to dismiss count nineteen of the

indictment prior to trial violated his Fifth Amendment right to be tried only for crimes for which

a grand jury returned an indictment. Prior to trial, “the government may, with leave of court,

dismiss an indictment.” Fed. R. Crim. P. 48(a). The “prosecution’s failure to prosecute certain

counts of an indictment does not affect the validity of the indictment as to the other counts.”

United States v. Miller, 471 U.S. 130, 136 (1985) (citing Dealy v. United States, 152 U.S. 539,

542 (1894)). Dismissal of a count “leaves the prosecution just as though no such count had ever

been inserted in the indictment.” Dealy, 152 U.S. at 542. Accordingly, the Court finds that the

prosecution’s decision to dismiss count nineteen prior to trial did not constitute prosecutorial

misconduct. (See Doc. 769 in Case No. 4:13-cr-11.) Additionally, “convictions generally have

been sustained as long as the proof upon which they are based corresponds to an offense that was

clearly set out in the indictment.” Miller, 471 U.S. at 136. Consequently, proceeding to trial on

count one—which was based on evidence that Petitioner alleges overlapped with count

nineteen—did not constitute a deprivation of Petitioner’s Fifth Amendment grand jury right.1

Petitioner asserts that his appellate counsel was ineffective for failing to raise Petitioner’s

objections regarding the indictment on appeal. “Notably, appellate counsel has no obligation to

raise every possible claim and the decision of which among the possible claims to pursue on

appeal is ordinarily entrusted to counsel’s professional judgment.” Sullivan v. United States, 587

F. App’x 935, 942 (6th Cir. 2014) (citing McFarland v. Yukins, 356 F.3d 688, 710 (6th Cir.

2004)). Indeed, “the process of winnowing out weaker arguments on appeal and focusing on

those more likely to prevail, far from being evidence of incompetence, is the hallmark of

effective appellate advocacy.” Id. (quoting Smith v. Murray, 477 U.S. 527, 536 (1986)). “To

overcome the presumption of effectiveness, the ignored claim must have been clearly stronger

than all of those other claims that were actually presented.” Id. at 945.

Petitioner’s appellate counsel raised several issues on appeal: (1) the wiretap evidence

should have been suppressed because Petitioner was not named in the wiretap application, (2) the

government did not properly comply with § 851, because it amended the notice multiple times,

(3) the jury was misled by the confidential informant’s inadmissible testimony, and (4) a due

process collateral attack on Petitioner’s state convictions. (See Doc. 681 in Case No. 4:13-cr-

1 Furthermore, the jury only rendered verdicts on counts charged in the indictment. (See Docs.

15, 576 in Case No. 4:13-cr-11.) The dismissal of count nineteen did not affect the propriety of

the other counts charged in the indictment. Therefore, Petitioner’s contention that his conviction

deprived him of his Fifth Amendment rights on this ground is meritless. See United States v.

Smith, 55 F.3d 157, 159 (4th Cir. 1995) (“The trial court has little discretion in considering a

government motion to dismiss made pursuant to Federal Rule of Criminal Procedure 48(a).”).

“The principal object of the ‘leave of court’ requirement is apparently to protect a defendant

against prosecutorial harassment, e.g., charging, dismissing, and recharging, when the

Government moves to dismiss an indictment over the defendant’s objection.” Rinaldi v. United

States, 434 U.S. 22, 30 n.15 (1977). Consequently, this Court cannot find an error of

constitutional magnitude in the Court’s dismissal of count nineteen.

11.) In this instance, the Court cannot conclude that Petitioner’s argument regarding the

deficiencies in his indictment is stronger than any, let alone all, of the above arguments.

Accordingly, Petitioner’s motion is denied to the extent it seeks relief for alleged infirmities in

the grand jury and indictment process. His ineffective-assistance-of-appellate-counsel claim

based on these alleged errors is also denied.

C. Selective Prosecution

Petitioner contends that the government’s decision to offer his co-conspirators, who had

similar criminal histories to Petitioner, more favorable pleas than those extended to him

constituted selective prosecution. “The Attorney General and United States Attorneys retain

‘broad discretion’ to enforce the Nation’s criminal laws.” United States v. Armstrong, 517 U.S.

456, 464 (1996). “In the absence of clear evidence to the contrary, courts presume that

[prosecutors] have properly discharged their official duties.” Id. (quoting United States v. Chem.

Found., Inc., 272 U.S. 1, 14–15 (1926)). Nonetheless, prosecutors are subject to “constitutional

constraints,” namely the “equal protection component of the Due Process Clause of the Fifth

Amendment.” Id. Selective prosecution applies equally to the plea context. See United States v.

Redondo-Lemos, 955 F.2d 1296, 1300–01 (9th Cir. 1992), overruled on other grounds by United

States v. Armstrong, 48 F.3d 1308 (9th Cir. 1995), rev’d 517 U.S. 456 (1996). But a defendant

has “no right to be offered a plea . . . nor a federal right that the judge accept it.” Missouri v.

Frye, 566 U.S. 134, 147 (2012).

To succeed on a selective-prosecution claim, an individual must offer clear evidence that

that the prosecutor was motivated by a discriminatory purpose and that this purpose produced a

discriminatory effect. Armstrong, 517 U.S. at 464. To show purpose, the Petitioner must prove

that “the decisionmakers in his case acted with discriminatory purpose.” United States v.

Merriweather, 728 F. App’x 498, 508 (6th Cir. 2018) (citing McCleskey v. Kemp, 481 U.S. 279,

292 (1987)). For the effect prong, “a defendant must show that similarly situated individuals . . .

were not prosecuted.” Id. A motion for selective prosecution “must” be raised prior to trial “if

the basis for the motion is reasonably available and the motion can be determined without a trial

on the merits.” Fed. R. Crim. P. 12(3).

In this case, Petitioner has identified no discriminatory purpose on the prosecutor’s part.

Rather, he alleges that he should have been offered the same deals that his co-conspirators.

(Doc. 765 in Case No. 4:13-cr-11, at 10.) However, prosecutors have broad discretion in the

charging and plea-bargaining process. See Bordenkircher v. Hayes, 434 U.S. 357, 365 (1978)

(pleas are acceptable where they “no more than openly present the defendant with the unpleasant

alternatives of forgoing trial or facing charges on which he was plainly subject to prosecution”).

Therefore, Petitioner has not alleged an actionable selective-prosecution claim based on the

prosecutor’s failure to offer him the same plea deal as his co-conspirators, and his motion is

denied to the extent it seeks relief for selective prosecution.

Petitioner further contends that his counsel rendered ineffective assistance by failing to

object to the plea agreement prior to trial. The Court need not reach the question of whether

counsel’s failure to raise a selective prosecution claim was unreasonable as Petitioner was not

prejudiced by the failure. Petitioner’s selective prosecution claim is meritless, as he has no right

to a plea agreement. See Frye, 566 U.S. at 147. Additionally, Petitioner has not alleged a

constitutional violation, as he states that he was discriminated against because of “his prior

criminal record.” (Doc. 769 in Case No. 4:13-cr-11.) As a result, even if defense counsel had

raised a selective prosecution claim, there is not a reasonable probability that the outcome of the

proceedings would have been different. Accordingly, Petitioner’s ineffective-assistance-of-

counsel claim as it relates to his allegation of selective prosecution is denied. Strickland, 466

U.S. at 694.

D. Brady Violations

Petitioner also alleges that the prosecutor withheld Brady evidence by failing to disclose

Fontaine Hadley’s educational background (which, Petitioner alleges, was known to the

prosecutor after Hadley’s Presentence Investigation Report (“PSR”) was conducted) to the

defense. Petitioner argues this evidence undermined the narrative that Hadley had known

Petitioner all his life, because Hadley, contrary to his trial testimony, had grown up in another

city.2 (Doc. 765 in Case No. 4:13-cr-11, at 17.)

“[T]he suppression by the prosecution of evidence favorable to an accused upon request

violates due process where the evidence is material to either guilt or to punishment, irrespective

of the good faith or bad faith of the prosecution.” Brady v. Maryland, 373 U.S. 83, 87 (1963).

“To establish a violation of Brady, [Petitioner] has the burden of establishing that the prosecutor

suppressed evidence; that such evidence was favorable to the defense; and that the suppressed

evidence was material.” Gillard v. Mitchell, 445 F.3d 883, 894 (6th Cir. 2006) (citing Carter v.

Bell, 218 F.3d 581, 601 (6th Cir. 2000)). “Evidence is material only if there is a reasonable

probability that, had the evidence been disclosed to the defense, the result of the proceeding

would have been different. A ‘reasonable probability’ is a probability sufficient to undermine

confidence in the outcome.” Id. (citing United States v. Bagley, 473 U.S. 667, 676 (1985)).

The Court need not determine whether the evidence was suppressed or favorable, because

it is not material. Hadley’s testimony provided only part of the evidence marshaled against

2 Hadley’s PSR indicates he was, indeed, a lifelong resident of Fayetteville, Petitioner’s

hometown. (Doc. 341 in Case No. 4:13-cr-11, at 10.)

Petitioner at trial. Two other co-conspirators testified at trial against Petitioner, and law

enforcement had monitored and conducted controlled buys from him. (Doc. 613 in Case No.

4:13-cr-11, at 4-5.) Additionally, the government introduced wiretap recordings that implicated

Petitioner. (Doc. 10 in Case No. 4:18-cv-60, at 3.) While Hadley was the purported head of the

conspiracy, he was not the sole witness who implicated Petitioner in the scheme, nor was his

testimony the only evidence offered against Petitioner. As a result, Hadley’s educational

background, had it been disclosed, would have been unlikely to change the outcome of the

proceeding. Accordingly, the evidence is not material, and the Court denies Petitioner’s motion

as it pertains to the alleged suppression of Hadley’s educational background.

Petitioner also claims that the prosecutor violated Brady by failing to disclose the

toxicology report from a previous Rutherford County conviction, which was used as a predicate

offense for his § 851 enhancement. The Government notes in its response to Petitioner’s motion

that it did not have the lab report in its custody, a requirement for a Brady violation. (Doc. 10 in

Case No. 4:18-cv-60, at 13); see 373 U.S. at 87. However, even if the lab report were

suppressed, it, too, is not material. Petitioner had three prior felony convictions that were

noticed. (Doc. 628 in Case No. 4:13-cr-11.) Consequently, even if the lab report had been

disclosed and the conviction not been used in the § 851 enhancement, Petitioner would still have

been subject to the same enhanced mandatory-minimum penalty of life in prison. See 21 U.S.C.

§ 841(b)(1)(A) (2010). As a result, the Court cannot conclude that the result of the proceeding

would have been different even if the evidence had been disclosed. Accordingly, the Court

denies Petitioner’s motion as it pertains to both alleged Brady violations.

Petitioner also alleges ineffective assistance of counsel, but this claim also fails.

Petitioner’s trial counsel did request Brady materials, and a motion for Brady materials was

briefed before the trial court. (Docs. 600, 605 in Case No. 4:13-cr-11.) The trial court

subsequently denied the motion. (Doc. 618 in Case No. 4:13-cr-11.) Nonetheless, even if the

Court assumes that Petitioner’s counsel’s conduct fell below an objective level of

reasonableness, Petitioner has not demonstrated prejudice. Even if defense counsel had objected

and alleged prosecutorial misconduct, Petitioner has not demonstrated that the outcome of the

proceedings would have changed, as the evidence presented at trial against Petitioner was more

than sufficient for a reasonable jury to find him guilty of the crimes charged.

E. Perjured Testimony

Petitioner next argues the prosecutor elicited testimony from Fontaine Hadley regarding

his residence history that she knew or should have known was false and misleading. (Doc. 1 in

4:18-cv-60, at 14.) The materiality standard for perjured-testimony claims is less stringent than

in the Brady context: courts only ask “if there is any reasonable likelihood that the false

testimony could have affected the judgment of the jury.” Rosencrantz v. Lafler, 568 F.3d 577,

584, 587 (6th Cir. 2009) (citing Agurs, 427 U.S. at 104). “To prove that the prosecutor’s failure

to correct false testimony violated due process rights, a petitioner must demonstrate that: (1) the

statement was actually false; (2) the statement was material; and (3) the prosecution knew it was

false.” Rosencrantz, 568 F.3d at 583; see also Monea v. United States, 914 F.3d 414, 421 (6th

Cir. 2019) (Petitioner “must prove that the Government’s testimony was indisputably false”

(internal citations omitted)). “Courts may excuse Brady/Giglio violations involving known and

materially false statements as harmless error.” Rosencrantz, 568 F.3d at 584. “In order to obtain

a hearing under § 2255, a petitioner must make a more substantial showing than merely charging

perjury and making the unsupported claim that perjured testimony was knowingly used by the

prosecuting authorities. Nor does he meet the burden upon him by pointing out trivial

inconsistencies or conflicts in the evidence.” Lauer v. United States, 320 F.2d 187, 188–89 (7th

Cir. 1963).

In this case, Petitioner has not offered more than naked assertions of perjury. Indeed, it

is difficult, if not impossible, to infer that the prosecution knew or should have known that

Hadley was offering purportedly false testimony. Hadley’s PSR states that he “is a lifelong

resident of Fayetteville, Tennessee.” (Doc. 341 in Case No. 4:13-cr-11, at 10.) Furthermore,

while Hadley’s statement would go to his credibility as a witness, the Court does not find it

likely that Hadley’s childhood residence convinced the jury to convict, nor does the Court find

that, in the testimony’s absence, the jury would have reached a different verdict. While the

evidentiary threshold to warrant an evidentiary hearing is low, a 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 fact.” Valentine v. United States,

488 F.3d 325, 333 (6th Cir. 2007). Petitioner’s assertion of perjury is contradicted by Hadley’s

PSR and is highly conclusory, as he offers no additional evidence that Hadley did, in fact, not

live in Fayetteville his entire life. As a result, Petitioner’s motion is denied as to his allegations

of the presentation of false testimony.

Petitioner also alleges ineffective assistance regarding counsel’s “failure to conduct a

proper investigation before trial.” (Doc. 769 in Case No. 4:13-cr-11, at 12.) Counsel should

have, Petitioner argues, discovered that Fontaine Hadley was lying about his residential history

and objected to his testimony at trial. (Id.) However, Petitioner has, again, failed to demonstrate

prejudice. Even assuming that the supposedly-perjured testimony was material and should have

been excluded, the other evidence against Petitioner was substantial. Two other co-conspirators

testified against him, and the prosecution presented evidence of both controlled buys and

recorded phone calls in which Petitioner was heard discussing buying cocaine. Consequently,

the Court cannot conclude that the testimony had “a substantial an injurious effect or influence

on the jury’s verdict.” Gilday v. Callahan, 59 F.3d 257, 268 (2d Cir. 1995) (citing Brecht v.

Abrahamson, 507 U.S. 619 (1993)) (favorably cited in Rosencrantz, 568 F.3d at 584–85).

F. Ineffective Assistance at Sentencing

Petitioner also contends that his counsel was ineffective for failing to object to the use of

the testimony of his co-defendants in establishing the drug amounts for which he was held

responsible at sentencing. He further contends that his counsel should have raised the issue on

appeal. However, Petitioner’s counsel raised his objection at his sentencing, and it was

subsequently overruled by the Court. (Doc. 648 in Case No. 4:13-cr-11, at 14–18.) “A district

court may estimate the amount of drugs for which a defendant is responsible, as long as a

preponderance of evidence supports the estimate.” United States v. Pamatmat, 756 F. App’x

537, 549 (6th Cir. 2018). In Petitioner’s case, the Court relied on the estimate in the PSR—853.4

grams of cocaine base—which, in turn, was formed after review of the trial evidence. (Doc. 613,

at 5.) Additionally, the PSR excluded powder cocaine amounts from the drug quantity to prevent

double counting. (Id.) The Court cannot conclude that Petitioner’s argument regarding the

quantity of drugs attributed to him was stronger than his other appellate arguments. Sullivan v.

United States, 587 F. App’x 935, 945 (6th Cir. 2014). Additionally, as the government points

out, Petitioner’s offense level was based on the career-offender range, rather than any drug

particular drug quantity. Accordingly, Petitioner’s ineffective assistance claim regarding drug

amounts is denied.

Regarding his previous Lincoln County conviction, which Petitioner contends was for

“synthetic” cocaine and, as such, not a qualifying offense for an § 851 enhancement, Petitioner

cannot show prejudice. The 2013 version of § 841(b)(1)(A) required a mandatory minimum of

life imprisonment upon the noticing of two, not three, prior drug felony convictions. 21 U.S.C. §

841(b)(1)(A). As a result, even if the conviction for “synthetic” cocaine were removed,

Petitioner still would have received a sentence of life in prison. Accordingly, even if counsel’s

failure to object to the sentence fell below an objective standard of reasonableness, Petitioner has

not demonstrated prejudice stemming from his counsel’s failure.

Petitioner also alleges his appellate counsel was ineffective for failing to collaterally

attack his illegal state court sentences and his subsequent federal sentence, which relied upon

prior state convictions in designating Petitioner a career offender. A “presumption of validity

that attach[es] at the time of sentencing is conclusive” if a petitioner “failed to pursue [a

collateral attack] while [it was] available” or if he or she “did so unsuccessfully.” Daniels v.

United States, 532 U.S 374, 382 (2001). Furthermore, as the Sixth Circuit noted in affirming

Petitioner’s conviction and sentence, a defendant cannot collaterally attack a state conviction

during sentencing or on appeal unless he is asserting a deprivation of his right to counsel. See

Custis v. United States, 511 U.S. 485, 487 (1994). Petitioner’s counsel raised the issues during

sentencing and on direct appeal, and both the trial court and the Sixth Circuit appropriately

denied Petitioner’s contentions. (See Docs. 648, 681.) As a result, Petitioner’s ineffective-

assistance-of-counsel claims regarding counsel’s failure to present these issues to the trial and

appellate courts fail, and his § 2255 is denied to the extent it seeks relief based on such allegedly

failures.

G. Qualifying Offenses

Petitioner also contends his counsel was constitutionally ineffective for failing to argue to

the appellate court that his career-offender designation was based upon non-qualifying offenses.

Petitioner contends that his prior Rutherford County conviction was not a controlled substances

conviction. In determining whether a conviction is a controlled substance offense under § 4B1.2

of the Guidelines, the Sixth Circuit uses the “categorical approach” and courts look “only to the

fact of conviction and the statutory definition—not the facts underlying the offense.” United

States v. Douglas, 563 F. App’x 371, 377 (6th Cir. 2014). The inquiry “is not whether the

elements of the crime contain the same words as the Guidelines’ definition—it is “whether the

elements of the offense are of the type that would justify its inclusion within the definition of a

controlled-substance offense.” Id. (quoting United States v. Woodruff, 735 F.3d 445, 448 (6th

Cir. 2013)).

Violations of Tennessee Code Annotated § 39-17-417 “have always [been] treated [as] a

categorical controlled substances offense.” Id.; see United States v. Alexander, 686 F. App’x

326, 327–28 (6th Cir. 2017) (same). Petitioner was convicted in 1989 and in 1995 of violations

of Tennessee Code Annotated § 39-17-417 (See Doc. 630-2, at 1; Doc. 630-3, at 1.) Petitioner’s

1983 conviction does not specify the statute of conviction and simply notes that Petitioner was

convicted of “sale of cocaine.” (Doc. 630-1.) Nonetheless, only two prior convictions are

needed to trigger the career-offender Guidelines, and both Petitioner’s 1989 and 1995 offenses

qualify as controlled substance felonies. See U.S.S.G. § 4B1.1(b) (“the defendant has at least

two prior felony convictions of a crime of violence or a controlled substance offense.”)

Consequently, Petitioner cannot show that his counsel’s allegedly deficient performance

prejudiced him, as at least two of his prior convictions did, indeed, qualify him for career-

offender status. Consequently, Petitioner’s motion is denied as to his contentions that his

counsel was deficient for not objecting to the use of his previous state-court convictions.

V. CONCLUSION

For the foregoing reasons, Petitioner’s § 2255 (Doc. 765 in Case No. 4:13-cr-11; Doc. 1 in

Case No. 4:18-cv-60) motion is DENIED.

AN APPROPRIATE JUDGMENT SHALL ENTER.

/s/ Travis R. McDonough

TRAVIS R. MCDONOUGH

UNITED STATES DISTRICT JUDGE