Small v. United States

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

AT KNOXVILLE

JOSH SMALL, )

)

Petitioner, )

)

v. ) Nos. 3:21-CV-423

) 3:18-CR-137

UNITED STATES OF AMERICA, )

)

Respondent. )

MEMORANDUM OPINION

Before the Court is Josh Small’s (“Petitioner’s”) pro se motion to vacate, set aside,

or correct his sentence pursuant to 28 U.S.C. § 2255. [Doc. 1; Criminal Docket (“Crim.”)

Doc. 130].1 The United States has responded in opposition [Doc. 8], and Petitioner filed a

reply [Doc. 17]. Petitioner also filed a motion to appoint counsel. [Doc. 2]. For the reasons

below, Petitioner’s motion for counsel [Doc. 2] will be DENIED and his § 2255 motion

[Doc. 1; Crim. Doc. 130] will be DENIED.

I. BACKGROUND

In April 2019, Petitioner and one co-defendant were charged in a six-count second

superseding indictment pertaining to conspiracy to kidnap, kidnapping, brandishing a

firearm in relation to a crime of violence, and being a felon in possession of a firearm.

[Crim. Doc. 39]. Petitioner was named in four counts. [See id.]. Prior to trial, the United

1 Document numbers not otherwise specified refer to the civil docket.

States moved to dismiss Counts 3-6 of the second superseding indictment and proceeded

only on Counts 1 and 2. [Crim. Doc. 61]. On July 10, 2019, after a 3-day trial, the jury

returned a verdict of guilty as to Counts 1 and 2 of the second superseding indictment.

[Crim. Doc. 69]. 2

Prior to sentencing, a Revised Presentence Investigation Report (“RPSR”) was

prepared. The RPSR calculated a total offense level of 36 and a criminal history category

of IV, resulting in a guideline range of 262 to 327 months. [Crim. Doc. 84, ¶ 94]. The

Government filed a notice of no objections to the PSR. [Crim. Doc. 74]. The Government

also filed a sentencing memorandum and a motion for an upward variance wherein it

concurred that the advisory guideline range was correct, but requested the Court impose a

lifetime term of imprisonment. [Crim Doc. 81]. Petitioner, through counsel, did not file an

official objection to the RPSR, but raised an objection to the two-level enhancement

pursuant to U.S.S.G. § 3A1.1(b)(1) for an unusually vulnerable victim. [Crim. Doc. 83].

Petitioner, through counsel, filed a sentencing memorandum, requesting the Court not

apply the enhancement for a vulnerable victim and sentence Petitioner within the adjusted

guideline range of 210 to 262 months. [Crim. Doc. 80].

On January 28, 2020, the Court sentenced Petitioner to a total of 360 months’

imprisonment and then five years of supervised release. [Crim. Doc. 99]. Petitioner filed a

notice of appeal [Crim. Doc. 103], but the Court of Appeals affirmed Petitioner’s sentence

on February 11, 2021. [Crim. Doc. 124]. Petitioner filed for a writ of certiorari [Crim. Doc.

2 The Court incorporates by reference the facts of the case as set forth in the Offense Conduct

section of the RPSR. [Crim. Doc. 84, ¶¶ 15-30].

127] which was denied by the Supreme Court on October 7, 2021. On December 20, 2021,

Petitioner filed this timely § 2255 motion.

II. STANDARD OF REVIEW

Under § 2255(a), a federal prisoner may move to vacate, set aside, or correct his

judgment of conviction and sentence if he claims that the sentence was imposed in violation

of the Constitution or laws of the United States, that the court lacked jurisdiction to impose

the sentence, or that the sentence is in excess of the maximum authorized by law or is

otherwise subject to collateral attack. 28 U.S.C. § 2255(a). As a threshold standard, to

obtain post-conviction relief under § 2255, the motion must allege: (1) an error of

constitutional magnitude; (2) a sentence imposed outside the federal statutory limits; or

(3) an error of fact or law so fundamental as to render the entire criminal proceeding

invalid. Mallett v. United States, 334 F.3d 491, 496-97 (6th Cir. 2003); Moss v. United

States, 323 F.3d 445, 454 (6th Cir. 2003).

A movant bears the burden of demonstrating an error of constitutional magnitude

which had a substantial and injurious effect or influence on the criminal proceedings. See

Reed v. Farley, 512 U.S. 339, 353 (1994) (noting that the Petitioner had not shown that his

ability to present a defense was prejudiced by the alleged constitutional error); Brecht v.

Abrahamson, 507 U.S. 619, 637-38 (1993) (addressing the harmless-error standard that

applies in habeas cases alleging constitutional error). To obtain collateral relief under

§ 2255, a movant must clear a significantly higher hurdle than would exist on direct appeal.

United States v. Frady, 456 U.S. 152, 166 (1982).

When a defendant files a § 2255 motion, he must set forth facts which entitle him

to relief. Green v. Wingo, 454 F.2d 52, 53 (6th Cir. 1972); O’Malley v. United States, 285

F.2d 733, 735 (6th Cir. 1961). A movant must prove that he is entitled to relief by a

preponderance of evidence. Pough v. United States, 442 F.3d 959, 964 (6th Cir. 2006). A

motion that merely states general conclusions of law, without substantiating the allegations

with facts, is without legal merit. Loum v. Underwood, 262 F.2d 866, 867 (6th Cir. 1959);

United States v. Johnson, 940 F. Supp. 167, 171 (W.D. Tenn. 1996).

Under Rule 8(a) of the Governing Rules, the Court is to review the answer, any

transcripts, and records of prior proceedings and any material submitted under Rule 7 to

determine whether an evidentiary hearing is warranted. Rules Governing Section 2255

Proceedings, Rule 8(a). If a petitioner presents a factual dispute, then “the habeas court

must hold an evidentiary hearing to determine the truth of the petitioner’s claims.” Huff v.

United States, 734 F.3d 600, 607 (6th Cir. 2013) (quoting Valentine v. United States, 488

F.3d 325, 333 (6th Cir. 2007)). An evidentiary 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 facts.” Valentine, 488 F.3d

at 333 (quoting Arrendondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999)). The Court

FINDS no need for an evidentiary hearing in the instant case.

III. ANALYSIS

As an initial matter, Petitioner seems to raise nine claims in this § 2255 motion: 1)

Petitioner challenges the legality of his arrest, 2) ineffective assistance of counsel for

failing to follow up on “a cruel and unusual punishment hearing schedule for September

24, 2018,” 3) ineffective assistance of counsel for failing to file a motion to dismiss due to

Petitioner’s illegal arrest, 4) ineffective assistance of counsel for neglecting to file a motion

to suppress illegally seized evidence, 5) ineffective assistance for not allowing Petitioner

to view discovery or Brady material; 6) prosecutorial misconduct for withholding

exculpatory evidence from the jury, 7) ineffective assistance for allowing the Government

to fabricate and change eyewitness statements and descriptions, 8) that the Court violated

Petitioner’s First Amendment by rushing him to silence, and 9) that witnesses lied during

trial and misrepresented facts to the jury. [Doc. 1; Crim. Doc. 130]. The Court will first

address Petitioner’s motion for counsel before addressing Petitioner’s § 2255 claims.

A. Petitioner’s Motion for Counsel [Doc. 2]

As to Petitioner’s motion to appoint counsel [Doc. 2], there is no constitutional right

to counsel in post-conviction proceedings. See Pennsylvania v. Finley, 481 U.S. 551, 555

(1987) (observing that the “right to appointed counsel extends to the first appeal of right,

and no further”); Foster v. United States, 345 F.2d 675, 676 (6th Cir. 1965) (noting that the

constitutional right to counsel does not extend to collateral proceedings). Even so, a district

court has discretion, under 18 U.S.C. § 3006A(a)(2), to appoint counsel when “the interests

of justice so require.” See Childs v. Pellegrin, 822 F.2d 1382, 1384 (6th Cir. 1987). In

exercising discretion as to whether to appoint counsel, a court should consider several

factors, including the nature of the case, whether the issues are legally or factually complex,

and the litigant’s ability to present the claims for relief to the court. See Lavado v. Keohane,

992 F.2d 601, 605 (6th Cir. 1993).

Here, Petitioner states that his § 2255 motion “has constitutional as well as human

right violations that need to be raised” as well as “a wrongful conviction that needs to be

raised post-conviction” in a § 2255 proceeding that the “appellate court left open.” [Doc.

2]. As discussed in this memorandum opinion, Petitioner has adequately presented his

claims to the Court without the benefit of counsel, and the Court has found the issues to be

without merit. Petitioner has failed to offer any material facts that would justify the

appointment of counsel. Accordingly. his motion for counsel [Doc. 2] will be DENIED.

B. Petitioner’s § 2255 Motion [Doc. 1; Crim. Doc. 130]

a. Claims 1 and 9

Except for a claim of ineffective assistance of counsel, a federal prisoner’s failure

to raise a claim on direct appeal results in a procedural default of that claim. Bousley v.

United States, 523 U.S. 614, 621 (1998); Peveler v. United States, 269 F.3d 693, 698 (6th

Cir. 2001). For a federal prisoner to obtain review of a defaulted claim in a § 2255 motion,

he must show cause to excuse his failure to raise the claim previously and actual prejudice

resulting from the alleged violation. Bousley, 523 U.S. at 622; Peveler, 269 F.3d at

698-700. If a Petitioner cannot show cause and prejudice, he may be able to obtain review,

if his case falls within a narrow class of cases permitting review to prevent a fundamental

miscarriage of justice, such as when new evidence shows that a constitutional violation has

probably resulted in a conviction of one who is actually innocent. Bousley, 523 U.S. at 622-

23, citing Murray v. Carrier, 477 U.S. 478, 495-96 (1986).

The Court finds that Petitioner’s Claims 1 and 9 are procedurally defaulted as

Petitioner did not raise any of these issues on appeal. See Massaro v. United States, 538

U.S. 500, 504 (2003) (“[T]he general rule [is] that claims not raised on direct appeal may

not be raised on collateral review unless the petitioner shows cause and prejudice.”)

(citing United States v. Frady, 456 U.S. 152, 167-168 (1982), and Bousley, 523 U.S. at

621–22). Petitioner has also not attempted to show cause for failing to raise these issues on

appeal nor has he attempted to show prejudice from not reviewing these claims on appeal.

Further, Petitioner has not provided new evidence that a constitutional violation occurred

resulting in conviction of someone who is actually innocent. Accordingly, Petitioner’s

Claims 1 and 9 will be DENIED as procedurally defaulted.

b. Claim 8

Petitioner’s Claim 8 alleges that the Court “rushed to silence [Petitioner] from

petitioning . . . for absolution.” [Doc. 1; Crim. Doc. 130]. The Court liberally construes this

claim to refer to the Court’s denial of Petitioner’s pro se motions while he was represented

by counsel. However, this argument was already raised and litigated on direct appeal. In

its order affirming Petitioner’s conviction, the Court of Appeals noted that “[i]t is well

settled that there is no constitutional right to hybrid representation” and that the Court’s

local rules prohibit a defendant from representing himself pro se after appearance of

counsel. [Crim. Doc. 124]. As the Sixth Circuit has said, “absent highly exceptional

circumstances,” “a § 2255 motion may not be employed to relitigate an issue that was

already raised and considered on direct appeal.” Jones v. United States, 178 F.3d 790, 796

(6th Cir. 1999). Accordingly, Petitioner’s Claim 8 will be DENIED as previously litigated.

c. Claim 6

Petitioner’s claim of prosecutorial misconduct, Claim 6, revolves around an alleged

Brady violation. Petitioner alleges that the United States withheld exculpatory evidence

from the jury, but he does not state what exculpatory evidence was withheld. “To prevail

on his prosecutorial misconduct claims, [Petitioner] must show that the prosecutor's

conduct so infected the trial with unfairness as to make the resulting conviction a denial of

due process.” Jones v. United States, No. 17-5404, 2017 WL 8791898 at *5 (6th Cir. Nov.

1, 2017) (internal quotation marks and citations omitted). Petitioner’s prosecutorial

misconduct claims are constructed on alleged Brady violations. To prevail on

a Brady claim, Petitioner must show: (1) the existence of exculpatory or impeaching

evidence favorable to the accused; (2) the suppression of the evidence by the prosecution;

and (3) ensuing prejudice to the defense. Strickler v. Greene, 527 U.S. 263, 281–82 (1999).

Here, Petitioner has not provided any exculpatory or impeaching evidence favorable

to him, let alone any suppressed by the prosecution. Neither does the record suggest that

any exculpatory evidence was excluded from the jury. There is simply nothing in the record

supporting Petitioner's claim of a Brady violation or any prejudice that resulted from any

identified Brady violation. Accordingly, Petitioner’s prosecutorial misconduct claim,

Claim 6, will be DENIED.

d. Claims 2-5 and 7

The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused

shall enjoy the right . . . to have the assistance of counsel for his defense.” U.S. Const.

amend. VI. A criminal defendant’s Sixth Amendment right to counsel necessarily implies

the right to “reasonably effective assistance” of counsel. Strickland v. Washington, 466

U.S. 668, 687 (1984). Under the Strickland standard for proving ineffective assistance of

counsel, a movant must show: (1) that counsel’s performance was deficient; and (2) that

the deficient performance prejudiced the defense. Id.

To prove deficient performance, the movant must show “that counsel made errors

so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by

the Sixth Amendment.” Id. The appropriate measure of attorney performance is

“reasonableness under prevailing professional norms.” Id. at 688. A movant asserting a

claim of ineffective assistance of counsel must “identify the acts or omissions of counsel

that are alleged not to have been the result of reasonable professional judgment.” Id. at 690.

The evaluation of the objective reasonableness of counsel’s performance must be made

“from counsel’s perspective at the time of the alleged error and in light of all the

circumstances, and the standard of review is highly deferential.” Kimmelman v. Morrison,

477 U.S. 365, 381 (1986). It is strongly presumed that counsel’s conduct was within the

wide range of reasonable professional assistance. Strickland, 466 U.S. at 690.

The prejudice prong “requires showing that counsel’s errors were so serious as to

deprive the defendant of a fair trial, a trial whose result is unreliable.” Id. at 687. The

movant must demonstrate “a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different[.]” Id. at 703. Counsel is

constitutionally ineffective only if a performance below professional standards caused the

defendant to lose what he “otherwise would probably have won.” United States v. Morrow,

977 F.2d 222, 229 (6th Cir. 1992).

1. Claim 2

Petitioner first faults counsel for failing to follow up on a “cruel and unusual

punishment hearing” scheduled for September 24, 2018. The Government contends that

Petitioner is possibly referring to a detention hearing that Petitioner waived. See [Crim.

Doc 10]. Petitioner offers no factual support for this claim, nor does he explain how his

attorney was ineffective or how he was prejudiced by any alleged ineffectiveness. As this

claim is conclusory and without factual support, the Court can reject this contention as

insufficient to sustain the motion. See Ushery v. United States, No. 20-5292, 2020 U.S.

App. LEXIS 21840, at *3–4 (6th Cir. July 14, 2020). If Petitioner was referring to a

detention hearing, as stated above, Petitioner signed a waiver, waiving his right to a

detention hearing. [Crim. Doc. 10]. As Petitioner was the one who decided to waive the

detention hearing, counsel cannot be faulted for Petitioner’s decisions. Accordingly,

Petitioner has not met his burden of proof as to Claim 2, and it will be DENIED.

2. Claims 3 and 4

Petitioner next faults counsel for failing to file a motion to dismiss and a motion to

suppress based on alleged Fourth Amendment violations. Petitioner’s arguments fail at

Petitioner’s second step. He has not shown prejudice as he has not shown that he would

have succeeded on a motion to suppress or a motion to dismiss. Petitioner has not shown

that there was a Fourth Amendment violation which would warrant suppression of

evidence. Mapes v. Coyle, 171 F.3d 408, 413 (6th Cir. 1999) (“[c]ounsel could not be

constitutionally ineffective for failing to raise . . . meritless arguments.”); see also Brown

v. McKee, 231 F. App’x 469, 475 (6th Cir, 2007) (“failure to bring a meritless suppression

motion cannot constitute ineffective assistance.”). Even if the warrant for Petitioner’s arrest

was defective, the officers certainly had probable cause for an arrest based on the facts and

circumstances the officers knew at the time. United States v. Price, 841 F.3d 703, 706 (6th

Cir. 2016); see also [Crim. Doc. 87; pp. 94-102]. Accordingly, Claims 3 and 4 will be

DENIED as Petitioner has not established prejudice.

3. Claim 5

Petitioner also faults counsel for failing to review discovery and Brady material with

him. Petitioner does not specify what evidence was withheld from him, nor does he state

how the evidence would have affected the outcome of his case. As this claim is conclusory

and without factual support, the Court can reject this contention as insufficient to sustain

the motion. See Ushery, No. 20-5292, 2020 U.S. App. LEXIS 21840, at *3–4. Further,

Petitioner’s claim is contradicted by the record and not credited. Blackledge v. Allison, 431

U.S. 63, 74 (1977). Petitioner stated in a pro se motion in his underlying criminal case that

his attorney visited him in jail and handed him a discovery packet. See [Crim. Doc. 34, p.

2]. Accordingly, Claim 5 will be DENIED as Petitioner has not provided sufficient factual

support and this claim is contradicted by the record.

4. Claim 7

Lastly, Petitioner faults counsel for allowing the Government to change and

fabricate witness statements and evidence. Petitioner points to inconsistent testimony

involving who cut duct tape off the victim. [Doc. 1; Crim. Doc. 130]. First, the Court notes

that the jury is responsible for determining witness credibility, not the judge on collateral

review. United States v. Castano, 906 F.3d 458, 465 (6th Cir. 2018). Second, Petitioner has

not stated what his attorney should have done differently, nor has he shown that his attorney

acted unreasonably based on prevailing professional norms. Finally, Petitioner has not

established prejudice as he has offered no evidence that who cut the duct tape influenced

his conviction or sentence. Accordingly, Petitioner’s Claim 7 will be DENIED as he has

not established ineffective assistance of counsel.

IV. CONCLUSION

For the reasons above, Petitioner’s motion for counsel [Doc. 2] will be DENIED

and his § 2255 motion [Doc. 1; Crim. Doc. 130] will be DENIED and DISMISSED.

V. CERTIFICATE OF APPEALABILITY

Under 28 U.S.C. § 2253(c)(2), the Court must determine whether a certificate of

appealability should be granted. A certificate should issue if a petitioner has demonstrated

a “substantial showing of a denial of a constitutional right.” Id. The district court must

“engage in a reasoned assessment of each claim” to determine whether a certificate is

warranted. Murphy v. Ohio, 263 F.3d 466, 467 (6th Cir. 2001). Each issue must be

considered under the standards set forth by the Supreme Court in Slack v. McDaniel, 529

U.S. 473 (2000). Id.

A petitioner whose claims have been rejected on the merits satisfies the

requirements of § 2253(c) by showing that jurists of reason would find the assessment of

the claims debatable or wrong. Slack, 529 U.S. at 484. Having examined Petitioner’s claims

under the Slack standard, the Court finds that reasonable jurists could not find that the

dismissal of those claims was debatable or wrong. Therefore, the Court will DENY

issuance of a certificate of appealability.

A separate judgment will enter.

IT IS SO ORDERED.

ENTER:

s/ Leon Jordan

United States District Judge