Ewing v. United States

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

v. Civ. 2:24-cv-02490-SHM

Crim. 2:21-cr-20198-JPM

JEROME EWING,

Defendant.

ORDER DENYING MOTION TO VACATE SENTENCE

Before the Court is Defendant Jerome Ewing’s Pro Se Motion

to Vacate, Set Aside, or Correct Sentence (the “Motion”), filed

on July 2, 2024. (ECF No. 1). Defendant seeks relief under 28

U.S.C. § 2255, alleging a violation of his Sixth Amendment right

to effective assistance of counsel. Id. The government has not

filed a response. For the reasons below, the Motion is DENIED.

I. BACKGROUND

On November 22, 2022, Defendant pled guilty to three counts

of being a felon in possession of a firearm in violation of 18

U.S.C. § 922(g)(1), and five counts of knowing possession of a

controlled substance with the intent to distribute in violation

of 21 U.S.C. § 841(a)(1). (Crim. Dkt. ECF No. 114). On February

24, 2023, the Court sentenced Defendant to 151 months in prison,

followed by three years of supervised release. (Crim. Dkt. ECF

No. 122). Defendant did not appeal his sentence.

On July 2, 2024, Defendant filed this Motion under § 2255

seeking to vacate his sentence. (ECF No. 1). Defendant alleges

that the federal public defender’s representation was so

deficient that it violated his Sixth Amendment right to effective

assistance of counsel. Id. Specifically, Defendant alleges the

following deficiencies:

(1) Counsel allegedly “failed to investigate [the source

of] the firearm,” the circumstances of Defendant’s

“warrantless arrest,” and Defendant’s alleged “actual

innocence” of firearm possession. Id.

(2) Counsel allegedly “fail[ed] to appeal the district

court’s denial of [Defendant’s] motion to suppress [the

government’s evidence],” which was allegedly

unconstitutionally obtained through a warrantless

search. Id.

(3) Counsel allegedly “failed to appeal the district court’s

enhanced [sentence]” by improperly categorizing

Defendant as a “career criminal” in violation of the

Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e).

Id.

(4) Counsel allegedly “encourage[ed] [Defendant] to enter a

‘blindfold plea’.” Id.

II. STANDARD OF REVIEW

Once a district court imposes a sentence, it may not modify

that sentence except in limited circumstances. See United States

v. Hunter, 12 F.4th 555, 561 (6th Cir. 2021); see also United

States v. Alexander, 951 F.3d 706, 707 (6th Cir. 2019) (“[The

sentencing] court … does not have the authority to change or

modify the sentence unless such authority is expressly granted

by statute.”). One exception is 28 U.S.C. § 2255, which permits

a prisoner to move the sentencing court to vacate, correct, or

set aside a sentence, if:

“The sentence was imposed in violation of the

Constitution or laws of the United States, or [if]

the court was without jurisdiction to impose the

sentence, or [if] the sentence was in excess of the

maximum authorized by law or is otherwise subject

to collateral attack.”

28 U.S.C. § 2255. “The movant has the burden of establishing any

claim asserted in the petition.” United States v. Goodrum, 584

F.Supp.2d 1026, 1030 (N.D. Ohio 2005) (citing Bowers v. Battles,

568 F.2d 1, 5 (6th Cir. 1977)).

Where the movant alleges a constitutional error under §

2255, “the record must reflect a constitutional error of such

magnitude that it had a substantial and injurious effect or

influence on the proceedings.” Goodrum, 584 F.Supp.2d at 1030

(citing Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993)); see

also Watson v. United States, 165 F.3d 486, 488 (6th Cir. 1999).

For non-constitutional errors, the movant must show a

“fundamental defect in the proceedings which necessarily results

in a complete miscarriage of justice or an egregious error

violative of due process.” Riggs v. United States, 209 F.3d 828,

831 (6th Cir. 2000) (quoting Gall v. United States, 21 F.3d 107,

109 (6th Cir. 1994)); see also United States v. Ferguson, 918

F.2d 627, 630 (6th Cir. 1990).

“Pro se pleadings are to be held ‘to less stringent

standards than formal pleadings drafted by lawyers,’ and should

therefore be liberally construed.” Williams v. Curtin, 631 F.3d

380, 383 (6th Cir. 2011) (quoting Martin v. Overton, 391 F.3d

710, 712 (6th Cir. 2004)). Pro se litigants, however, are not

exempt from the requirements of the Federal Rules of Civil

Procedure. See Brown v. Matauszak, 415 Fed.Appx. 608, 613 (6th

Cir. 2011); Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989).

“While Courts are properly charged with protecting the rights of

all who come before it, that responsibility does not encompass

advising litigants as to what legal theories they should pursue.”

Young Bok Song v. Gipson, 423 Fed.Appx. 506, 509 (6th Cir. 2011);

accord Pliler v. Ford, 542 U.S. 225, 231 (2004) (“District judges

have no obligation to act as counsel or paralegal to pro se

litigants.”).

III. ANALYSIS

Under the Sixth Amendment, a defendant is entitled only to

reasonably effective counsel. See Strickland v. Washington, 466

U.S. 668, 687 (1984) (“[T]he proper standard for attorney

performance is that of reasonably effective assistance.”). The

Sixth Circuit defines effective counsel as “not errorless

counsel, and not counsel judged ineffective by hindsight, but

counsel reasonably likely to render and rendering reasonably

effective assistance.” Beasley v. United States, 491 F.2d 687,

694 (6th Cir. 1974); accord Trapnell v. United States, 725 F.2d

149, 151 (2d Cir. 1983); Caraway v. Beto, 421 F.2d 636, 637

(5th Cir. 1970). Thus, “when a convicted defendant complains of

the ineffectiveness of counsel’s assistance, the defendant must

show that counsel’s representation fell below an objective

standard of reasonableness.” Strickland, 466 U.S. at 687-88.

To obtain relief under § 2255 for ineffective assistance of

counsel, the movant must make two showings. First, the movant

must show that the attorney’s representation was deficient,

meaning that “counsel made errors so serious that counsel was

not functioning as the ‘counsel’ guaranteed by the Sixth

Amendment.” Id. at 687. Second, the movant must show that the

deficient representation was so prejudicial that it “deprive[d]

the defendant [of the right to] a fair trial, a trial whose

result was reliable.” Id. Failure to make either showing is fatal

to a § 2255 motion claiming ineffective assistance of counsel.

See id.

Defendant has failed to meet either requirement. Although

Defendant has alleged multiple deficiencies by the federal public

defender, none is supported by facts. His only relevant factual

assertion is that counsel “encourage[ed] [Defendant] to enter

into a ‘blindfold’ plea” with the government, which allegedly

deprived him of his right to a fair trial. (ECF No. 1). Even

assuming this alleged deficiency occurred, Defendant cannot

establish that his right to a fair trial was prejudiced. “To

establish prejudice,” Defendant “must show that there is a

reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.”

Williams v. Taylor, 529 U.S. 362, 390-91 (2000); see also

Strickland, 466 U.S. at 694 (“A reasonable probability is a

probability sufficient to determine confidence in the

outcome.”). Defendant has not met his burden.

Even if all of Defendant’s allegations were taken as true,

they do not demonstrate a deprivation of his Sixth Amendment

rights. Defendant argues that the federal public defender’s

performance was deficient for failing to thoroughly investigate

every plausible line of offense. (ECF No. 1). Counsel is not

required to investigate all potential defenses to provide

effective assistance. See Strickland, 466 U.S. at 681 (“[W]hen

counsel’s assumptions are reasonable given the totality of the

circumstances and when counsel’s strategy represents a

reasonable choice based upon those assumptions, counsel need not

investigate lines of defense that he has chosen not to employ at

trial.”). “Criminal defense lawyers [are] given broad discretion

in making decisions” about litigation strategy. Miller v.

Francis, 269 F.3d 609, 620 (6th Cir. 2001). “A strategic

decision,” even if imprudent in hindsight, “cannot be the basis

for a claim of ineffective assistance of counsel[.]” Miller v.

Webb, 385 F.3d 666, 672 (6th Cir. 2004). On this record, counsel

functioned effectively as the “counsel” guaranteed by the Sixth

Amendment.

IV. CONCLUSION

Defendant is not entitled to relief under § 2255 because he

has failed to meet his burden of demonstrating ineffective

assistance of counsel. Defendant’s Motion to Vacate, Set Aside,

or Correct Sentence is DENIED.

SO ORDERED this 20th day of February, 2025.

/s/ Samuel H. Mays, Jr.

SAMUEL H. MAYS, JR.

UNITED STATES DISTRICT JUDGE