The opinion
-IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TENNESSEE
AT GREENEVILLE
ALEX BLACKBURN, )
Petitioner )
)
v. ) No. 2:24-CV-52
)
)
UNITED STATES OF AMERICA, )
Respondent )
MEMORANDUM OPINION AND ORDER
This matter is before the Court on the “Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside,
or Correct Sentence by a Person in Federal Custody,” filed by Alex Blackburn (Petitioner),[Doc. 1],
and his motion for “either, a ruleing (sic) on his motion 2255 or a status conference.” [Doc. 9]. The
United States has responded in opposition to the §2255 motion. [Doc. 6]. The motion for a ruling
on his § 2255 motion is GRANTED. A review of the files and records in the case establishes that
no evidentiary hearing is necessary, the motion lacks merit, and the § 2255 motion will be DENIED.
I. Procedural History
Petitioner, along with six others, was charged in a twenty-five count superseding indictment
returned by a federal grand jury on January 19, 2022. [Doc. 20 in No. 2:21-CR-126]. He
appeared before a Magistrate Judge for an initial appearance and arraignment on February 10,
2022. [Doc. 47 at Id.]. Petitioner signed a plea agreement with the United States on August 17,
2022. [Doc. 95 at Id.]. In the plea agreement, petitioner agreed to plead guilty to Count One
charging him with conspiracy to distribute 50 grams or more of methamphetamine in violation of
21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(A) and agreed to a lengthy stipulation of facts “[i]n
support of the defendant’s guilty plea. . . which satisfy the offense elements.” [Doc. 95, ⁋ 4, at
Id.]. Among other things, Petitioner admitted that a co-conspirator arrested in possession of
approximately 2.5 kilograms of methamphetamine, approximately two kilograms of black tar
heroin, and 457 grams of counterfeit oxycodone pills suspected to contain fentanyl, identified
Petitioner as the individual who distributed methamphetamine for him and obtained kilogram
quantities of methamphetamine two to three times per week for a couple of months. Another
cooperating source identified Petitioner as a kilogram quantity distributor of methamphetamine.
According to the cooperating source, Petitioner made numerous trips to obtain
methamphetamine from Atlanta, Georgia and was obtaining counterfeit prescription
medications that contained fentanyl. The source said Petitioner obtained two kilograms each
time he re-supplied. [Doc.95, ⁋ 4, at id.].
On November 4, 2021, Petitioner was confronted by Lexington, North Carolina police
officers who were investigating shoplifting at a local hardware store. Upon a search of the vehicle,
officers located a loaded Kahr, 9mm handgun, a Crown Royal bag containing a crystal substance
believed to be methamphetamine, fifteen grams of suspected black tar heroin, and 1034 pills
believed to be oxycodone. Officers also found multiple boxes of ammunition and a flamethrower.
[Id.].
On November 29, 2021, a confidential source made a statement regarding firearms that
Petitioner possessed. He/she told officers that Petitioner possessed over fifty firearms, some fully
automatic. The investigation ultimately led to the seizure of two large gun safes from Petitioner’s
uncle. After obtaining a search warrant, officers recovered forty-four firearms. Petitioner agreed
that he conspired with others to distribute 50 grams or more of actual methamphetamine. [Id.].
Petitioner appeared before the Magistrate Judge on August 25, 2022, for a Rule 11 colloquy
and entry of the guilty plea, [Doc. 112 at Id.]. The Magistrate Judge recommended that the Court
accept Petitioner’s guilty plea to Count One of the superseding indictment. [Doc. 118 at Id.].
Neither party objected to the Report and Recommendation and it was accepted by the Court on
September 14, 2022, and Petitioner was adjudged guilty of conspiracy to distribute 50 grams or
more of methamphetamine. [Doc. 138 at Id.]. A presentence investigation report (“PSR”) was
disclosed on February 6, 2023, [Doc. 198 at Id.], and Petitioner filed no objections to the PSR.
[Docs. 205, 206 at Id.].
In the PSR, the base offense level for the stipulated quantity of at least 1.5 kilograms but
less than 4.5 kilograms of actual methamphetamine, (see PSR., ⁋ 62), was 36. Two levels were
added to the base offense level for obstruction of justice pursuant to USSG § 3C1.1 and another
two levels were added because a dangerous weapon was possessed under USSG § 2D1.1(b)(1). [Id.
at ⁋⁋⁋ 70, 71, 74]. After the three-level reduction for acceptance of responsibility under USSG
§§ 3E1.1(a) and(b), the total offense level became 37. With Petitioner’s criminal history category
of IV, Petitioner’s advisory guidelines range was 292-365 months of imprisonment. [Id. at ⁋
120]. After overruling Petitioner’s objection to the obstruction enhancement, the PSR was adopted
by the Court and Petitioner was sentenced to 300 months of imprisonment. [Docs. 271, 283, 287 in
No. 2:22-CR-126]. Petitioner filed a notice of appeal, [Doc. 286 at Id.]. The appeal was dismissed
by the Circuit Court of Appeals for the Sixth Circuit on August 24, 2023, on Petitioner’s motion
to voluntarily dismiss the appeal pursuant to Fed. R. Rules of App. Pro. 42(b), [Doc. 307 at Id.].
II. Standard of Review
Under § 2255, “a prisoner in custody under sentence of a federal court claiming the right to be
released … may move the court which imposed the sentence to vacate, set aside, or correct the
sentence.” (28 U.S.C. § 2255(a)). A court must vacate and set aside a sentence if it concludes that
the “judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by
law or otherwise open to collateral attack, or that there has been such a denial or infringement of the
constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack.” Id. §
2255(b). The legal standard that governs collateral review under § 2255 as opposed to direct review
on appeal is significantly higher. United States v. Frady, 456 U.S. 152, 162–66 (1982); see Hampton
v. United States, 191 F.3d 695, 698 (6th Cir. 1999).
A prisoner seeking relief under 28 U.S.C. § 2255 must show as a basis for relief: (1) an error
of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of
fact or law that was so fundamental as to render the entire proceeding invalid. Pough v. United
States, 442 F.3d 959, 964 (6th Cir. 2006). To obtain relief for a denial or infringement of a
constitutional right, a petitioner must establish an “error of constitutional magnitude which had a
substantial and injurious effect or influence on the proceedings”. Watson v. United States, 165 F.3d
486, 488 (6th Cir. 1999) (citing Brecht v. Abrahamson, 507 U.S. 619, 637–38 (1993)). To obtain
relief for a non-constitutional claim, a petitioner must establish that a fundamental defect in the
proceeding resulted in a complete miscarriage of justice or an egregious error that deprived him of
the “rudimentary demands of fair procedure”. Reed v. Farley, 512 U.S. 339, 354 (1994).
A petitioner has the burden of proving that “an error has occurred that is sufficiently
fundamental to come within” one of the three “narrow limits” for § 2255 relief. United States v.
Addonizio, 442 U.S. 178, 185 (1979); see Pough, 442 F.3d at 964. Conclusory allegations alone,
without supporting factual averments, are generally insufficient to demonstrate a valid claim under §
2255. Jefferson v. United States, 730 F.3d 537, 547 (6th Cir. 2013).
III. Discussion
Petitioner’s motion to vacate, set aside or correct sentence, [Doc. 1], was timely filed on
April 8, 2024. No memorandum in support was filed by Petitioner. The United States responded in
opposition, [Doc. 6]. Petitioner has not filed a reply, although he requested and received an
extension of time through August 31, 2024, to file a reply, [Docs. 7, 8]. More than six months
have passed, and no reply has been filed and the § 2255 motion is RIPE FOR DISPOSITION.
For the reasons which follow, the motion is DENIED.
The Petitioner raises three general grounds for relief based on claims of ineffective
assistance of counsel in his motion. First, he claims counsel was ineffective for refusing to
challenge the warrantless search and seizure of his automobile without making any investigation
into facts surrounding his arrest. Second, he claims counsel was ineffective during plea
negotiations and sentencing because counsel gave advice without performing legal research on
the merits of a defense and did not seek credit for time served. Third, he claims counsel was
ineffective for failing to challenge the quantity of the methamphetamine or its purity. More
specifically, Petitioner alleges that counsel should have employed an independent chemist to test
for purity. The Court will address each of petitioner’s claims in the order raised.
A. Warrantless Search and Seizure
As noted above, Petitioner claims as ground one that he was denied constitutionally
effective counsel prior to pleading guilty. As “supporting facts,” Petitioner offers the following:
Defense counsel provided ineffective assistance by refusing to challenge the
warrantless searches and seizures conducted by law enforcement officers, which
unlawfully seized evidence resulted in the arrest of petitioner. That, when petitioner
questioned defense counsel about filing a motion to suppress the evidence, it was
counsel’s response that it would be useless because a suppression motion would not
succeed. No reason was given by defense counsel for making that conclusion. To the
best of this petitioner’s knowledge, defense counsel conducted no investigation into
the facts surrounding the arrest, or the facts involved used by prosecutors to obtain
the federal indictment.
[Doc. 1 at 4].
The United States responds, first of all, that once a criminal defendant admits in open court
that he is guilty, he may not thereafter raise those claims. Furthermore, the defendant, when raising
claims of ineffective assistance of counsel based on failure to investigate or adequately investigate
must allege with specificity what the investigation would have revealed, something Petitioner has
not done. Third, the government responds that, while defendant now faults counsel for failing to
seek to suppress evidence seized from the searches, he fails to identify any “unlawful” search or
seizure or that a motion to suppress would have been successful.
The United States is correct on all counts. The general rule is that once a defendant has
“solemnly admitted in open court that he is in fact guilty of the offense with which he is charged,
he may not thereafter raise independent claims relating to the [alleged] deprivation of constitutional
rights” before his guilty plea. Tollett v. Henderson, 411 U.S. 258, 266-67 (1973). That is precisely
the situation here. Petitioner admitted under oath in open court that he is guilty of conspiracy to
distribute 50 grams or more of methamphetamine, that he understood the charge against him, and
that he was pleading guilty because he “is in fact guilty.” [Doc. 95 in No. 2:21cr126, ⁋⁋ 3,5](Tr. of
COP hrg., Doc. 305, at 23, 17). Not only that, Petitioner was specifically asked, before he
entered his plea, if he was satisfied with the way his lawyer had represented him and he
unequivocally answered “yes,” voicing no concern about the research or investigation done by
counsel or the failure to file any suppression motion. Non-jurisdictional defects are waived by the
entry of a guilty plea, United States v. Stiger,20 F. App’x 307, 309 (6th Cir. 2001).
Although it is unnecessary to do so, the Court will also address the remaining points raised
by the government. A defendant, like the Petitioner here, who raises claims of ineffective assistance
of counsel based on failure to investigate properly must “allege with specificity what the
investigation would have revealed and how it would have altered the outcome.” United States v.
Robson, 307 F. App’x 907, 911 (6th Cir. 2009). Petitioner has made no effort to do that here. He
identifies no “facts” to be investigated, identifies no witnesses who should have been interviewed
but were not, and importantly, makes no effort to show how the outcome of his case might have
been altered.
Petitioner’s effort to fault counsel for not seeking to suppress the evidence obtained during the
searches fares no better. To prevail on this claim, petitioner must identify a specific search that was
unlawful or that any effort to suppress the evidence seized would have been successful. As the United
States points out, the search of the co-conspirator’s phone was done with the phone owner’s consent,
Petitioner’s vehicle was searched pursuant to the automobile exception to the warrant requirement,
Petitioner’s girlfriend’s home was searched pursuant to a search warrant, and Petitioner’s gun
safes were removed from his uncle’s home with consent and then searched pursuant to a warrant. As
noted above, Petitioner did not file a reply even after being give an extension of time to do so by the
Court. In short, Petitioner has come nowhere close to meeting his burden here.
Counsel’s failure to file a meritless suppression motion “cannot constitute ineffective
assistance of counsel.” Brown v. McKee, 231 F. App’x 469, 475 (6th Cir. 2007) (quoting United
States v. Tisdale, 195 F. 3d 70, 73-74 (2d Cir 1999)). Petitioner specifically acknowledged that he
had conversations with counsel about suppression issues and admits that counsel determined such
a course would have been “useless” and “would not succeed.” [Doc. 1 at 4]. Petitioner has offered
nothing more than conclusory and speculative allegations, unsupported by any facts, to overcome
the presumption that counsel’s representation was effective and “falls within the wide range of
reasonable professional assistance.” Strickland, 466 U.S. at 689.
B. Ineffective Assistance During Plea Negotiations and Sentencing
As already noted, Petitioner claims as Ground Two that he “received ineffective assistance
of counsel during the sentencing hearing and plea negotiations in obtaining a plea agreement”. As
supporting facts, he claims:
Defense counsel, without investigating the facts, or performing rudimentary legal
research, recommended pleading guilty because petitioner would receive a
sentence of life imprisonment if a jury trial were held. Counsel’s aforesaid advice
was given without performing any legal research on the merits of a defense, or
becoming knowledgeable about potential sentences for the offense. Although
petitioner was already serving a term of imprisonment in the State of Tennessee for
a state crime, and had been arrested in the State of North Carolina, and incarcerated
for two months without charges being filed, defense counsel did seek to obtain credit
against the federal offense for those periods of incarceration.
[Doc. 1 at 5].
Petitioner claims counsel’s recommendation that he plead guilty pursuant to a plea
agreement was ineffective because it was given “without performing any legal research on the
merits of a defense, or becoming knowledgeable about potential sentences for the offense.”
[Id.]. This claim suffers, first of all, from the same defects noted as to Ground One. The
allegations are speculative and conclusory, without any supporting facts, to overcome the
presumption that counsel’s performance was effective. He does not identify the “rudimentary
legal research” that he claims should have been done or how it would have altered the outcome of
Petitioner’s case. He does not identify any meritorious defense that might have been asserted.
Petitioner again fail to meet his burden by a wide margin.
Furthermore, the Court agrees with the United States that the decision to plead guilty rests,
first and foremost, with the defendant, not his lawyer. Smith v. United States, 348 F.3d 345 (6th Cir.
2003). Counsel clearly fulfilled his role here. He made a recommendation; one Petitioner was free
to accept or reject. Petitioner makes no claim that he was forced, or improperly induced, to enter
into the plea agreement and ultimately to plead guilty by anyone, especially his lawyer. Indeed, he
could not plausibly make such a claim in light of his own statements in his plea agreement, i.e. that
he was pleading guilty because he is in fact guilty, [Doc. 95 in No.2:21-CR-126 at 10], and that he
“has read the indictment, discussed the charges and possible defenses with defense counsel, and
understands the crime(s) charged, [id. at ⁋ 3], and his sworn statements at his change of plea hearing
that he understood the terms of the plea agreement, that no promises or threats had been made by
anyone to induce him to plead guilty, and that he was pleading guilty of his own free will. [Tr., Doc.
305 at 8, 11,16].
It is unclear whether Petitioner now claims that counsel erroneously advised him “that he
would receive a sentence of life imprisonment if a jury trial were held.” Even if he does make that
claim, it appears that counsel’s advice was essentially correct; his advisory guidelines range after a
trial and guilty verdict would have been 360 months to life imprisonment. In any event, Petitioner
does not argue that he wanted a jury trial nor has he offered any argument that he had any
meritorious defense had he gone to trial.
Lastly, Petitioner faults defense counsel for failing “to seek to obtain credit against the
federal offense for . . . periods of incarceration” served on a state charge he was serving and/or a
North Carolina case where he served some pretrial time. Petitioner does not identify the state cases
specifically or provide any other details. But “the power to grant credits for time served lies solely
with the Attorney General and the Bureau of Prisons.” United States v. Crozier, 259 F.3d 503, 520
(6th Cir. 2001). The most the Court could have done is make a non-binding recommendation to the
Bureau of Prisons. The Court did, in fact order Blackburn’s federal sentence to be served
concurrently to his existing state sentence, something it appears the Bureau of Prisons has honored.
[See Soc. 6-1].
C. Ineffective Assistance re Quantity and Purity of Methamphetamine
Again, Petitioner finally alleges that he received ineffective assistance of counsel at
sentencing and faults counsel for not challenging the quantity and purity of the methamphetamine.
As “supporting facts,” Petitioner alleges the following:
Defense counsel failed to object to the Pre-Sentence Report’s unsupported
estimate of the quantity of methamphetamine that was attributed to the petitioner.
Neither did counsel challenge the purity of the methamphetamine. Rather than being
“actual’, or “ICE”, the methamphetamine was only a mixture, however, no
independent chemist was employed by defense counsel to test the methamphetamine
that petitioner was alleged to have possessed or distributed. Defense counsel merely
accepted the prosecutor’s position without challenging the quantity or purity level.
Thus, counsel abandoned his duty to advocate for the petitioner.
[Doc.1 at 7].
This claim is frivolous and a complete non-starter. In his plea agreement with the
government, Petitioner stipulated, pursuant to Rule 11(c)(1)(C), “that the defendant entered a
conspiracy to distribute and is accountable for a conservative quantity of at least 1.5
kilograms, but less than 4.5 kilograms of actual methamphetamine.” [Doc. 95 in No. 2:21cr126
at ⁋6(d)]. (emphasis added). Thus, Petitioner’s claim that the quantity used to establish the base
offense level in the PSR was an “unsupported estimate” and that the methamphetamine “was only
a mixture” are plainly contradicted by his own stipulation, one later affirmed under oath at his
change of plea hearing. [Tr. of COP Hrg., Doc. 305 @ 23]. He conveniently attempts to ignore his
own stipulation. And the stipulation was Petitioner’s, not counsel’s, as evidenced by Petitioner’s
sworn statements and the provisions of the plea agreement signed by Petitioner. Petitioner testified
under oath before the Magistrate Judge that he had carefully reviewed the stipulation and that it was
accurate. [Tr. of COP Hrg., id.]. Other than his bald claim made in the instant motion, without
facts to support it, Petitioners’ allegation that the methamphetamine was a “mixture,” not “ICE”
or “actual,” made long after his guilty plea is devoid of anything that would have alerted defense
counsel of Petitioner’s claim. Counsel was clearly entitled to rely on what Petitioner had agreed to
and his counsel was not ineffective in any way for relying on Petitioner’s stipulation.
IV. Certificate of Appealability
Lastly, the Court must determine whether to issue a certificate of appealability, which is
necessary for Mr. Blackburn to appeal its ruling. 28 U.S.C. § 2253(a), (c)(1)(B). The Court may
issue a certificate of appealability only when a petitioner “has made a substantial showing of
the denial of a constitutional right.” Id. § 2253(c)(2). To make this showing, Mr. Blackburn must
demonstrate that reasonable jurists would find the Court’s assessment of those claims “debatable
or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). The Court concludes that reasonable
jurists would not find that its dismissal of Mr. Blackburn’s claims as meritless and conclusory is
debatable or wrong. The Court therefore declines to issue a certificate of appealability to Mr.
Blackburn.
V. Conclusion
As the petitioner under § 2255, Mr. Blackburn fails to meet his burden of establishing that his
conviction and sentence are in violation of the Constitution, or that a fundamental defect resulted
in a complete miscarriage of justice or an egregious error. His motion under 28 U.S.C. § 2255 to
Vacate, Set Aside, or Correct a Sentence by a Person in Federal Custody [Doc. 1] is therefore
DENIED. The Court will enter an order consistent with this opinion.
ENTER:
s/J. RONNIE GREER
UNITED STATES DISTRICT JUDGE