REPORT AND RECOMMENDATIONS
MICHAEL R. MERZ, Magistrate Judge.
This criminal case is before the Court on Defendant Scott's filing of a Motion to Vacate under 28 U.S.C. § 2255 (ECF No. 169). District Judge Dlott has referred the § 2255 proceedings to the undersigned (ECF No. 170).
Rule 4(b) of the Rules Governing § 2255 Proceedings which provides:
In conducting the initial review, the Magistrate Judge noted the following language in the Plea Agreement:
ECF No. 108, PageID 281. Mr. Scott had indicated his intention to file a memorandum in support of his § 2255 Motion and was ordered to address in that memorandum the question why the Motion was not barred by this language in the Plea Agreement. Mr. Scott has now filed the promised memorandum.
In the original Motion as filed, Mr. Scott pleaded the following grounds for relief:
(Motion, ECF No. 169, PageID 470).
In his Memorandum, Scott seeks to avoid the collateral attack waiver in the Plea Agreement by recasting his Motion as claiming ineffective assistance of trial counsel for failure to advise him of the relevant law which, he says, makes his prior convictions ineligible to be predicate offenses under 18 U.S.C. § 924(c). The Court will treat the original § 2255 Motion as amended by the Memorandum. On its face ¶ 10 of the Plea Agreement permits collateral attacks on a judgment on the basis of ineffective assistance of trial counsel. Therefore the Magistrate Judge will proceed to analyze the current proceedings as raising one claim of ineffective assistance of trial counsel.
Richard Scott was indicted by the grand jury for this District on November 19, 2014, for possessing firearms, having previously been convicted of a felony in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 2 (Indictment, ECF No. 17, Count 4, PageID 60). The grand jury returned a Superseding Indictment on May 20, 2015, that charged Scott with armed bank robbery in violation of 18 U.S.C. § 2113(a) and (d) and § 2 (Count 1); interstate travel with intent to commit carjacking in violation of 18 U.S.C. § 1952(a)(2) and § 2 (Count 2); using and carrying a firearm in connection with a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii) and § 2 (Count 3); interference with commerce by robbery in violation of 18 U.S.C. §§ 1951 and 2 (Count 4); and a second violation of the Hobbs Act (Count 5)(Superseding Indictment, ECF No. 42).
On April 11, 2016, Scott entered into a Plea Agreement with the United States under Fed. R. Crim. P. 11(c)(1)(C) under which he would plead guilty to Counts 1, 3, 4, and 5 and maintain his prior plea of guilty to being a felon in possession of a firearm as charged in the original indictment (ECF No. 108). The parties agreed that a sentence of 144 months was appropriate for all the charges. Id. at ¶ 5, PageID 279. Scott understood that if the Plea Agreement and his guilty plea were accepted, he would receive a sentence of 144 months. Id. at ¶ 13. Scott represented that he was "fully satisfied with his attorney's representation." Id. at PageID 287.
Judge Dlott engaged in the required Rule 11 plea colloquy with Scott on the day the Plea Agreement was filed (Minute Entry, ECF No. 107). The case was referred to the Probation Department for preparation of a Presentence Investigation Report ("PSR"). Having reviewed that report, Judge Dlott sentenced Scott as agreed (ECF No. 150). Scott took no appeal, but filed the instant § 2255 proceedings within one year of the judgment.
Scott argues he was misadvised to accept the Plea Agreement because "there were cases which were relevant and soley [sic] rendered his crimes non-violent." (Memorandum, ECF No. 172, PageID 478). He relies on Dimaya v. Lynch, 137 S.Ct. 31, 195 L. Ed. 2d 902 (Sept. 29, 2016), in which the Supreme Court granted certiorari to review a decision of the Ninth Circuit. In the decision to be reviewed, Dimaya v. Lynch, 803 F.3d 1110 (9
Scott also cites United States v. Gonzalez-Ruiz, 794 F.3d 832 (7
Scott argues that various courts have held that a Hobbs Act violation does not categorically qualify as a violent offense and that a conviction for a Hobbs Act violation may therefore not count as a predicate offense. That is an appropriate point to make if at some time in the future Mr. Scott is charged with being an armed career criminal and the prosecutor in that case seeks to rely on his Hobbs Act conviction here as a predicate offense. But the fact that Hobbs Act violations are not categorically violent offenses does not affect the sentence to be imposed for a Hobbs Act violation when it is first committed.
Based on his offenses of conviction, Mr. Scott faced a maximum sentence of 25 years on Count 1 (armed bank robbery), ten years on Count 4 of the original Indictment (being a felon in possession of a firearm), twenty years each on the two Hobbs Act violations (Counts 4 and 5), and a mandatory seven year minimum sentence on Count 3 (discharge of a firearm in connection with the armed bank robbery). The Guideline Sentencing range for all the other counts taken together was 121 to 151 months, but the 84 month sentence for the firearm discharge was required to be served consecutively to any other sentence. The sentence actually imposed was half of the bottom of the Guideline range (60 months) plus the mandatory minimum firearm sentence.
The governing standard for ineffective assistance of counsel is found in Strickland v. Washington, 466 U.S. 668 (1984):
466 U.S. at 687. In other words, to establish ineffective assistance, a defendant must show both deficient performance and prejudice. Berghuis v. Thompkins, 560 U.S. 370, 389 (2010), citing Knowles v. Mirzayance, 556 U.S.111 (2009).
With respect to the first prong of the Strickland test, the Supreme Court has commanded:
466 U.S. at 689.
As to the second prong, the Supreme Court held:
466 U.S. at 694. See also Darden v. Wainwright, 477 U.S. 168 (1986); Wong v. Money, 142 F.3d 313, 319 (6
Mr. Scott's attorney did not provide ineffective assistance of trial counsel in this case because it is not deficient performance to fail to advise a pleading defendant of case law which has no bearing on this case.
Based on the foregoing analysis, it is respectfully recommended that Scott's 2255 Motion, as amended to allege ineffective assistance of trial counsel, be DISMISSED WITH PREJUDICE. Because reasonable jurists would not disagree with this conclusion, Petitioner should be denied a certificate of appealability and the Court should certify to the Sixth Circuit that any appeal would be objectively frivolous and therefore should not be permitted to proceed in forma pauperis.
NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the proposed findings and recommendations within fourteen days after being served with this Report and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen days because this Report is being served by mail. .Such objections shall specify the portions of the Report objected to and shall be accompanied by a memorandum of law in support of the objections. If the Report and Recommendations are based in whole or in part upon matters occurring of record at an oral hearing, the objecting party shall promptly arrange for the transcription of the record, or such portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the assigned District Judge otherwise directs. A party may respond to another party's objections within fourteen days after being served with a copy thereof. Failure to make objections in accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).