Phifer v. United States

MEMORANDUM OF OPINION AND ORDER (RESOLVES DOCS. 79, 82, 83, AND 85)

JOHN R. ADAMS, UNITED STATES DISTRICT JUDGE

This matter is before the Court upon Jawaun Phifer's (“Phifer”) Amended Motion to Vacate, Set Aside, or Correct a Sentence pursuant to 28 U.S.C. § 2255 (the “Motion”). Doc. 79. The United States of America filed the Government's Response in Opposition to Defendant's Motion to Vacate, Set Aside or Correct Sentence Pursuant to 28 U.S.C. § 2255 (Doc. 82) and Phifer filed Petitioner's Reply to Government's Response in Opposition to Petitioner's Motion to Vacate, Set Aside or Correct Sentence Pursuant to 28 U.S.C. § 2255 (Doc. 83). The matter is now fully briefed and ready for disposition. For the reasons set forth herein, the Motion is DENIED.

I. PROCEDURAL BACKGROUND

A federal grand jury returned an indictment charging Phifer with (i) four counts of distribution of cocaine, a schedule II controlled substance, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C); (ii) possession with intent to distribute fentanyl, a schedule II controlled substance, and heroin, a schedule I controlled substance, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C); (iii) possession with intent to distribute cocaine, a schedule II controlled substance, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C); (iv) possession with intent to distribute cocaine base (crack

cocaine), a schedule II controlled substance, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(iii); (v) using and maintaining a drug premises, in violation of 21 U.S.C. §§ 856(a)(1) and (b); and (vi) felon in possession of a firearm, in violation of in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Doc. 1. Phifer pled guilty as to all counts. See Minutes of Proceedings, docket entry dated February 3, 2021.

On September 16, 2021, the Court classified Phifer as a Career Offender and sentenced him to 210 months' imprisonment. Doc. 59. Thereafter, Phifer filed the Notice of Appeal (Doc. 58) and the Sixth Circuit affirmed the Court's judgment. See United States v. Phifer, No. 21-3879, 2022 U.S. App. LEXIS 20959 (6th Cir. July 28, 2022).

Phifer then filed the instant Motion, wherein he argues that he was denied effective assistance of counsel when appellate counsel (i) did not raise trial counsel's ineffectiveness at sentencing [and that trial counsel was ineffective for failing to object to an improper calculation under the Sentencing Guidelines], (ii) did not argue that aggravated robbery does not qualify as a crime of violence under the Sentencing Guidelines, and (iii) did not argue that attempted assault does not qualify as a crime of violence under the Sentencing Guidelines. Doc. 79.

II. LEGAL STANDARD

A prisoner in custody that moves to vacate, set aside, or correct a sentence pursuant to 28 U.S.C. § 2255 must show that (i) the sentence was imposed in violation of the Constitution or laws of the United States, (ii) the court was without jurisdiction to impose such sentence, (iii) the sentence was in excess of the maximum authorized by law, or (iv) the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255(a). Phifer's claim of ineffective assistance of counsel falls in

the first category because he alleges that his constitutional right to the effective assistance of counsel was violated. Pough v. United States, 442 F.3d 959, 964 (6th Cir. 2006).

A motion made pursuant to 28 U.S.C. § 2255 is the appropriate vehicle for raising a claim of ineffective assistance of counsel. United States v. Daniel, 956 F.2d 540, 543 (6th Cir. 1992) (“Ineffective assistance of counsel claims are best brought by a defendant in a post-conviction proceeding under 28 U.S.C. § 2255 so that the parties can develop an adequate record on the issue.”) The test of counsel's effectiveness was set forth by the Supreme Court in Strickland v. Washington. The measure used is whether the representation fell below an objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). To succeed on their claim of ineffective assistance of counsel, the defendant must show both a deficient performance and resulting prejudice. Id. at 688. Counsel's performance is evaluated considering all circumstances, based on their perspective at the time. Snider v. United States, 908 F.3d 183, 192 (6th Cir. 2018) (citing Strickland, 466 U.S. at 689). The second part of the Strickland test - whether there was resulting prejudice - is more difficult. To succeed on this prong, a defendant must prove that there is “a reasonable probability that, but for counsel's unprofessional...