United States v. Blough

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UNITED STATES OF AMERICA, PLAINTIFF, v. PHILLIP BLOUGH, DEFENDANT.

No. 5:18-cr-34-13

United States District Court, N.D. Ohio, Eastern Division

November 14, 2022

MEMORANDUM OPINION

HONORABLE SARA LIOI UNITED STATES DISTRICT JUDGE

Before the Court is the motion of pro se defendant Phillip Blough (“Blough”) to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. (Doc. No 381.) Plaintiff United States of America (the “government”) opposes the motion. (Doc. No. 386.) For the reasons that follow, Blough's motion to vacate is denied.

I. Background

On January 17, 2018, an indictment was returned charging Blough and twelve others with conspiring to possess with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. (Doc. No. 10.) Blough was also charged with using a communications device to facilitate drug trafficking activity, in violation of 21 U.S.C. § 843(b); possessing with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C); and possessing firearms in furtherance of a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1)(A)(i). (Id.)

Blough proceeded to trial in November 2018, and was represented by Attorney Brian Pierce.^[1] (CJA 20 Appointment, 1/22/2018.) After a three-day jury trial, Blough was convicted on all counts. (See Doc. Nos. 238-243 (Jury Verdicts).) On February 20, 2019, the Court sentenced Blough to an aggregate term of imprisonment of 76 months. (Doc. No. 302 (Judgment).) Blough took a direct appeal, represented by new counsel. His appeal was limited to challenging the gun conviction, arguing that the Court's jury instruction on that charge was erroneous and that the evidence as to that count was insufficient. United States v. Blough, 832 Fed.Appx. 961 (6th Cir. 2020). In an October 26, 2020 decision, the Sixth Circuit rejected both arguments and affirmed the Court's judgment. Id. at 962.

On September 21, 2021, Blough filed the present motion to vacate. In his motion, he alleges in conclusory fashion that he received ineffective assistance from trial counsel. In particular, he claims that Attorney Pierce was ineffective by (1) not offering any “counter exhibits” at trial; (2) misleading him by advising it was not possible to plead guilty to the drug counts and go to trial on the gun count; (3) not fully reviewing discovery with him; and (4) not filing a motion to suppress. (Doc. No. 381, at 4.^[2]) The government opposes each asserted ground for relief and insists that Blough received effective assistance from counsel.

II. Standard of Review

A federal prisoner may attack the validity of his sentence by filing a motion to vacate, set aside, or correct the sentence under 28 U.S.C. § 2255 in the district court where he was sentenced. Section 2255 sets forth four grounds upon which a federal prisoner may state a claim for relief: “[1] the sentence was imposed in violation of the Constitution or laws of the United States, or [2] that the court was without jurisdiction to impose such sentence, or [3] that the sentence was in excess of the maximum authorized by law, or [4] [the sentence] is otherwise subject to collateral attack[.]” 28 U.S.C. § 2255(a).

To prevail under § 2255, “a petitioner must demonstrate the existence of an error of constitutional magnitude which had a substantial and injurious effect or influence on the guilty plea or the jury's verdict.” Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003) (citing Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993)). “Relief is warranted only where a petitioner has shown ‘a fundamental defect which inherently results in a complete miscarriage of justice.'” Id. (quoting Davis v. United States, 417 U.S. 333, 346, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974)).

The movant bears the burden of articulating sufficient facts to state a viable claim for relief under § 2255. McQueen v. United States, 58 Fed.Appx. 73, 76 (6th Cir. 2003) (per curiam). Vague and conclusory claims that are not substantiated by allegations of specific facts with some probability of verity are not enough to warrant relief. A § 2255 motion may be dismissed if it only makes conclusory statements without substantiating allegations of specific facts and fails to state a claim cognizable under § 2255. O'Malley v. United States, 285 F.2d 733, 735 (6th Cir. 1961); see Green v. Wingo, 454 F.2d 52, 53 (6th Cir. 1972).

When a factual dispute arises in a § 2255 proceeding, an evidentiary hearing is required “‘to determine the truth of the petitioner's claims.'” Valentine v. United States, 488 F.3d 325, 333 (6th Cir. 2007) (quoting Turner v. United States, 183 F.3d 474, 477 (6th Cir. 1999)). The burden borne by a § 2255 petitioner to obtain a hearing is not especially onerous. See Smith v. United States, 348 F.3d 545, 551 (6th Cir. 2003). However, a petitioner is not entitled to an evidentiary hearing if he has not alleged any facts that, if true, would entitle him to federal habeas relief. See McSwain v. Davis, 287 Fed.Appx. 450, 458 (6th Cir. 2008); Amr v. United States, 280 Fed.Appx. 480, 485 (6th Cir. 2008) (holding that an evidentiary hearing was “unnecessary” where there was “nothing in the record to indicate that [the petitioner] would be able to prove his allegations” at a hearing); see also Napier v. United States, No. 93-5412, 1993 WL 406795, at *2 (6th Cir. Oct. 8, 1993) (“To be entitled to a hearing, the prisoner must set forth detailed factual allegations which, if true, would entitle him to relief under § 2255.”) (citing, among authorities, Machibroda v. United States, 368 U.S. 487, 496, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962)); cf. Valentine, 488 F.3d at 334 (finding that the burden is met where the petitioner “offers more than a mere assertion . . . he presents a factual narrative of the events that is neither contradicted by the record nor ‘inherently incredible'”).

Moreover, a hearing is not necessary when a petitioner's claims “‘cannot be accepted as true because they are contradicted by the record, inherently incredible, or [are] conclusions rather than statements of fact.'” Id. (quoting Arrendondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999)). Where, as here, the judge considering the § 2255 motion also presided over the trial, the judge may rely on her recollections of the trial. Blanton v. United States, 94 F.3d 227, 235 (6th Cir. 1996).

The Court finds that an evidentiary hearing is not warranted in the present case. As set forth in detail below, Blough has failed to identify facts that, if true, would entitle him to relief under § 2255. Moreover, many of the arguments offered by Blough in support of the present motion are either contradicted by the record, or are adverted to in a perfunctory and conclusory manner, preventing further review by this Court.

III. Discussion

Blough grounds his claims in the Sixth Amendment right to effective assistance of counsel. “To prevail on an ineffective-assistance-of-counsel claim, [Blough] must satisfy the two-pronged test announced in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).” Wingate v. United States, 969 F.3d 251, 255 (6th Cir. 2020). Specifically, Blough must demonstrate: (1) that counsel's performance fell below an objective standard of reasonableness, and (2) that counsel's deficient performance prejudiced the defendant resulting in an unreliable or fundamentally unfair outcome. Strickland, 466 U.S. at 687-88; see also Williams v. Taylor, 529 U.S. 362, 390-91, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). The Court may address the Strickland prongs in any order, and need not address both prongs if Blough “makes an insufficient showing on one.” See Wingate, 969 F.3d at 955 (quotation marks and citation omitted).

“Surmounting Strickland's high bar is never an easy task.” Padilla v. Kentucky, 559 U.S. 356, 371, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). “Judicial scrutiny of counsel's performance must be highly deferential[.]” Strickland, 466 U.S. at 689. A court considering a claim of ineffective assistance must “indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance[.]” Id. Counsel's performance must be evaluated from the perspective existing at the time of the representation, not from the perspective of hindsight. Id. Indeed, a prisoner must show that counsel made errors so serious that he was not functioning as the counsel guaranteed by the Sixth Amendment, and that counsel's errors were so serious as to deprive him of a fair trial. Strickland, 466 U.S. at 687-88; United States v. Hanley, 906 F.2d 1116, 1120-21 (6th Cir. 1990); Flippins v. United States, 808 F.2d 16, 18 (6th Cir. 1987); see also United States v. Morrow, 977 F.2d 222, 229 (6th Cir. 1992) (“Counsel is constitutionally ineffective only if performance below professional standards caused the defendant to lose what he otherwise would probably have won.”) (citing Strickland, supra.)

Blough's motion is brief, comprising a single paragraph in which he alleges, in toto, that:

During pre-trial conversations Mr. Pierce misled me by telling me that it was not possible to plea [sic] guilty to the drug counts and go to trial on the gun count. At sentencing Judge Lioi clearly stated that I could have done just that and a partial plea was possible (see attached). Another pre-trial issue I had with Mr. Pierce is that he did not fully cover the discovery material with me. He showed me a body cam video with no audio and said nothing of importance was on it, which was incorrect. When showed in full the video would discredit the prosecutions claims that I feared robbery which was the sole grounds for the 924(c) conviction. Mr Pierce also failed to file a motion for

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