Jon Charles Vance Habeas Petition Denied, E.D. Tennessee

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April 21, 2026 Get Citation Alerts Download PDF Add Note

Jon Charles Vance v. United States of America

District Court, E.D. Tennessee

• Citations: None known
• Docket Number: 1:23-cv-00091

• Precedential Status: Unknown Status

• Opinion

• Authorities (21)

• Cited By (0)

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Trial Court Document

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT CHATTANOOGA

JON CHARLES VANCE, )
) Case Nos. 1:18-cr-114, 1:23-cv-91
Petitioner, )
) Judge Travis R. McDonough
v. )
)
UNITED STATES OF AMERICA, )
)
Respondent. )

MEMORANDUM OPINION

Before the Court is Petitioner Jon Charles Vance’s motion to vacate, correct, or set aside
her conviction pursuant to 28 U.S.C. § 2255. (Doc. 1 in Case No. 1:23-cv-91; Doc. 392 in Case
No. 1:18-cr-114.) For the following reasons, the Court will DENY Petitioner’s motion.
I. BACKGROUND
On August 8, 2018, a federal grand jury returned an indictment charging Petitioner with:
(1) one count of conspiring to distribute and possess with the intent to distribute
methamphetamine in violation of 21 U.S.C. §§ 841 (a)(1), 841(b)(1)(A), and 846 (“Count One”);
(2) aiding and abetting to possess with the intent to distribute methamphetamine in violation of 21 U.S.C. § 841 (a)(1), (b)(1)(B), and 18 U.S.C. § 2 (“Count Nineteen”); and (3) abetting to
possess with the intent to distribute methamphetamine in violation of 21 U.S.C. § 841 (a)(1),
(b)(1)(A), and 18 U.S.C. § 2 (“Count Twenty”). (Doc. 3 in Case No. 1:18-cr-114.) Prior to trial,
Petitioner moved to suppress methamphetamine and a scale found during the search of a truck he
was using. (Doc. 100 in Case No. 1:18-cr-114.) The Court denied Petitioner’s motion to
suppress (see Docs. 176, 187 in Case No. 1:18-cr-114), and, after a two-day trial, a jury returned
a verdict finding Petitioner guilty on all three counts. (Doc. 300 in Case No. 1:18-cr-114.)
Petitioner then moved for a judgment of acquittal, or, alternatively, for a new trial, arguing that
an error on the verdict form precluded the jury from finding beyond a reasonable doubt all the
elements necessary to convict on Counts Nineteen and Twenty. (Doc. 315 in Case No. 1:18-cr-
114.) On July 14, 2020, the Court granted in part Petitioner’s motion to the extent it reduced

Petitioner’s conviction on Count Nineteen to the lesser-included charge of violating 21 U.S.C.
§§ 841 (a), (b)(1)(C). (Doc. 344 in Case No. 1:18-cr-114.) The Court subsequently sentenced
Petitioner to 300 months’ imprisonment on each of his counts of conviction, to run concurrently,
and to be followed by ten years of supervised release. (Doc. 349 in Case No. 1:18-cr-114.)
Petitioner appealed his conviction and sentence to the United States Court of Appeals for
the Sixth Circuit. (See Doc. 352 in Case No. 1:18-cr-114.) In affirming the Petitioner’s
conviction and sentence, the Sixth Circuit summarized the underlying facts of this case as
follows:
The Initial Drug Enterprise. In mid-2016, Jon Vance and Megan Beatty became
“50-50” partners in a methamphetamine distribution business. According to
Beatty’s testimony, she traveled from Tennessee to Atlanta, Georgia, about once
per week to purchase methamphetamine from a supplier. At first, she was
purchasing about “10 ounces,” but soon she was purchasing “one to two kilos.” . .
. On one occasion, Vance drove with Beatty to Atlanta, but otherwise Beatty
made the trip alone and Vance would simply give Beatty money to pay for his
half of the drugs. The cost of a kilogram of the drugs was between $4,000 and
$6,000. After a trip to Atlanta, Vance and Beatty brought the methamphetamine
to a storage unit or the house in which they were both living, where they “would
stand side by side and weigh it out” into ounce-size bags. They then sold the
drugs to their own customers. This process was repeated “[t]oo many [times] to
count.”
In late 2017, Beatty introduced Vance to her then-boyfriend, Derrick Kitchens.
Between October 2017 and January 26, 2018, Kitchens and Beatty made one to
two trips per week to Georgia to buy methamphetamine from a supplier, and then
Vance and Kitchens would split the drugs at an auto-repair shop owned in part by
Vance. On their first trip they purchased one to two kilograms, but after that they
were purchasing, “on average,” three to six kilograms each trip. . . . Although
Beatty was no longer selling, Vance and Kitchens would pay Beatty to use her car
for the supply trips. After Kitchens was arrested on January 26, 2018, Vance
found a new supplier.
Smuggling Drugs Into Jail. Kitchens called from the Hamilton County Jail and
spoke to Beatty and Vance on February 13, 2018. Kitchens proposed a scheme to
“make a killing.” Kitchens’s plan was for Beatty and Vance to smuggle
methamphetamine and tobacco into the jail, and then he would sell the drugs for
$150 to $200 per gram. Kitchens, in turn, would send Vance and Beatty money
using an electronic funds card. Vance and Beatty agreed to the plan.
Beatty and Vance immediately went to a store, where they purchased supplies to
wrap and package the contraband.
Next, they drove to the house of one of Vance’s acquaintances, and Vance
purchased methamphetamine. While Beatty drove to the jail, Vance and another
passenger packaged the methamphetamine and tobacco using two quarter coin
rolls, plastic wrap, and double-sided tape around the outside.
Vance and Beatty both walked into the Jail. While Beatty filled out paperwork to
pick up Kitchens’s property, Vance sat down on a metal bench. As instructed by
Kitchens, Vance leaned over and stuck both packages to the underside of the
bench. Unbeknownst to Vance, local law enforcement was watching and waiting
for him. A detective saw Vance put something under the bench after sitting
down. Vance and Beatty were arrested. Under the bench where Vance was
sitting, another detective found one tobacco package and one methamphetamine
package. A lab test showed that the methamphetamine was 92 percent pure and
weighed 13.63 grams (almost half an ounce), for a total of 12.53 grams of pure
methamphetamine.
. . .
Vehicle Search. In March 2018, Vance and Connie Beltran were arrested for
shoplifting at a Walmart store in Collegedale, Tennessee. The arresting officers
searched Vance and seized $1,649 and two knives. Although Vance told the
officers that “some guy dropped him off,” he had in his hand a set of car keys,
which included a broken GMC key. Beltran, however, told police “something
about a white truck.” The officers then viewed the parking lot security video,
which showed Vance and Beltran arrived earlier in a white GMC pickup truck.
Using the key seized from Vance, Officer Gienapp entered the white GMC truck
and started the engine. He immediately stopped and exited the truck when Officer
Holloway ordered him to do so and stated that they would get a search warrant.
Walmart’s management told the officers that the truck should be removed from
the premises. As a result, the truck was towed to the police department’s impound
lot, and the officers obtained a search warrant for the truck.
When officers searched the truck, they found a backpack and in it: a digital scale
and 128.67 grams (about 4.5 ounces) of 99 percent pure methamphetamine
divided into several bags, which equates to 127.38 grams of pure
methamphetamine.
Beatty testified that on the night before Vance was arrested, she saw him put into
his backpack a digital scale and “anywhere from 7 to 10 ounces” of
methamphetamine, divided between separate bags, and that Vance said he was
planning to “drop off around 4 ounces,” but “he didn't know if ... somebody else
might want some.” . . . According to Beatty, the price of an ounce of
methamphetamine was “[a]bout $400.” . . . Beatty also stated that she saw
Beltran and Vance, with his backpack, leave in a white GMC truck.
Beltran’s testimony was consistent. She stated that after Vance talked with
Beatty, “he grabbed his backpack and we got in the white truck and we left.”
They drove to visit Vance’s friend, Vance “sold him meth” from his backpack,
and then they went to Walmart.
United States v. Vance, Case Nos. 20-5819/5820, 2021 WL 5133250, at *1–2 (6th Cir. Nov. 4,
2021) (internal citations omitted).
After the Sixth Circuit affirmed Petitioner’s conviction and sentence, he filed a petition
for writ of certiorari to the United States Supreme Court, which it denied on April 19, 2022.
(Doc. 380 in Case No. 1:18-cr-114.) Petitioner then timely filed the instant § 2255 motion on
April 17, 2023. (Doc. 1 in Case No. 1:23-cv-91; Doc. 392 in Case No. 1:18-cr-114.) In his
§ 2255 motion, Petitioner argues that the Court should vacate his conviction and sentence
because his counsel was ineffective based on his failure to: (1) object to the error in the jury
instructions during trial; (2) raise certain arguments regarding the Court’s denial of his motion to
suppress on appeal; (3) object to and appeal the Court’s calculation of his advisory guidelines
range; (4) include arguments Petitioner wanted included in his reply brief on appeal; (5) properly
“advise him on all facts and law relevant to his decision to plead not guilty and proceed to trial”;
(6) “investigate and present available material” in connection with his motion to suppress; (7)
“correctly object” to the report and recommendation recommending denial of his motion to
suppress; (8) “investigate and present available material at trial and failed to timely object to the
unlawful admission of evidence by the prosecution”; (9) “investigate or present available
evidence and legal authority material to the sentencing”; and (10) “investigate or present the
strongest issues available to [Petitioner] for his [d]irect [a]ppeal.” (Doc. 1, at 8–13 in Case No.
1:23-cv-91.) Petitioner also claims that his attorney had an unspecified conflict of interest. (Id.
at 13.) Petitioner’s § 2255 motion is now ripe for the Court’s review.

II. STANDARD OF LAW
To obtain relief under 28 U.S.C. § 2255, a petitioner must demonstrate: “(1) an error of
constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of
fact or law . . . so fundamental as to render the entire proceeding invalid.” Short v. United States, 471 F.3d 686, 691 (6th Cir. 2006) (quoting Mallett v. United States, 334 F.3d 491, 496–97 (6th
Cir. 2003)). He “must clear a significantly higher hurdle than would exist on direct appeal” and
establish a “fundamental defect in the proceedings which necessarily results in a complete
miscarriage of justice or an egregious error violative of due process.”1 Fair v. United States, 157
F.3d 427, 430 (6th Cir. 1998).

III. ANALYSIS
Petitioner asserts that the Court should vacate his conviction and sentence because he
received ineffective assistance of counsel. To collaterally attack his conviction based on
ineffective assistance of counsel, Petitioner must establish “that [his] lawyers performed well
below the norm of competence in the profession and that this failing prejudiced [his] case.”

1 In ruling on a § 2255 petition, the Court must also determine whether an evidentiary hearing is
necessary. “An evidentiary hearing is required unless the record conclusively shows that the
petitioner is entitled to no relief.” Martin v. United States, 889 F.3d 827, 832 (6th Cir. 2018)
(quoting Campbell v. United States, 686 F.3d 353, 357 (6th Cir. 2012)); see also 28 U.S.C.
§ 2255 (b). In this case, an evidentiary hearing is not needed because the record conclusively
shows that the Petitioner is not entitled to relief.
Caudill v. Conover, 881 F.3d 454, 460 (6th Cir. 2018) (citing Strickland v. Washington, 466 U.S.
668, 687 (1984)). The performance inquiry requires the defendant to “show that counsel’s
representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688.
There is a “strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.” Id. at 689. Therefore, the Court should resist “the temptation to rely on

hindsight . . . in the context of ineffective assistance claims.” Carson v. United States, 3 F.
App’x 321, 324 (6th Cir. 2001); see also Strickland, 466 U.S. at 689 (“A fair assessment of
attorney performance requires that every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the
conduct from counsel’s perspective at the time.”). Additionally, the prejudice inquiry requires
the defendant to “show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id. at 694.
A. Motion to Suppress
Petitioner first asserts that he received ineffective assistance because his counsel: (1) did

not raise certain arguments in objecting to the magistrate judge’s report and recommendation,
which recommended denying his motion to suppress; (2) did not request a Franks hearing; and
(3) did not argue that officers lacked probable cause to enter the truck under New York v. Class, 475 U.S. 106 (1986). (See Doc. 1-1, at 1.)
To the extent Petitioner contends that he received ineffective assistance of counsel
because his attorney did not “correctly object” to the magistrate judge’s report and
recommendation, that argument fails. First, Petitioner’s attorney objected to the magistrate
judge’s report and recommendation, and the Court overruled Petitioner’s objections and denied
his motion to suppress. (Docs. 185, 187 .) Second, to the extent Petitioner claims his counsel
should have requested a Franks hearing, Petitioner does not explain any factual basis supporting
his argument that counsel should have challenged the validity of the search warrant used to
search the truck or that the information in the warrant affidavit included false statements or
statements made with reckless disregard for the truth. Finally, to the extent Petitioner otherwise
contends that his counsel was ineffective in connection with moving to suppress evidence seized

from the truck, that argument fails because, as the Sixth Circuit has explained, he “has no right to
challenge the seizure and search of the truck . . . because there is no evidence he was lawfully in
possession of the truck.” (Doc. 372, at 7–8 in Case No. 1:18-cr-114.) Accordingly, Petitioner’s
§ 2255 motion will be denied to the extent he contends that he received ineffective assistance of
counsel in connection with his motion to suppress.
B. Counsels’ Investigation
Petitioner next argues that he received ineffective assistance of counsel because his
attorneys failed to adequately investigate certain issues related to his case, including: (1) not
taking photographs of the stairwell at the Hamilton County Jail; (2) failing to investigate issues

related to his motion to suppress; (2) failing to “investigate or present available material at trial”;
(3) failing to “investigate or present available evidence and legal authority material to [his]
sentencing” (4) failing to “investigate or present the strongest issues available” on direct appeal.
(Doc. 1, at 12, in Case No. 1:23-cv-91.)
A defendant who alleges a failure to investigate by counsel must identify “what the
investigation would have revealed and how it would have altered the outcome.” United States v.
Birdsong, No. 5:16-016-DCR, 2019 WL 4696410, at *2 (E.D. Ky. Sept. 26, 2019) (citation
omitted). Additionally, “strategic choices made after thorough investigation of law and facts
relevant to plausible options are virtually unchallengeable; and strategic choices made after less
than complete investigation are reasonable precisely to the extent that reasonable professional
judgments support the limitations on investigation.” Lang v. Bobby, 889 F.3d 803, 814–15 (6th
Cir. 2018). Petitioner bears the burden of establishing that his counsel did not properly
investigate. Carter v. Mitchell, 443 F.3d 517, 532 (6th Cir. 2006) (“Without proof to the
contrary, we must assume that counsel did investigate . . . .”).

In this case, Petitioner has not met his burden of demonstrating that his counsel failed to
properly investigate issues related to his case; rather, Petitioner generically asserts that his
counsel did conduct an adequate investigation and then summarily concludes that “[b]ut for
Counsel’s error, there is a reasonable probability that the outcome of his proceedings would have
been different.” (Doc. 1, at 12, in Case No. 1:23-cv-91.) Such conclusory allegations do not
identify what counsel’s investigation should have revealed or how it would have altered the
outcome of Petitioner’s case. As a result, Petitioner has not demonstrated that counsels’
investigations fell below an objective standard of reasonableness or that but for counsels’
investigatory errors the outcome of his case would have been different. Accordingly, the Court

will deny Petitioner’s § 2255 motion to the extent he contends that he received ineffective
assistance of counsel based on his counsels’ failure to investigate his case properly.
C. Conflict of Interest
Petitioner also asserts that counsel was ineffective because he “labored under an actual
conflict of interest” when he moved to continue the trial date based on a scheduling conflict with
another trial (Doc. 1-1, at 6), and when he requested an extension to file Petitioner’s appeal brief
based on his trial schedule (id. at 9–10). To establish a claim of ineffective assistance of counsel
based on a conflict of interest, a petitioner must show an actual conflict and prejudice resulting
from the conflict. See McNeal v. United States, 17 F. App’x 258, 262 (6th Cir. 2001) (explaining
that “[t]o establish an actual conflict, the defendant must point to specific instances in the record
to suggest an actual conflict or impairment of his interests,” and that “[t]he petitioner must show
that the attorney made a choice between possible alternative courses of action . . . helpful to one
client but harmful to another”).
In this case, Petitioner has not demonstrated an actual conflict or prejudice resulting from

the alleged conflict. Moreover, attorneys often represent multiple clients in cases that are
proceeding simultaneously and routinely request that courts continue matters or grant extensions
to file pleadings to accommodate their schedules. Petitioner’s motion wholly fails to explain
how his counsel’s requested continuance and extension of time to file his appellate brief
constitutes an actual conflict of interest or that his counsel’s actions prejudiced him such that the
outcome of his trial or his appeal would have been different. Accordingly, the Court will deny
Petitioner’s § 2255 motion to the extent he claims that he received ineffective assistance of
counsel based on a purported conflict of interest.
D. Plea Negotiations

Petitioner also argues that he received ineffective assistance of counsel during plea
negotiations. Specifically, Petitioner contends that his attorney failed to present a plea
agreement offered by the Government in a timely manner and that his attorney failed to advise
him of all facts and law relevant to his decision to plead not guilty and proceed to trial. (Doc. 1,
at 12 in Case No. 1:23-cv-91.) E-mails attached to Government’s response, however,
demonstrate that Petitioner’s counsel did promptly provide him with a copy of the Government’s
proposed plea offer and discussed it with him, but Petitioner decided to proceed to trial. (See
Docs. 7-1, 7-2 in Case No. 1:23-cv-91.) To the extent Petitioner contends that his counsel failed
to properly advise him as to the facts and law necessary to determine whether he should plead
guilty, Petitioner has not identified any facts or law that his counsel should have advised him of
in connection with his decision to reject the Government’s plea offer. Finally, to the extent
Petitioner argues that his counsel should have negotiated a favorable plea that reserved the right
to appeal the denial of his suppression motion, Petitioner has no right to a plea agreement, and
the Government is not required to accept any terms proposed by a defendant. See Weatherford v.

Bursey, 429 U.S. 545, 561 (1977). Accordingly, Petitioner has not demonstrated that his
counsel’s representation fell below an objective standard of reasonableness in connection with
plea negotiations or that there is a reasonable probability the outcome of his proceeding would
have been different absent his counsel’s alleged ineffective assistance.
E. Discovery
Petitioner next argues that he received ineffective assistance during discovery, primarily
contending that the Government unreasonably delayed in providing him with certain discovery
prior to his initial suppression hearing, and that his counsel should have renewed or reopened his
motion to suppress based on discrepancies in Officer Holloway’s suppression hearing testimony

and the dashcam/bodycam recordings disclosed after his initial suppression hearing. (See Doc.
1-1, at 2–4.) These arguments fail because Petitioner received supplemental discovery nearly six
months before his trial, and, as a result, he had full discovery from the Government in plenty of
time for its use a trial. Under these circumstances, there was no due process violation, and
counsel was not ineffective for failing to make an argument to that effect. Additionally,
Petitioner has failed to demonstrate that his counsel’s representation fell below an objective
standard of reasonableness by failing to move to reopen the suppression hearing based on the
supplemental discovery production. At best, Petitioner has identified only minor and immaterial
discrepancies between officer testimony during the suppression hearing and dashcam/bodycam
recordings eventually produced by the Government. These minor inconsistencies do not wholly
discredit the officers’ testimony at the suppression hearing, see United States v. Pedicini, 804 F.
App’x 351, 354 (6th Cir. 2020), and Petitioner has not demonstrated that had his attorney moved
to reopen the suppression hearing the result of the suppression hearing would have been
different. Accordingly, Petitioner has not met his burden of demonstrating an error of

constitutional magnitude as it relates to his attorney’s representation during discovery.
F. Trial
Vance also argues that he received ineffective assistance at trial because counsel: (1)
failed to present “available material” (Doc. 1, at 12 in Case No. 1:23-cv-91); (2) did not object to
“unlawful admission of evidence” by the Government (id.); (3) failed to ask certain questions to
witnesses and object to certain testimony and evidence (Doc. 1-1, at 7–8 in Case No. 1:23-cv-
91); and (4) failed to “properly review jury instructions” before trial (id. at 8).
As it relates to counsel’s decisions at trial, “tactical decisions of trial counsel are
particularly difficult to attack, and a [petitioner’s] challenge to such decisions must overcome a

presumption that the challenged action might be considered sound trial strategy.” Hurley v.
United States, 10 F. App’x 257, 260 (6th Cir. 2001). To that end, to show “constitutionally
ineffective representation” a petitioner must show “that a reasonable probability exists that, but
for counsel’s unprofessional errors, the result of the [trial] would have been different and that
counsel’s errors undermined the reliability and confidence in the result.” Id. Moreover,
counsel’s decisions regarding questioning of witnesses, however, are matters of trial strategy
and, thus, are “effectively insulated” from review in the context of a motion made pursuant to 28
U.S.C. § 2255. Similarly, whether counsel lodges an objection to evidence at trial is a matter of
trial strategy, and failure to object to the admissibility of inadmissible evidence does not
constitute ineffective assistance unless the evidence so prejudicial that it “essentially defaults the
case.” Lundgren v. Mitchell, 440 F.3d 754, 774 (6th Cir. 2006). “Otherwise, defense counsel
must so consistently fail to use objections, despite numerous and clear reasons for doing so, that
counsel’s failure cannot reasonably have been said to have been part of a trial strategy or tactical
choice.” Id. In this case, Petitioner has not met his burden of demonstrating that counsel’s strategic
decisions at trial fell below an objective standard of reasonableness. Although Petitioner
identified questions and objections he believes his counsel should have pursued, he has not
explained how counsel’s failure to ask those questions or make those objections falls outside the
parameters of sound trial strategy. Moreover, Petitioner has not met his burden of demonstrating
that there is a reasonable probability result of the trial would have been different had counsel
asked questions Petitioner wanted him to ask, objected to evidence Petitioner wanted him to
object to, or presented evidence Petitioner wanted him to introduce. Further, to the extent
Petitioner claims that his attorney failed to properly review the jury instructions, that argument

fails because the record indicates that counsel did review the proposed jury instructions both
before and during trial, and Petitioner has not identified any error in the jury instructions that the
Court ultimately gave. Accordingly, Petitioner has not demonstrated that his counsel’s
performance at trial fell below an objective standard of reasonableness or that the result of his
trial would have been different absent his counsel’s alleged ineffective assistance.2

2 To the extent Petitioner argues that he received ineffective assistance because his counsel failed
to object to the verdict form, that argument fails because the Court ultimately disregarded the
question in the verdict form that contained the error and reduced Petitioner’s conviction to a
violation of 18 U.S.C. § 841 (b)(1)(C), rather than § (b)(1)(B). Moreover, the Sixth Circuit
considered the verdict-form issue on direct appeal and determined that Petitioner ultimately
received a benefit from the clerical error on the verdict form. Vance, 2021 WL 5133250, at *8–
9. As a result, even though counsel failed to object to the error in the verdict form, Petitioner has
G. Sentencing
Petitioner next argues that he received ineffective assistance of counsel at sentencing
because his attorney did not “correctly object” to: (1) the drug quantity used to calculate his base
offense level; (2) to the forfeiture amount; and (3) the criminal history points assessed to him.
(Doc. 1, at 12 in Case No. 1:23-cv-91; Doc. 1-1, at 8–9 in Case No. 1:23-cv-91.) Petitioner’s

argument fails because his counsel objected to all three of these issues at sentencing and because
the Sixth Circuit expressly found that there was no error in calculating Petitioner’s base offense
level, the amount of methamphetamine attributed to him, and the forfeiture amount. See Vance, 2021 WL 5133250, at *9–11. To the extent Petitioner claims that his counsel incorrectly
objected to the computation of his criminal history, that argument also fails because he has not
demonstrated that the Court incorrectly calculated his criminal history points or that his
counsel’s decisions regarding which objections to make at sentencing fell below an objective
standard of reasonableness such that the outcome of his sentencing would have been different.
Accordingly, Petitioner has not met the Strickland standard as it relates to his counsel’s

representation at sentencing.
H. Appeal
Finally, Petitioner contends that he received ineffective assistance of counsel on direct
appeal. (See Doc. 1, at 12 in Case No. 1:23-cv-91; Doc. 1-1, at 9–11 in Case No. 1:23-cv-91)
The Supreme Court has recognized that counsel must “support his client’s appeal to the best of
his ability” and be an “active advocate [on] behalf on his client.” Anders v. California, 386 U.S.
738, 744 (1967). However, this right to effective assistance of counsel “does not include the

failed to demonstrate that the result of the proceeding would have been different given that the
Court accounted for the verdict form’s error and reduced Petitioner’s conviction on that count
accordingly.
right to counsel for bringing a frivolous appeal.” Smith, 528 U.S. at 278. Counsel also is not
required to “raise every nonfrivolous issue requested by the client” Jones v. Barnes, 463 U.S.
745, 750 (1983) and in fact, courts have noted that it is often a good strategy to raise only the
strongest arguments. See, e.g., Caver v. Straub, 349 F.3d 340, 348 (6th Cir. 2003) (“Indeed, the
process of winnowing out weaker arguments on appeal and focusing on those more likely to

prevail . . . is the hallmark of effective appellate advocacy.”) (citations and internal quotations
omitted). Therefore, the fact that counsel did not raise a certain issue on appeal that a petitioner
wanted her to raise does not necessarily establish ineffective assistance of counsel. Instead, “[a]
petitioner must show that the omitted claim was stronger than the issues actually raised.” Haight
v. Jordan, 59 F.4th 817, 846 (6th Cir. 2023), cert. denied, 144 S. Ct. 578 (2024). This is a high
bar for a petitioner to clear given the deference that courts must give to the tactical decisions of
appellate counsel. See Smith, 528 U.S. at 288 (noting that “it is still possible to bring
a Strickland claim based on counsel’s failure to raise a particular claim, but it is difficult to
demonstrate that counsel was incompetent”).

In this case, Petitioner has failed to meet his burden of demonstrating that his counsel
omitted claims stronger than the issues actually raised on appeal or that, had counsel raised those
arguments, the results of his appeal would have been different. The jury verdict form included
the statutory thresholds for the drug quantities necessary to convict him under 18 U.S.C. §
841 (b)(1)(A), (B), or (C), and it would have been frivolous for his counsel to argue that other
drug amounts should have been included on the verdict form because the Sixth Circuit has
explained that a jury need only determine that a drug quantity surpasses the threshold amount.
United States v. Grooms, 194 F. App’x 355, 363 (6th Cir. 2006). To the extent Petitioner argues
that his counsel should have raised the discrepancies between officer testimony at the
suppression hearing and dashcam/bodycam footage, that argument also fails because, as
discussed above, there were only minor and immaterial discrepancies between officer testimony
during the suppression hearing and dashcam/bodycam recordings, none of which is significant
enough to reasonably suggest that he would have prevailed on appeal had his counsel raised that
argument. (See infra § III.A.) Petitioner’s argument that his appellate counsel should have

argued that his prior counsel was constitutionally ineffective in litigating his suppression motion
also fails because he has not demonstrated his prior counsel was constitutionally ineffective and
because appellate courts “generally do not review ineffective assistance claims on direct appeal.”
United States v. Dixson, No. 23-1400, 2024 WL 2974483, at *5 (6th Cir. June 13, 2024). To the
extent Petitioner contends that his counsel should have raised additional arguments regarding the
drug quantity attributed to him at sentencing, that argument fails because the Sixth Circuit has
already reviewed and determined that the Court did not err in calculating drug quantity
attributable to Petitioner and the resulting base offense level. See Vance, 2021 WL 5133250, at
*9–11. Petitioner has also failed to demonstrate that the likelihood of his appeal would have

been different if his counsel had challenged his criminal history score on appeal or had his
attorney raised new arguments in his reply brief. At bottom, none of the arguments identified by
Petitioner are “clearly stronger” than the arguments his attorney actually raised on direct appeal.
As a result, Petitioner has not satisfied his burden of demonstrating that he received ineffective
assistance on direct appeal.
IV. CONCLUSION
For the foregoing reasons, Petitioner’s motion to vacate his sentence (Doc. 1 in Case No.
1:23-cv-91; Doc. 392 in Case No. 1:18-cr-114) is DENIED. This action will be DISMISSED
WITH PREJUDICE. Should Petitioner give timely notice of an appeal from this order, such
notice will be treated as an application for a certificate of appealability, which is DENIED
because he has failed to make a substantial showing of the denial of a constitutional right or to
present a question of some substance about which reasonable jurists could differ. See 28 U.S.C.
§ 2253 (c)(2); Fed. R. App. P. 22(b); Slack v. McDaniel, 529 U.S. 473, 484 (2000). Additionally,
the Court has reviewed this case pursuant to Rule 24 of the Federal Rules of Appellate Procedure

and hereby CERTIFIES that any appeal from this action would not be taken in good faith and
would be totally frivolous. Therefore, any application by Petitioner for leave to proceed in forma
pauperis on appeal is DENIED. See Fed. R. App. P. 24.
AN APPROPRIATE JUDGMENT SHALL ENTER.
/s/ Travis R. McDonough
TRAVIS R. MCDONOUGH
UNITED STATES DISTRICT JUDGE