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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT CINCINNATI

UNITED STATES OF AMERICA,

Plaintiff, : Case No. 1:17-cr-096

Also 1:20-cv-374

District Judge Susan J. Dlott

- vs - Magistrate Judge Michael R. Merz

BRIAN GRIMES,

Defendant. :

REPORT AND RECOMMENDATIONS

This case under 28 U.S.C. § 2255 is before the Court for decision on the merits. The 

relevant filings are Defendant’s § 2255 Motion (ECF No. 92), the Government’s Response (ECF 

No. 105), and Defendant’s Reply (ECF No. 112).

Litigation History

Defendant was indicted by a grand jury for this District on August 16, 2017, and charged 

with conspiracy to distribute narcotics (Count One), distribution of cocaine and fentanyl resulting 

in death (Count Two), distribution of cocaine (Count Three), distribution of cocaine, LSD, 

methamphetamine, and carfentanil (Count Four), operating a drug facility (Count Five), possession 

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of a firearm in furtherance of a drug trafficking offense (Count Six), and possession of a firearm 

by a convicted felon (Count Seven).

On May 31, 2018, Grimes entered into a Plea Agreement with the united states under which 

he agreed to plead guilty to Counts One and Six (ECF No. 46). On June 4, 2018, he pleaded guilty 

pursuant to the Plea Agreement (Minutes, ECF No. 47). After reviewing a presentence 

investigation report, Judge Dlott sentenced Grimes on May 14, 2019 (Minutes, ECF No. 85; 

Judgment, ECF No. 86). Grimes took no appeal, but filed the instant § 2255 Motion a year later 

on May 11, 2020 (ECF No. 92).

Grimes pleads the following Grounds for Relief:

Ground One: Petitioner[‘s] right to effective assistance of counsel 

during sentencing under the Sixth Amendment to the U.S. 

Constitution was violated.

Supporting Facts: During Petitioner’s sentencing hearing attorney 

William M. Welsh[’s] was unreasonable when counsel failed to 

argue the 2 level enhancement for operating a drug premises; 

Attorney William Welsh failed to argue against unreliable 

information that a deceased victim aquired [sic] drugs from 

Petitioner that influence[d] Petitioner’s sentence.

Ground Two: Petitioner’s Due Process rights were violated.

Supporting Facts: The Government indicted Petitioner under U.S. 

Code violations 922(g) and 924(c). Under the new statutory 

interpretation of 922(g), the Petitioner is actual[ly] innocent of 

922(g) and 924(c). Petitioner never had a firearm in his possession.

Ground Three: Petitioner’s right to effective assistance of counsel 

under the Sixth Amendment of the United States Constitution was 

violated.

Supporting Facts: During Petitioner’s suppression hearing, trial 

attorney’s performance fell below the professional norms when he 

failed to argue about the affiant’s entering the residence first 

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illegally and then obtaining a search warrant. Trial attorney during 

the suppression hearing failed to argue that the affiant of the search 

warrant omitted information about the credibility of the confidential 

informant. Trial attorney also failed to argue about the affidavit 

being stale, with no specifics, no times, dates, or no recorded drug 

sales in the affidavit. Trial attorney failed to appeal the denial of the 

court decision on the suppression hearing and failed to argue about 

falsified police report that was based on lies. Trial attorney also 

failed to call witnesses for the suppression hearing. 

(Motion, ECF No. 92, PageID 353-566).

Analysis

Ground One: Ineffective Assistance of Trial Counsel at Sentencing

In his First Ground for Relief, Grimes contends he received ineffective assistance of trial 

counsel at sentencing when he failed to argue (1) against a two-level in enhancement in Sentencing 

Guideline offense conduct measurement for operating a drug facility and (2) against unreliable 

information that attributed a deceased victim’s death to drugs acquired from Grimes.

The governing standard for ineffective assistance of counsel is found in Strickland v. 

Washington, 466 U.S. 668 (1984):

A convicted defendant's claim that counsel's assistance was so 

defective as to require reversal of a conviction or death sentence has 

two components. First, the defendant must show that counsel's 

performance was deficient. This requires showing that counsel was 

not functioning as the "counsel" guaranteed the defendant by the 

Sixth Amendment. Second, the defendant must show that the 

deficient performance prejudiced the defense. This requires 

showing that counsel's errors were so serious as to deprive the 

defendant of a fair trial, a trial whose result is reliable. Unless a 

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defendant makes both showings, it cannot be said that the conviction 

or death sentence resulted from a breakdown in the adversary 

process that renders the result unreliable.

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:

Judicial scrutiny of counsel's performance must be highly 

deferential. . . . 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. Because of the difficulties inherent in making the 

evaluation, a court must indulge a strong presumption that counsel's 

conduct falls within a wide range of reasonable professional 

assistance; that is, the defendant must overcome the presumption 

that, under the circumstances, the challenged action "might be 

considered sound trial strategy."

466 U.S. at 689.

As to the second prong, the Supreme Court held: “The defendant must show that there is a 

reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding 

would have been different. A reasonable probability is a probability sufficient to overcome

confidence in the outcome.” 466 U.S. at 694. See also Darden v. Wainwright, 477 U.S. 168, 184 

(1986), citing Strickland, supra.; Wong v. Money, 142 F.3d 313, 319 (6th Cir. 1998), citing 

Strickland, supra; Blackburn v. Foltz, 828 F.2d 1177, 1180 (6th Cir. 1987), quoting Strickland, 

466 U.S. at 687. “The likelihood of a different result must be substantial, not just conceivable.” 

Storey v. Vasbinder, 657 F.3d 372, 379 (6th Cir. 2011), quoting Harrington v. Richter, 562 U.S. 

86, 111-12 (2011). 

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In assessing prejudice under Strickland, the question is not whether 

a court can be certain counsel's performance had no effect on the 

outcome or whether it is possible a reasonable doubt might have 

been established if counsel acted differently. See Wong v. 

Belmontes, 558 U.S. 15, 27, 130 S. Ct. 383, 175 L. Ed. 2d 328 

(2009) (per curiam); Strickland, 466 U.S., at 693, 104 S. Ct. 2052, 

80 L. Ed. 2d 674. Instead, Strickland asks whether it is “reasonably 

likely” the result would have been different. Id., at 696, 104 S. Ct. 

2052, 80 L. Ed. 2d 674. This does not require a showing that 

counsel's actions “more likely than not altered the outcome,” but the 

difference between Strickland's prejudice standard and a moreprobable-than-not standard is slight and matters “only in the rarest 

case.” Id., at 693, 697, 104 S. Ct. 2052, 80 L. Ed. 2d 674. The 

likelihood of a different result must be substantial, not just 

conceivable. Id., at 693, 104 S. Ct. 2052, 80 L. Ed. 2d 674.

Harrington v. Richter, 562 U.S. 86, 111-112 (2011).

With respect to the first part of the First Ground for Relief, the Government points out that 

Grimes admitted in the Statement of Facts attached to the Plea Agreement that he was selling drugs 

from 2652 Fenton Avenue (Response, ECF No. 105, PageID 461, citing ECF No. 46-1). The 

Government points out that the Presentence Investigation Report also concluded that Petitioner 

and co-defendant Stevie Pruitt “maintained the residence located at 2652 Fenton Avenue, 

Cincinnati for the purpose of distributing and storing drugs and drug proceeds, which is evidenced 

by the quantity of drugs and the drug trafficking paraphernalia recovered from the residence” and 

that Grimes made no objection to this conclusion in the pre-sentence process or at sentencing (Id., 

citing PSR, ¶ 34).

In his Reply, Grimes claims he did not admit 2652 Fenton was used for selling drugs. The 

Statement of Facts contains the statement “An officer with CPD [Cincinnati Police Department] 

had been informed by a confidential source that "BG" resided at 2652 Fenton Ave., Second Floor, 

Cincinnati, OH and was selling narcotics from the location.” Grimes’ signature on the Statement 

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of Facts does not amount to an admission that he was selling drugs from 2652 Fenton, but rather 

that a confidential informant had told that to the Cincinnati Police. Grimes does not claim that 

admission is untrue. 

Also in the Statement of Facts is the sentence “Among the numerous items seized were 

multiple cellular telephones, weapons, United States currency and a variety of illegal narcotics 

(including, heroin, LSD, methamphetamine, cocaine and carfentanil).” Id. at PageID 159. Grimes 

does not deny the truth of the statement which is entirely consistent with the conclusion that 2652 

Fenton was being maintained as a drug facility, whether or not any sales were ever actually made 

at the residence.

In faulting his attorney for not contesting the facility enhancement, Grimes does not say 

what Mr. Welsh should have done in contesting it. If he had had Grimes swear he never made any 

sales at that location, that would not have rebutted the evidence that drugs, weapons, currency, and 

multiple cellphones were found there. 

In sum, Grimes had not shown it was deficient performance for his counsel not to argue 

against the facility enhancement.

As to the resulting-death enhancement, Grimes makes no evidentiary claims at all. That 

is, he does not say what information the Government relied on to connect him with the death was 

unreliable or why it was unreliable.

Ground Two: Actual Innocence

In his Second Ground for Relief, Grimes argues he is actually innocent of violating 18 

U.S.C. § 922(g), based on Rehaif v. United States, 588 U.S. ___, 139 S. Ct. 2191 (2019), decided 

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June 21, 2019, a month after Grimes was sentenced (ECF No. 112, PageID 488.) The Sixth Circuit 

has held that Rehaif stated a new rule of statutory interpretation, to wit, that at trial the Government 

must prove that a person charged under 18 U.S.C. § 922(g) must be shown to have known he was 

in a class of persons prohibited from possessing firearms. New rules of law are not, with 

exceptions which do not apply here, applicable on collateral attacks of judgments entered before 

they were handed down. Graham v. Collins, 506 U.S. 461 (1993); Stringer v. Black, 503 U.S. 222 

(1992); Teague v. Lane, 489 U.S. 288 (1989). 

Even if Rehaif were retroactively applicable to cases on collateral review, it would not 

establish Grimes is actually innocent. Grimes and Pruitt were charged in Count Six with 

possession of firearms and ammunition in further of a drug trafficking crime. Count Seven, the § 

922(g) count, was dismissed as part of the Plea Agreement.

Ground Three: Ineffective Assistance of Counsel in the Suppression Hearing

In his Third Ground for Relief, Grimes posits various additional ways in which his counsel 

should have proceeded in the attempted suppression of evidence. The critical point the 

Government makes in response is that, after his motion to suppress had been denied, Grimes 

pleaded guilty (Response, ECF No. 105, PageID 463). A valid, unconditional guilty or no contest 

plea waives all “constitutional violations occurring prior to a plea of guilty once the defendant 

enters his plea,” including a challenge to the evidence supporting a conviction and any pre-plea 

constitutional violations, unless expressly preserved in a plea agreement or at a plea hearing. 

United States v. Lalonde, 509 F.3d 750, 757 (6th Cir. 2007); see also Tollett v. Henderson, 411 

U.S. 258, 267 (1973). A guilty or no contest plea renders irrelevant those constitutional violations 

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not logically inconsistent with the valid establishment of factual guilt. Menna v. New York, 423 

U.S. 61 (1975). “[A] voluntary and unconditional guilty plea ‘bars any subsequent nonjurisdictional attack on the conviction.’” United States v. Corp, 668 F.3d 379, 384 (6th Cir. 2012), 

citing United States v. Martin, 526 F.3d 926, 932 (2008), citing United States v. Pickett, 941 F.2d 

411, 416 (6th Cir. 1991). By pleading guilty and failing to reserve the issue for appeal, Grimes 

waived any claim that he received ineffective assistance of trial counsel at the suppression hearing.

Claims Made in the Reply That Are Not Made in the Motion

In his Reply Grimes makes a number of claims about ways in which his plead is invalid. 

For example, he claims he was coerced to sign the Statement of Facts, told to make certain untrue 

statements in the plea colloquy, etc. These claims are not made in the § 2255 Motion, but in his 

Reply to the Government’s Response. A district court may decline to review a claim a petitioner 

raises for the first time in his traverse or reply. Jalowiec v. Bradshaw, 657 F.3d 293 (6th Cir. 2011), 

citing Tyler v. Mitchell, 416 F.3d 500, 504 (6th Cir. 2005). Grimes has never moved to amend his 

§ 2255 Motion to add a claim or claims that his plea is invalid and the statute of limitations on 

making such new claims has now expired.

Conclusion

Based on the foregoing analysis, it is respectfully recommended that the Motion to Vacate 

be dismissed with prejudice and the Clerk instructed to enter judgment to that effect. Because 

reasonable jurists would not disagree with this conclusion, it is also recommended that Petitioner 

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be denied a certificate of appealability and that the Court certify to the Sixth Circuit that any appeal 

would be objectively frivolous and should not be permitted to proceed in forma pauperis. 

October 20, 2020.

s/ Michael R. Merz

 United States Magistrate Judge

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. Because this document is being served by mail, three days are added under 

Fed.R.Civ.P. 6. 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. 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. 

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