UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

TONYO POWELL, : Case No. 1:18-cr-61

: (1:20-cv-138) 

Petitioner, : 

: 

v. : Judge Michael R. Barrett

: 

UNITED STATES OF AMERICA, : 

: 

Respondent. : 

OPINION & ORDER

This matter is before the Court upon Petitioner Tonyo Powell’s Motion to Vacate, 

Set Aside, or Correct Sentence by a Person in Federal Custody under 28 U.S.C. § 

2255. (Doc. 36). The Government filed a Response in Opposition. (Doc. 40). 

I. BACKGROUND

Petitioner was indicted on the following charges: four counts of possession with

intent to distribute in violation of 21 U.S.C. § 841(a)(1) (Counts 1-4); one count of 

possession of a firearm by a prohibited person in violation of 18 U.S.C. § 922(g)(1) (Count 

5); and one count of possession of a firearm in furtherance of an offense in violation of 18 

U.S.C. § 924(c) (Count 6). (Doc. 1). Petitioner pled guilty to Count Six of the Indictment. 

(Doc. 18). The Court sentenced Petitioner to an eighty-month term of incarceration, 

which was the agreed-upon sentence in the Plea Agreement. (Docs. 17, 26). The Court 

also sentenced Defendant to three years of supervised release following the term of 

incarceration and a mandatory $100.00 special assessment. (Id.) The Court dismissed 

Counts through Five. (Doc. 25). Petitioner did not file an appeal. 
2 

Petitioner sets forth one ground for relief in his petition under 28 U.S.C. § 2255. 

Petitioner argues that his trial counsel was ineffective because she “failed to object that I 

should have been sentenced under 922g [sic] instead of 924(c) because there’s no crime 

of violence or no drug trafficking crime to support the 924(c) charge.” (Doc. 36, PageID 

97). Petitioner also maintains that his § 924(c) charge cannot stand because the Court 

dismissed the underlying drug trafficking offenses. 

III. ANALYSIS

A. Standard of review

A prisoner seeking relief under 28 U.S.C. § 2255 must allege either “(1) an error

of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an 

error of fact or law that was so fundamental as to render the entire proceeding invalid.” 

Mallett v. United States, 334 F.3d 491, 496-97 (6th Cir. 2003) (citing Weinberger v. U.S., 

268 F.3d 346, 351 (6th Cir. 2001), cert. denied, 535 U.S. 967). 

“In reviewing a § 2255 motion in which a factual dispute arises, ‘the habeas court 

must hold an evidentiary hearing 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)). However, no hearing is required “if the 

petitioner's allegations cannot be accepted as true because they are contradicted by the 

record, inherently incredible, or conclusions rather than statements of fact.” Id. 

A. Ineffective assistance of counsel

A petitioner claiming ineffective assistance of counsel must show that his 

attorney’s performance was so inadequate as to violate his Sixth Amendment rights. 

Strickland v. Washington, 466 U.S. 668, 687 (1984). Strickland’s two-part test governs 
3 

claims of ineffective assistance of counsel. Under the first or “performance” prong, the 

petitioner must show that his counsel’s representation “fell below an objective standard 

of reasonableness.” Id. at 688. However, a court considering a claim of ineffective 

assistance must “indulge a strong presumption that counsel's conduct falls within a wide 

range of professional assistance; that is, the defendant must overcome the presumption 

that, under the circumstances, the challenged conduct might be considered sound trial 

strategy.” Id. at 689. Under the second or “prejudice” prong, the petitioner must 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. “Even though sentencing 

does not concern the defendant's guilt or innocence, ineffective assistance of counsel 

during a sentencing hearing can result in Strickland prejudice because ‘any amount of 

[additional] jail time has Sixth Amendment significance.’” Lafler v. Cooper, 566 U.S. 156, 

165, 132 S. Ct. 1376, 1386, 182 L. Ed. 2d 398 (2012) (quoting Glover v. United States, 

531 U.S. 198, 203, 121 S.Ct. 696, 148 L.Ed.2d 604 (2001)).

As the Government points out, Petitioner pled guilty to violation of 18 U.S.C. § 

924(c), not a violation of 18 U.S.C. § 922(g). To the extent that Petitioner argues that he 

should have been sentenced under 18 U.S.C. § 922(g) and not 18 U.S.C. § 924(c)

because the underlying drug trafficking offenses were dismissed, the Sixth Circuit has 

held that a defendant can be convicted under § 924(c) in the absence of any conviction 

of an underlying drug offense. See United States v. Helton, 86 F. App'x 889, 892 (6th 

Cir. 2004) (“It is not necessary for [the defendant] to have been convicted of the drug 

trafficking offense on which a § 924(c) charge is predicated”); United States v. Ospina, 

18 F.3d 1332, 1336 (6th Cir. 1994) (“To establish the required predicate, the fact of the 
4 

offense rather than a conviction is all that is necessary.”). Because this claim lacks merit, 

counsel did not perform ineffectively by failing to raise the argument. See Rashad v. 

Lafler, 675 F.3d 564, 571 (6th Cir. 2012); see also Coley v. Bagley, 706 F.3d 741, 752 

(6th Cir. 2013) (“Omitting meritless arguments is neither professionally unreasonable nor 

prejudicial.”); Mapes v. Coyle, 171 F.3d 408, 427 (6th Cir. 1999) (“Counsel could not be 

unconstitutionally ineffective for failing to raise these meritless arguments.”).1

Therefore, it was not ineffective assistance of counsel for Petitioner’s attorney to 

object at sentencing on this basis.

IV. CONCLUSION

Pursuant to Title 28 U.S.C. § 2255, the Court finds that the motions, files, and

records of this case conclusively show that Petitioner is not entitled to relief. Therefore, 

a hearing is not necessary to determine the issues and make the findings of fact and 

conclusions of law with respect thereto. Smith v. United States, 348 F.3d 545, 550-51 

(6th Cir. 2003). The claims raised are conclusively contradicted by the record and the 

well-settled law of the Sixth Circuit and the United States Supreme Court. 

Accordingly, Petitioner Tonyo Powell’s Motion to Vacate, Set Aside, or Correct 

Sentence by a Person in Federal Custody under 28 U.S.C. § 2255 (Doc. 36) is DENIED. 

Further, the Court will not issue a certificate of appealability. The Court concludes 

that none of the claims raised by Petitioner in his motion, which have been decided on 

the merits, are debatable among reasonable jurists, could be resolved differently on 

appeal or are adequate to deserve encouragement to proceed further. Slack v. McDaniel, 

1

Moreover, the Government explains that under 18 U.S.C. § 922(g), Petitioner would 

have been subject to 100-125 months’ incarceration, a range higher than the sentence the 

parties agreed upon and the sentence the Court imposed. (Doc. 40, PageID 115-16).
5 

529 U.S. 473, 483-84 (2000) (citing Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)). 

In addition, Petitioner has not made a substantial showing of the denial of a constitutional 

right. See 28 U.S.C. § 2253(c); see also Fed. R. App. P. 22(b). 

IT IS SO ORDERED. 

/s/ Michael R. Barrett

Michael R. Barrett, Judge

United States District Court