UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

UNITED STATES OF AMERICA )

)

 v. ) CAUSE NO.: 1:15-CR-36-TLS

) (CAUSE NO.: 1:18-CV-127)

RONDAY L. TINKER )

OPINION AND ORDER

The Defendant, Ronday L. Tinker, is serving an 84-month term of imprisonment after

being charged with, and pleading guilty to, one count of being a felon in possession of a firearm,

18 U.S.C. § 922(g)(1). This matter is before the Court on his Motion to Vacate, Set Aside, or

Correct a Sentence by a Person in Federal Custody [ECF No. 73], and on the Government’s

Opposition to Defendant’s Motion to Vacate [ECF No. 75].

The Defendant maintains that his sentence should be reduced to 57 months because his

trial counsel was ineffective “when he failed to support my argument to discredit a 4-level

enhancement under U.S.S.G. § 2K2.1(b)(6)(B) with obtainable Seventh Circuit case law in my

sentencing Brief that warrants a non-enhancement to petitioner’s sentence.” (Mot. 2–3.) In

essence, he claims that the proper case law would have convinced the Court that it could not rely

on his possession of Spice and marijuana to conclude that he engaged in another felony because

Spice is not a scheduled drug, and the amount of marijuana was a misdemeanor quantity.

For the reasons stated in this Opinion and Order, the Court finds that the files and records

of the case conclusively show that the Defendant is not entitled to habeas relief.
DISCUSSION

A. Habeas Standard of Review

Section 2255 allows a person convicted of a federal crime to seek to vacate, set aside, or

correct his sentence. This relief is available only in limited circumstances, such as where an error

is of jurisdictional or constitutional magnitude, or where there has been an error of law that

“constitutes a fundamental defect which results in a complete miscarriage of justice.” See Harris

v. United States, 366 F.3d 593, 594 (7th Cir. 2004). Motions to vacate a conviction or correct a

sentence ask a court to grant an extraordinary remedy to a person who has already had an

opportunity of full process. Kafo v. United States, 467 F.3d 1063, 1068 (7th Cir. 2006). A motion

under § 2255 “is neither a recapitulation of nor a substitute for a direct appeal.” Olmstead v.

United States, 55 F.3d 316, 319 (7th Cir. 1995). A court may deny a § 2255 motion without an

evidentiary hearing if “the motion and the files and records of the case conclusively show that

the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b). 

In seeking to prove that his counsel rendered ineffective assistance, as the Defendant

does here, he “bears a heavy burden.” Jones v. Page, 76 F.3d 831, 840 (7th Cir. 1996) (citation

omitted). To establish ineffective assistance of counsel, a defendant must show that: (1) his

attorney’s performance “fell below an objective standard of reasonableness,” Strickland v.

Washington, 466 U.S. 668, 688 (1984); and (2) 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 failure to establish either prong results in a denial of the ineffective assistance of counsel

claim.” Rastafari v. Anderson, 278 F.3d 673, 688 (7th Cir. 2002) (citation omitted). 

The performance prong requires the defendant to specifically identify acts or omissions

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that form the basis of his claim of ineffective assistance. Strickland, 466 U.S. at 690. Based on

the totality of the circumstances, the court must then determine whether the identified acts and

omissions fall outside the range of professionally competent assistance. Id. In assessing whether

counsel’s deficiency caused prejudice, the question is whether it is “reasonably likely” that the

outcome would have been different. Harrington v. Richter, 562 U.S. 86, 111 (2011) (quoting

Strickland, 466 U.S. at 696). “The likelihood of a different result must be substantial, not just

conceivable.” Id. (citing Strickland, 466 U.S. at 693).

B. The Defendant’s Claims Regarding the Sentencing Enhancement

The calculation of the Defendant’s Guideline sentence in the Presentence Investigation

Report (PSR) included a four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B), which

applies if a defendant convicted of an offense involving the unlawful possession of a firearm

“used or possessed any firearm or ammunition in connection with another felony offense.” The

Defendant, through counsel, lodged an objection to the PSR’s application of the enhancement.

Defense counsel asserted that there was not sufficient evidence to support the enhancement

unless the Court credited the statements of a particular witness, L.B. He also argued that the

quantity of drugs was not felony level. The Court conducted an evidentiary hearing.

In resolving the objection, the Court concluded that L.B. was a credible witness based on

her demeanor at the evidentiary hearing, and because her testimony was consistent with other

evidence presented. In particular, the Defendant was recorded telling L.B. over the phone to

“flush everything and get the straps out of the house” because the officers were coming to search

the house. Officers at the Defendant’s residence then observed L.B. placing a semi-automatic

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rifle and a 9mm handgun in the trunk of a car. Officers detained the vehicle before it could flee. 

The Court also noted that, even if L.B.’s testimony was disregarded, the physical

evidence was sufficient to support the enhancement. Just before the officers executed the search

warrant for the Defendant’s residence, officers saw the Defendant leaving his residence and

stopped him. The officers discovered a baggie down the front of his pants that contained 7 grams

of Spice. The Defendant was also carrying $4,421 in U.S. currency, but was unemployed. The

officers then executed the search warrant at the Defendant’s residence and located drug

paraphernalia, 5.7 grams of Spice, ammunition, and a scale. The presence of these items on the

Defendant’s person and in his residence would support Dealing in a Synthetic Drug or Synthetic

Drug Lookalike Substances, Ind. Code § 35-48-4-10.5(c)–(e) (stating that it is a Level 6 felony

for a person to possess with intent to deliver more than 5 grams of a synthetic drug or synthetic

drug lookalike substance, provided that there is more evidence than just the weight of the

substance).

In addition to the physical evidence that supported Dealing in a Synthetic Drug or

Synthetic Drug Lookalike Substances, L.B. testified that she lived in the residence with the

Defendant beginning in March 2015, and they both sold marijuana and Spice out of the house

every day for three months until the Defendant’s arrest in June 2015. Further, L.B. testified that

she and the Defendant used two scales to measure drugs for the sales. L.B. also testified that in

response to the Defendant’s instructions, she flushed two to three bags of marijuana and Spice

down the toilet–totaling a couple grams–and she knew that the bags contained these substances

due to her familiarity with them. The Court found that these additional facts presented through

L.B.’s testimony, in addition to the physical evidence found on the Defendant and in the

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residence, supported the felony offense of Maintaining Drug-Involved Premises, 21 U.S.C.

§ 856.

The Defendant does not specifically address the district court’s findings of fact or

conclusions of law, or indicate what counsel could have done differently to challenge the Court’s

findings and conclusions, except to note the Seventh Circuit’s opinion in United States v. Gates,

845 F.3d 310 (7th Cir. 2016). According to the Defendant, his counsel should have cited this

precedent. The Defendant was sentenced in September 2016. Gates was decided months later, in

January 2017. In any event, Gates would not have helped the Defendant. Although the Gates

case has an outcome the Defendant considers favorable, it is distinguishable on its facts. In

Gates, the court increased the defendant’s guideline range by four levels, pursuant to U.S.S.G. §

2K2.1(b)(6)(B), for possessing the firearm in connection with another felony offense, namely the

distribution of an illegal drug. 845 F.3d at 311. The alleged drug transactions involved a person

who did not have enough cash to pay for the synthetic marijuana he had just purchased, so he

offered to provide the defendant his firearm as collateral pending full payment for the drugs. Id.

The defendant then sold the gun for cash to satisfy the debt, leading to his federal gun charges.

Id. The court held that, in these circumstances, the gun did not facilitate the sale of the drugs. Id.

at 311–12 (noting the absence of any evidence that “had it not been for the collateral the

defendant would have cancelled his transaction with the buyer”). Additionally, there was no

evidence in the record that the synthetic marijuana that the defendant sold had been added to the

schedule of controlled substances and, thus, classified as illegal. Id. at 312.

Notably, this case involves not only Spice, but marijuana also, which is undisputably a

schedule I controlled substance. Additionally, the Court also identified the felony offenses of

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Dealing in a Synthetic Drug or Synthetic Drug Lookalike Substances and of Maintaining a DrugInvolved Premises, neither of which were mentioned in Gates. For sentencing purposes, the

Court found that the firearms facilitated these offenses because the evidence showed that the

Defendant kept the weapons in his living room couch in readily accessible positions. He kept the

semi-automatic rifle under one of the couch’s cushions and he kept the 9 mm handgun between

the arm of the couch and a cushion. According to L.B., the Defendant told her to use these

firearms if she had to. These findings place the Defendant’s case outside the decision in Gates. 

The Defendant also cites United States v. Szakacs, 212 F.3d 344 (7th Cir. 1999), as a case

that supported his objection, and about which trial counsel should have known. In Szakacs, the

court determined that the state offense of conspiracy to commit burglary, committed

simultaneously with the charged federal offense of conspiracy to steal firearms from a federally

licensed dealer, did not qualify as “another felony offense” for purposes of the § 2K2.1(b)(6)

enhancement. 212 F.3d at 351 (holding that a state offense that occurs contemporaneously with

the convicted federal offense cannot count as “another felony offense” for purposes of

§ 2K2.1(b)(6) unless the offense is “separated in time or by a distinction of conduct”). This

holding has no application to the Defendant’s case. The drug offenses upon which the

enhancement was based is not “essentially the same crime,” id. at 349, as the firearm offense.1

Rather, the drug offenses are separated by a distinction of conduct from the firearm offense.

Based on the foregoing, the Defendant has not shown that his counsel was deficient. His

submissions also fail to establish the prejudice prong. Not only did the Seventh Circuit uphold

1 Moreover, if this case had actually involved a burglary liked in the Szakacs case, amendments

that were made to the Guidelines in 2006 would have governed whether the enhancement applied, not

Szakacs. See United States v. Krumweide, 599 F.3d 785, 790 (7th Cir. 2010) (noting that sentencing court

correctly applied the enhancement in accordance with the amendment, rather than relying on Szakacs).

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application of the enhancement in this case, but the Court, at the time of sentencing, stated “that

it would have imposed the same sentence with or without the enhancement, because Mr.

Tinker’s other felony drug offenses deem his offense conduct significant regardless of its effect

on the guideline calculation.” (Plea Hr’g Tr. 15.) Accordingly, there is no reason to believe that

the Defendant would have been sentenced to fewer months of imprisonment had trial counsel

cited the cases identified in the Defendant’s Motion.

CERTIFICATE OF APPEALABILITY

Pursuant to Rule 11 of the Rules Governing Section 2255 Proceedings, the Court must

“issue or deny a certificate of appealability when it enters a final order adverse to the applicant.”

A certificate of appealability may be issued “only if the applicant has made a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); Rule 11 of Rules

Governing Section 2255 Proceedings. The substantial showing standard is met when “reasonable

jurists could debate whether (or, for that matter, agree that) the petition should have been

resolved in a different manner or that the issues presented were adequate to deserve

encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotation

marks omitted); Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983). Where the district court has

rejected the constitutional claim on the merits, “the showing required to satisfy § 2253(c) is

straightforward: The petitioner must demonstrate that reasonable jurists would find the district

court’s assessment of the constitutional claims debatable or wrong.” Slack, 529 U.S. at 484. A

defendant is not required to show that he will ultimately succeed on appeal. Miller-El v.

Cockrell, 537 U.S. 322, 337, 342 (2003) (stating that the question is the “debatability of the

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underlying constitutional claim, not the resolution of that debate”).

Rule 11(a) permits a district court to direct the parties to submit arguments on whether a

certificate of appealability should issue. Additional argument is not necessary here because no

reasonable jurist could conclude that the Court’s assessment of the Sixth Amendment claim

regarding counsel’s assistance during sentencing was debatable or wrong. The Court will not

issue the Defendant a certificate of appealability.

CONCLUSION

For the reasons stated above, the Court DENIES the Defendant’s Motion to Vacate [ECF

No. 73], and declines to issue a certificate of appealability.

SO ORDERED on August 13, 2018.

 s/ Theresa L. Springmann 

CHIEF JUDGE THERESA L. SPRINGMANN

UNITED STATES DISTRICT COURT

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