               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 14a0240n.06

                                          No. 12-6141
                                                                                     FILED
                         UNITED STATES COURT OF APPEALS                        Mar 31, 2014
                              FOR THE SIXTH CIRCUIT                        DEBORAH S. HUNT, Clerk


DEMARCUS ROGERS,                                        )
                                                        )
       Petitioner-Appellant,                            )       ON APPEAL FROM THE
                                                        )       UNITED STATES DISTRICT
              v.                                        )       COURT FOR THE WESTERN
                                                        )       DISTRICT OF TENNESSEE
UNITED STATES OF AMERICA,                               )
                                                        )
       Respondent-Appellee.                             )
                                                        )




BEFORE: KEITH, SILER, and ROGERS, Circuit Judges.

       ROGERS, Circuit Judge. DeMarcus Rogers appeals the district court’s denial of his

motion for post-conviction relief under 28 U.S.C. § 2255. Rogers pled guilty to being a felon in

possession of a firearm and was sentenced to 327 months of imprisonment. His sentence was

based on a guideline range that included a four-level enhancement for use of the weapon in

connection with another felony, attempted murder. Rogers argues that his sentencing counsel

provided ineffective assistance when she failed to make a self-defense argument with respect to

the attempted murder, and that the district court should have conducted an evidentiary hearing on

this claim. Rogers also argues that judicial fact-finding on the relevant conduct enhancement

violated the Sixth Amendment. Rogers has not sufficiently demonstrated deficient performance
No. 12-6141, Rogers v. United States


or prejudice, and the district court did not abuse its discretion in declining to conduct an

evidentiary hearing before denying § 2255 relief.

       In 2006, Rogers pled guilty to being a felon in possession of a firearm, under 18 U.S.C.

§ 922(g), and was sentenced to 327 months of imprisonment and 3 years of supervised release.

The conviction arose from a shooting that Rogers admitted. On June 29, 2004, after an argument

at a personal residence, Rogers shot Rico Coats four times at close range while Coats was

unarmed. One bullet also went through the hand of another unarmed individual trying to break

up the fight between Rogers and Coats. Coats escaped in a car, and Rogers continued to shoot at

the car while it drove away. The day after the shooting, the police arrested Rogers and found a 9

millimeter pistol in his car; Rogers admitted possessing the pistol and shooting Coats, and stated

that he had acted in self-defense.

       Rogers’s Presentence Investigation Report (PSR), prepared by the Probation Office using

the 2004 edition of the Guidelines manual, indicated a base offense level of 24, because Rogers

had two prior convictions for crimes of violence.         The PSR recommended a four-level

enhancement for using a firearm in connection with another felony. Application note 4 to

U.S.S.G. § 2K2.1 states that a felony offense “as used in subsection (b)(5), means any offense

(federal, state, or local) punishable by imprisonment for a term exceeding one year, whether or

not a criminal charge was brought, or conviction obtained.”           United States Sentencing

Commission, Guidelines Manual § 2K2.1, comment. (n.4) (2004) (emphasis added). The PSR

cross-referenced to the guideline provision for attempted murder, U.S.S.G. § 2A2.1, because “the

object of the offense committed by the defendant on June 29, 2004, would have constituted an


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No. 12-6141, Rogers v. United States


assault with intent to commit murder.” The cross-reference adjusted the base offense level to 33,

after which four levels were added because the victim, Coats, sustained life-threatening bodily

injury, and three levels were subtracted for acceptance of responsibility pursuant to U.S.S.G.

§ 3E1.1(a),(b). The PSR calculated Rogers’s total offense level to be 34, with a criminal history

category of VI, and an advisory guideline imprisonment range of 262 to 327 months. Rogers

also qualified as an armed career criminal under 18 U.S.C. § 924(e), which meant that the

statutory sentencing range was 15 years to life.

       At Rogers’s sentencing hearing, the Government presented evidence, called three

witnesses, and recommended a sentence at the high end of the guideline range. Rogers’s

attorney asked questions of each witness and attempted to establish that the shooting occurred on

June 29, 2004, the day before Rogers was arrested in possession of a firearm. She also sought to

clarify that when Rogers was arrested, the firearm was not on his person but rather in his vehicle.

The district court adopted the guideline range in the PSR and sentenced Rogers to 327 months.

This Court rejected Rogers’s claims on direct appeal and affirmed his sentence, and the Supreme

Court denied Rogers’s petition for a writ of certiorari. See United States v. Rogers, 261 F. App’x

849 (6th Cir.), cert. denied, 553 U.S. 1046 (2008).

       On April 13, 2009, Rogers moved to vacate his sentence, in a pro se motion filed

pursuant to 28 U.S.C. § 2255. Rogers argued that the district court erred when it applied the 4-

level enhancement for relevant conduct in the instant case, based on the PSR, when the




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No. 12-6141, Rogers v. United States


Government could have instead charged Rogers with first degree murder or attempted murder.1

Rogers also asserted that the district court should not have sentenced him as an armed career

criminal, and that the court improperly applied the Federal Sentencing Guidelines. Finally,

Rogers argued that his attorney during the plea and sentencing phase was ineffective for not

arguing self-defense and not contesting the facts underlying the attempted murder cross-

reference or his status as an armed career criminal.

        The district court denied Rogers’s motion to vacate, denied Rogers’s motion to amend his

§ 2255 motion, declined to issue a certificate of appealability, and dismissed the case on July 26,

2012. The district court determined that the sentencing court correctly considered Rogers’s prior

violent felony convictions and Rogers’s relevant conduct in connection with his firearm

possession (assault with intent to commit murder). The court also concluded that Rogers’s

attorney “was not ineffective by failing to raise [Rogers’s] frivolous [defense to the relevant

conduct enhancement] issue at sentencing,” and thus Rogers could not establish deficient

performance or prejudice. Rogers then requested a certificate of appealability as to all issues

raised in his motion to vacate and his motion to amend, which was granted by this court on

March 5, 2013.

        Because Rogers has not demonstrated deficient performance by counsel at sentencing or

prejudice resulting from the alleged deficiencies, the district court correctly denied Rogers’s

§ 2255 motion. “In reviewing the denial of a 28 U.S.C. § 2255 petition, this Court applies a de

novo standard of review of the legal issues and will uphold the factual findings of the district
        1
          Rogers’s motion also challenged the consideration of his prior violent felony convictions. The
handwritten portion of Rogers’s § 2255 motion conflates his argument on this point with the separate argument that
remains contested on appeal, namely the relevant conduct enhancement.

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No. 12-6141, Rogers v. United States


court unless they are clearly erroneous.” Hilliard v. United States, 157 F.3d 444, 447 (6th Cir.

1998). A petitioner asserting an ineffective assistance of counsel claim must show: (1) deficient

performance by counsel, and (2) prejudice resulting from that deficient performance. Strickland

v. Washington, 466 U.S. 668, 687 (1984). Prejudice requires “a reasonable probability that, but

for counsel’s unprofessional errors, the result of the proceeding would have been different.”

Strickland, 466 U.S. at 694. Rogers asserts that he was prejudiced at his sentencing hearing

because his counsel refused to argue or put forth evidence that he shot Coats in self-defense, and

thereby declined to put forth a reasonable defense at the sentencing stage.         However, no

reasonable probability exists that arguing self-defense would have affected the outcome of the

sentencing procedure, in light of the strong evidence indicating otherwise. Rogers admitted the

shooting in a police statement and has not offered evidence or even a theory to explain how

repeatedly shooting two unarmed individuals at close range could be construed as self-defense.

Evidence at sentencing included the following: unchallenged testimony that Coats was unarmed

and Rogers shot Coats once in the side, once in the stomach, and twice in the thigh (including

shots at close range after Coats had fallen and was lying on the ground), testimony that Rogers

shot another unarmed individual, who had been trying to break up the fight between Rogers and

Coats, and testimony that Rogers shot at the vehicle in which Coats left the scene. To establish

an ineffective assistance of counsel claim, a petitioner must overcome the “‘strong presumption’

that counsel’s representation was within the ‘wide range’ of reasonable professional assistance.”

Harrington v. Richter, 131 S. Ct. 770, 787 (2011) (citing Strickland, 466 U.S. at 689). Rogers




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No. 12-6141, Rogers v. United States


has not met this threshold. In sum, the district court correctly determined that Rogers did not

demonstrate ineffective assistance of counsel under Strickland.

       Furthermore, the district court did not abuse its discretion by declining to conduct an

evidentiary hearing on Rogers’s § 2255 motion. This Court reviews a district court’s decision

not to have an evidentiary hearing on a § 2255 motion for abuse of discretion. See Campbell v.

United States, 686 F.3d 353, 357 (6th Cir. 2012). “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. (quoting

Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999)). On appeal, Rogers argues that

the motion and records in this case did not conclusively show that Rogers is not entitled to relief

on his ineffective assistance of counsel claim. Yet “[i]f it plainly appears from the motion, any

attached exhibits, and the record of prior proceedings that the moving party is not entitled to

relief, the judge must dismiss the motion.” Rules Governing § 2255 Cases, Rule 4(b); Davila v.

United States, 258 F.3d 448, 450 n.2 (6th Cir. 2001). Here, the evidence presented at Rogers’s

sentencing compels rejection of his conclusory self-defense argument. On appeal, Rogers has

not developed his self-defense argument or challenged the aforementioned evidence. Therefore,

the district court did not abuse its discretion by concluding that it plainly appeared that Rogers

was not entitled to relief and declining to conduct an evidentiary hearing.


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No. 12-6141, Rogers v. United States


       Finally, the district court did not violate Rogers’s Sixth Amendment right to a trial by

jury when it applied a cross-reference to the attempted murder guidelines provision. Rogers

claims that the Supreme Court’s recent holdings in Alleyne v. United States and Peugh v. United

States combine to prevent sentencing courts from engaging in judicial fact-finding that affects

the guidelines calculations and “creates a significant risk that the defendant will be denied his

Sixth Amendment rights.” See Alleyne v. United States, 133 S. Ct. 2151 (2013); Peugh v. United

States, 133 S. Ct. 2072 (2013). However, the constitutional rules of criminal procedural adopted

in Alleyne and Peugh are not applicable on collateral review of Rogers’s sentence, because the

judgment became final before the Court’s decisions in Alleyne and Peugh. See Teague v. Lane,

489 U.S. 288, 310–11 (1989) (plurality opinion). Even if Alleyne and Peugh were retroactively

applicable to this case, they do not require that every fact giving rise to the cross-reference in

Rogers’s guidelines calculation be submitted to a jury and found beyond a reasonable doubt.

Because the federal sentencing guidelines are advisory, rather than mandatory, see Peugh, 133 S.

Ct. at 2080 (citing United States v. Booker, 543 U.S. 220, 259–260, 264 (2005)), judicial

factfinding that affects the guidelines calculation does not fit within the category of facts

required under Alleyne to be found by a jury beyond a reasonable doubt.

       For the foregoing reasons, we affirm the district court’s decision.




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