Opinion and Order Denying Defendant’s Motions under 28 U.S.C. § 2255 — No. 4:21-cr-20331 (Dkt. 195, E.D. Mich.)
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Opinion and order of August 10, 2026 by Judge F. Kay Behm in the U.S. District Court for the Eastern District of Michigan, United States v. Antonio Lynn Fluker, Jr., case 4:21-cr-20331, ECF No. 195, denying his motions under 28 U.S.C. § 2255. The opinion recites that Fluker pleaded guilty to wire fraud (Count 1) and money laundering (Count 14) under a Rule 11(c)(1)(C) plea agreement for an agreed sentence of 135 months, with conduct the presentence report describes as including pandemic loan fraud. The court treats ECF No. 180 as the operative motion and denies it because he shows neither deficient performance nor prejudice, procedurally defaulted his claims, and waived them in his plea agreement. It denies a certificate of appealability and the motion to compel discovery (ECF No. 194), and orders a supplemental government response on return of property.
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“Opinion and Order Denying Defendant’s Motions under 28 U.S.C. § 2255 — No. 4:21-cr-20331 (Dkt. 195, E.D. Mich.).”
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Case 4:21-cr-20331-FKB-CI ECF No. 195, PageID.1364 Filed 08/10/26 Page 1 of 47
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
THE UNITED STATES OF Criminal Case Nos. 21-20331
AMERICA, 11-20631
09-20614
Plaintiff,
v. Civil Case Nos. 25-cv-10611
25-cv-10612
ANTONIO LYNN FLUKER, JR., 25-cv-10609
Defendant. Hon. F. Kay Behm
___________________________ / United States District Judge
OPINION AND ORDER DENYING DEFENDANT’S MOTIONS
UNDER 28 U.S.C. § 2255
Defendant Antonio Lynn Fluker, Jr. has submitted a motion
under 28 U.S.C. § 2255 raising a laundry list of complaints that he
characterizes as claims of ineffective assistance of counsel. As set forth
below, Fluker’s motion at Criminal Case No. 21-20331, ECF No. 180 is
deemed the operative motion, and that motion is denied because he fails
to establish either prejudice or deficient performance by counsel,
because he procedurally defaulted on his claims by failing to raise them
on direct appeal, and because his claims were waived by the valid
appeal and collateral review waivers contained in his plea agreement.
1
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No evidentiary hearing is required and no certificate of appealability
will be issued.
As a result, Fluker’s motion to compel discovery (ECF No. 194) is
denied, and the court requires a supplemental brief from the
Government regarding Fluker’s motion for return of property (ECF No.
190).
I. FACTUAL AND PROCEDURAL HISTORY
As set forth in the Presentence Report and plea agreement in Case
No. 21-cr-20331 (ECF No. 131, 146), 1 Fluker engaged in an extensive
course of fraudulent conduct between the time when he began his
supervised release in 2018 until the time of his arrest in 2021. This
conduct included pandemic loan fraud, bank fraud, and identity theft,
amounting to millions of dollars in losses.
At the time of this fraudulent conduct, Fluker was under
supervised release for two prior federal convictions involving fraud in
case numbers 09-cr-20614 and 11-cr-20631. Supervised release
violation petitions were filed in those two cases, as well as new charges
1
Except as otherwise noted, the court uses the ECF numbers from the most
recent criminal case, Case No. 21-cr-20331. Any document from one of the earlier
cases is denoted first by the case number.
2
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for fraud in 21-cr-20331. Additional background on Fluker’s 2009 and
2011 cases are also set forth in Fluker’s presentence report in his 2011
case. See ECF No. 146, PageID.910-913.
Fluker pleaded guilty in case number 21-cr-20331 to wire fraud
(Count 1) and money laundering (Count 14) pursuant to a Rule
11(c)(1)(C) plea agreement to an agreed sentence of 135 months. ECF
No. 131, PageID.731, 746; ECF No. 165, PageID.1029, 1045. His plea
agreement contained a detailed statement of facts that were agreed
between the parties. ECF No. 131, PageID.734-739. In addition,
although the parties agreed to a set term of 135 months of
imprisonment, Fluker agreed to recommend the application of certain
guidelines enhancements, including 2B1.1(b)(1)(I) for loss of more than
$1,500,000 and less than $3,500,000; and 2B1.1(b)(17)(A) for deriving
more than $1,000,000 in gross receipts as a result of the offense. Id. at
PageID.744-745. He also agreed not to take any positions on the
guidelines that were inconsistent with these recommendations, and
that he had no right to withdraw from the agreement based on the
court’s guidelines findings. Id.
3
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Fluker also agreed that there were 12 identified victims in this
case: the U.S. Treasury, banks B-1, B-2, B-3, B-4, B-5, B-6, and B-7, and
victims V-1, V-2, V-3, and V-4. Id. at PageID.734-739, 748; ECF No.
165, 1029-1038. He also agreed to pay restitution to each of these
identified victims, with the court to determine the amounts that they
were owed at sentencing. ECF No. 131, PageID.748. He further agreed
that restitution would be due and payable immediately after judgment
was entered, and subject to immediate enforcement. Id. He also agreed
to the entry of a $2,500,000 money judgment against him, the forfeiture
of specific identified amounts, the entry of a preliminary order of
forfeiture with respect to these amounts, and the forfeiture of his
personal property as substitute assets. Id. at PageID.749-754. Fluker
also waived “any right he may have to appeal his conviction on any
grounds,” and if his sentence of imprisonment did not exceed 135
months, then he also waived his right to appeal his sentence on any
grounds. Id. at PageID.754. Additionally, Fluker waived his right to
raise claims challenging his conviction or sentence on collateral review
under 28 U.S.C. § 2255, except for claims of ineffective assistance of
4
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counsel, prosecutorial misconduct, or with respect to compassionate
release claims. Id. at PageID.754-755.
At his plea hearing, the government stated the factual basis from
the plea agreement, including regarding the number of victims, on the
record. ECF No. 165, PageID.1031-1036. And the government also
orally placed on the record the court’s obligation to order restitution to
every identifiable victim of the defendant’s offenses, including the same
banks and victims listed in the plea agreement. Id. at PageID.1038.
Fluker affirmed multiple times at his plea hearing that he agreed
with the factual basis in his plea and with the information placed on the
record by the government during the hearing. For instance, after the
government proffered the factual basis and plea terms on the record,
the following exchange took place:
COURT: […] Mr. Fluker, was that a complete and
accurate recitation of your plea agreement?
FLUKER: Yeah.
[…]
COURT: Is there anything that surprised you
about what [the government] said?
FLUKER: Not really.
5
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COURT: Those are all terms that you discussed
at length with your attorneys?
FLUKER: Yeah.
ECF No. 165, PageID.1040.
Later in the proceeding, Fluker again affirmed his agreement with
the facts alleged in the plea agreement and at the plea hearing:
COURT: Mr. Mihas, would you establish in your
client’s own testimony the factual basis […]? […]
MIHAS: Your Honor, we’re willing to stipulate to
the recitation that the Government made.
[…]
COURT: Mr. Fluker, you’re willing to stipulate to
the factual basis as stated in the plea agreement?
FLUKER: Yeah.
[…]
GOV’T: Mr. Fluker, did you hear me read the
factual basis here today?
FLUKER: Yeah, I did.
GOV’T: Is that a fair, true and accurate
description of the offenses?
FLUKER: Yes. It’s in the agreement. Yeah.
Id., PageID.1046.
Based on the entirety of the plea proceedings, this court accepted
Fluker’s guilty pleas, finding that Fluker was fully competent and
6
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capable of entering an informed plea, that he was aware of the nature of
the charges and the consequences of the plea, and that his plea was
knowing and voluntary and supported by an independent factual basis
containing the essential elements of each offense. Id. at PageID.1047.
Fluker was sentenced on March 19, 2024 pursuant to his Rule 11
plea agreement to the agreed term of 135 months’ imprisonment, which
was divided into a sentence of 135 on Count 1 and 120 months
concurrent on Count 14. See ECF No. 161, p.3-24; ECF No. 157. The
court also sentenced Fluker to 3 years of supervised release, entered the
money judgment in the amount of $2,500,000 and forfeiture as agreed
in Fluker’s plea agreement, and ordered specified amounts of
restitution to the six victims who made restitution claims. ECF No.
157. Fluker also entered guilty pleas in his supervised release cases on
March 19, 2024, and he was sentenced to 24 months on each case, to be
served concurrently with each other and with his 135-month sentence
in his 2021 case. ECF No. 161, p.24-37.
Fluker first filed but then voluntarily dismissed his appeal to the
Sixth Circuit. See ECF No. 169.
II. STANDARD OF REVIEW
7
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A. Procedural Default
The general rule is that claims not raised on direct appeal may not
be raised on collateral review unless the defendant shows cause and
prejudice. Massaro v. United States, 538 U.S. 500, 504 (2003). For
example, a challenge to the voluntary and knowing nature of a guilty
plea must ordinarily be raised on direct appeal. Bousley v. United
States, 523 U.S. 614, 621 (1998). If a defendant fails to raise this issue
on direct appeal, he may seek collateral review only if he establishes
either cause and prejudice for his procedural default or actual
innocence. Id. at 622-23; see also Hunter v. United States, 146 S. Ct.
1702, 1708 (2026) (courts can consider whether to not enforce an appeal
waiver on direct appeal if it finds a “miscarriage of justice” would
otherwise result).
One exception is that general rule is that an ineffective-
assistance-of-counsel claim may be brought in a collateral proceeding
under § 2255, whether or not the defendant could have raised the claim
on direct appeal. Massaro, 538 U.S. at 504. However, attempting to
“recast” a sentencing dispute as ineffective assistance of counsel is
generally not permitted. United States v. Calderon, No. 98-1336, 1999
8
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U.S. App. LEXIS 24307, at *10 (6th Cir. Sep. 27, 1999). If it were
otherwise, “then every sentencing dispute not raised on appeal could be
repackaged in this fashion and thus frustrate the lawful process for
correcting judicial errors that a direct appeal provides.” Id. Instead,
Defendants must assert their claims in the ordinary course of trial and
direct appeal. Id. (quoting citation omitted); see also, e.g., Grant v.
United States, 72 F.3d 503, 505 (6th Cir. 1996) (“[N]onconstitutional
errors, such as mistakes in the application of the sentencing guidelines .
. . ordinarily are not cognizable on collateral review.”); Regalado v.
United States, 334 F.3d 520, 528 (6th Cir. 2003) (“In the case where the
defendant has failed to assert his claims on direct appeal and thus has
procedurally defaulted, in order to raise them in a § 2255 motion he also
must show either that (1) he had good cause for his failure to raise such
arguments and he would suffer prejudice if unable to proceed, or (2) he
is actually innocent.”).
B. Standard for Ineffective Assistance
A defendant has a Sixth Amendment right to “reasonably effective
assistance” of counsel. Strickland v. Washington, 466 U.S. 668, 687
(1984). A defendant must prove two things to establish a claim of
9
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ineffective assistance. Id. “First, the defendant must show that
counsel’s performance was deficient. This requires showing that
counsel made errors so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id.
Judicial scrutiny of counsel’s performance under this prong is “highly
deferential” and requires the court to find “in light of all the
circumstances,” that counsel’s performance was “outside the wide range
of professionally competent assistance.” Id. at 689‒90. But “[a] fair
assessment of attorney performance requires that every effort be made
to eliminate the distorting effects of hindsight.” Id. at 690.
Second, the defendant must show that his attorney’s “deficient
performance prejudiced the defense.” Strickland, 466 U.S. at 687. To
establish prejudice in the guilty plea context, a defendant must show “a
reasonable probability that, but for counsel’s errors, he would not have
pleaded guilty and would have insisted on going to trial.” Hill v.
Lockhart, 474 U.S. 52, 59 (1985). The test “is objective, not subjective”
and to obtain relief “a petitioner must convince the court that a decision
to reject a plea bargain would have been rational under the
circumstances.” Pilla v. United States, 668 F.3d 368, 373 (6th Cir.
10
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2012); see also United States v. Singh, 95 F.4th 1028, 1033 (6th Cir.
2024). And to do so, a defendant must “point to evidence
contemporaneous with his plea showing it’s reasonably likely” he would
have rejected the plea and gone to trial. Singh, 95 F.4th at 1033 (citing
Lee v. United States, 582 U.S. 357, 369 (2017)). “[O]nly in ‘unusual
circumstances’ will a defendant who conceded guilt at the plea stage be
able to meet this ‘high bar.’” Id. at 1033–34 (quoting Lee, 582 U.S. at
368–69). Because both prongs must be met to establish ineffective
assistance of counsel, a failure by the defendant to establish either
prong is sufficient grounds to deny the claim.
III. ANALYSIS
Fluker filed his motions under § 2255 in all three of his criminal
cases, 21-20331, 11-20631 and 09-20614, but the documents are
identical. Because the motions are evidently intended to apply to each
conviction and sentence on equal terms, the court’s analysis applies
across each case.
A. Operative Motion
First, there is a question of which motion the court ought to
consider. Fluker filed a motion first at ECF No. 173. But he then filed
11
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an amended motion at ECF No. 180. So his first motion is moot and is
denied on the basis that Fluker overrode it with his “amended” motion.
The United States responded to that amended motion (ECF No. 184),
and Fluker later filed a reply (ECF No. 189). But before Fluker filed his
reply, he also filed a second “amended” 2255 motion. ECF No. 186.
This document is best construed as a motion to amend his § 2255
motion for a second time.
Motions to amend a § 2255 motion turn on the policies of
encompassed in Federal Rules of Civil Procedure. See 28 U.S.C. § 2242
(explaining that an application for a writ of habeas corpus “may be
amended or supplemented as provided in the rules of procedure
applicable to civil actions”). A court acts within its discretion in
denying leave to amend an “amended” § 2255 motion on account of
undue delay – including delay resulting from a failure to incorporate
previously available evidence – and ought to pay particular attention to
the movant’s explanation for their delay. See Leisure Caviar, LLC v.
United States Fish & Wildlife Serv., 616 F.3d 612, 616 (6th Cir. 2010)
(internal citations omitted); Cornell, 2025 LX 666395, at *5 (applying
these standards to a § 2255 motion); Oleson v. United States, 27 F.
12
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App’x 566, 568 (6th Cir. 2001) (same). The court may also consider
“undue prejudice to the opposing party by virtue of allowance of the
amendment.” Cornell, 2025 LX 666395, at *6 (citing Foman v. Davis,
371 U.S. 178, 182 (1962)); Oleson, 27 F. App’x at 569.
First, Fluker has already amended his motion once as a matter of
course, consistent with Rule 15(a). See Oleson, 27 F. App’x at 568; ECF
Nos. 173, 180. But Fluker offers no explanation for the necessity of this
second amendment to his motion, brought only after the United States
had responded in detail to his first amended motion. He also offers no
explanation for the substantial delay between his first amended motion
(filed June 18, 2025) and his second (filed September 3, 2025). The
Government would be unduly prejudiced by permitting this second
amendment because the court would otherwise require this matter to be
re-briefed on the amended motion, but there is no reason for that time
and energy to be spent pursuing this matter given no explanation from
Mr. Fluker why his first amended motion was deficient or why
permitting amendment would be just under the circumstances. Nor, in
his reply brief to his first amended motion, does Fluker raise the issue
at all other than to mention that he filed a “supplemental” amended
13
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motion – again failing to explain the relevance of that “supplement” or
what claims it added or modified. The court therefore finds both undue
delay as well as undue prejudice to the opposing party, finds that
Fluker forfeited argument on this point by failing to raise it beyond a
conclusory reference in his subsequent reply brief (filed after his second
amended petition), and denies Fluker leave to amend his motion a
second time. ECF No. 186, construed as a motion for leave to amend, is
denied on that basis, and that leaves ECF No. 180 (the first amended
motion) as the operative pleading.
With that in mind, Fluker’s subsequent motion to compel
production of discovery material (ECF No. 194) is also denied. That
motion is premised entirely on the idea that Fluker needs the requested
materials to “[t]o properly research, prepare, and present evidence in
support of the[] ineffective assistance claims” in his § 2255 motion. ECF
No. 194, PageID.1358. What he actually means, then, is that he
intends to at some point file a third amended motion under § 2255. The
court, however, finds that it can resolve his arguments on the motion as
presented, so no factual development is necessary, and in any event the
court would not permit such an untimely third amendment.
14
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B. Analysis
Fluker raises ten separate issues in his amended motion. ECF
No. 180. The Government reorganizes those claims into four basic
groups, a categorization the court largely adopts. The section below
addresses Fluker’s § 2255 claims in four broad categories: first, his
knowing and voluntary waiver of his appeal rights and entry of his plea
(Claim H); second, his guidelines calculations (Claims A, B, C, and J);
third, matters relating to forfeiture and restitution (Claims D, F, and
G); and fourth, his remaining complaints regarding his sentencing
(Claims E and K).
On a § 2255 motion, 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). The record
here conclusively demonstrates that the petitioner is not entitled to
relief, so no evidentiary hearing is necessary.
i. Appeal Waivers (Claim H)
As a threshold issue, Fluker tries to establish that his plea was
not knowing or voluntary. ECF No. 180, PageID.1156. That claim, and
related claims related to the validity of his plea agreement, was
15
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procedurally defaulted because he failed to raise it on direct appeal. See
Bousley v. United States, 523 U.S. 614, 621 (1998). Fluker has not
attempted to show cause and prejudice. Even were the court to reach
the merits, Fluker’s plea colloquy confirms that Fluker knew the appeal
and collateral review waivers were a part of his plea agreement, that he
understood their nature and application, that he had had all the time
needed to consult with his attorney prior to the plea, and that he
nonetheless wished to plead guilty pursuant to the agreement. ECF No.
165, PageID.1038-1044.
To the extent that Fluker claims that his plea agreement is
invalid due to ineffective assistance of counsel, the court turns to those
issues. He argues that counsel should have objected to his plea
agreement on the basis of his appeal waiver being invalid on its face,
but appeal waivers are generally valid and enforceable. See United
States v. Toth, 668 F.3d 374, 377 (6th Cir. 2012) (appeal waivers valid
absent certain defined exceptions); cf. Hunter v. United States, 146 S.
Ct. 1702, 1712 (2026) (appeal waivers generally enforceable except for
certain conditions, or if enforcement would produce a “miscarriage of
justice”). Although he challenges the scope of his waivers as
16
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“overbroad” and “contrary to the sound administration of justice,” such
arguments are frequently rejected by the Sixth Circuit. United States v.
Elam, No. 25-1691, 2026 LX 316715, at *3 (6th Cir. June 16, 2026)
(“[W]e routinely enforce broad appellate waivers.’) (citing Toth, 668 F.3d
at 378-790). Counsel was not ineffective for electing not to object to
these waivers; and again, in any event, Fluker himself agreed to them.
Fluker next argues that counsel was ineffective on the grounds
that they failed to negotiate better waivers; his appeal waiver “bar[s]
the defendant from seeking relief based on rights that have not yet been
recognized by law[,]” and he cannot predict what he might one day hope
to appeal about his sentence or conviction. Id. Under Fluker’s theory,
however, no plea containing any appeal waiver could ever be considered
knowing and voluntary, because there is always the possibility of
unknown future legal or factual developments. Such a result is plainly
inconsistent with binding precedent, and counsel, therefore, was not
deficient for their performance in negotiating the plea agreement that
Fluker agreed to enter into.
Fluker also provides no contemporary or other evidence indicating
that any plea deal would have been offered to him without the inclusion
17
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of the appeal waivers. Nor does his motion ever identify a set of
circumstances related to waivers under which Fluker alleges that he
would have chosen to go to trial instead of pleading guilty, had his
counsel not been ineffective. Fluker therefore has not established
prejudice. Fluker’s plea, his appeal waiver, and collateral review
waiver are all valid, and he establishes no exception to invalidate them.
This first claim is denied.
Many of Fluker’s remaining arguments are simply repackaged
attacks on the validity of his sentence and allege specific errors at
sentencing. Those claims, properly construed, were waived under his
plea agreement, as well as procedurally defaulted by failure to pursue a
direct appeal of those issues. The Government’s response nonetheless
addresses many of these arguments on their merits as far as they are
alleged to be ineffective assistance claims, and so the court too generally
addresses both points.
ii. Guidelines Calculations
a. Victim Enhancement (Claim A)
Fluker alleges that his sentencing attorney, Attorney Grossmann,
was ineffective for failing to investigate the victim-number
18
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enhancement under § 2B1.1(b)(2)(A)(i), which applies when there are 10
or more victims of defendant’s conduct, and for withdrawing at
sentencing the objection that was made by Fluker’s prior counsel
(Attorney Mihas) regarding this enhancement. ECF No. 180,
PageID.1145-1146. He then argues that he was prejudiced by this
because “his sentence was increased by the deficient conduct of Mr.
Grossmann.” In his reply brief, Fluker expands on his theory for the
first time, largely consisting of Fluker’s view that the guideline
commentary (which supports the Government’s reading) is not a valid
reading of the guidelines text. See ECF No. 140, PageID.755.
Throughout all of Fluker’s guideline-related objections runs the
concern that he is merely repackaging claims disputing his sentence
into ineffective assistance claims. In the court’s view, Fluker’s
arguments about the correct way to interpret this Guideline and the
Application Note/commentary sounds in a dispute about the correctness
of his sentence – an issue that should have been addressed on direct
appeal but was not, and is now procedurally defaulted and waived by
his collateral review waiver. Nonetheless, the Government addressed
19
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the merits of his repackaged claim, and so the court addresses those
points as well.
First, Fluker stipulated in a Rule 11(c) plea agreement to an
agreed sentence of 135 months, which would be the case under the
agreement regardless of his specific guidelines calculation. ECF No.
131, PageID.746. So Fluker stumbles out of the gate in attempting to
show that a different result would be reasonably probable from a
change in his guidelines calculation at all. But even accepting that the
guidelines could theoretically affect Fluker’s sentence, 2 Fluker agreed in
his plea and at his plea hearing that there were at least 12 victims of
his offenses, and so the enhancement was properly applied according to
the terms Fluker himself agreed to. 3 Attorney Grossman’s withdrawal
of the objection at sentencing reflected an accurate understanding of the
2
“The Sentencing Guidelines prohibit district courts from accepting Type-C
agreements without first evaluating the recommended sentence in light of the
defendant’s Guidelines range. So in the usual case the court’s acceptance of a Type-
C agreement and the sentence to be imposed pursuant to that agreement are based
on the defendant’s Guidelines range.” Hughes v. United States, 584 U.S. 675, 687,
138 S. Ct. 1765, 1776 (2018) (internal citation omitted, cleaned up).
3
To this, Fluker says that “Defendant posits in the sentencing context
defendant did not agree that his offense involved ten or more victims.” ECF No.
140, PageID.754. But this argument goes nowhere fast; if he agreed that there were
at least twelve victims, then the government was free to argue that the relevant
sentencing enhancement applied. ECF No. 131, PageID.745.
20
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law in this circuit. 4 Fluker also does not claim that he would have gone
to trial instead of pleading guilty, had his attorney’s alleged error not
occurred. Given all of these points, Fluker has failed to establish either
unreasonably deficient performance by his counsel or prejudice
resulting from counsel’s actions. This claim is denied.
b. Criminal History (Claim B)
Fluker also claims that Attorney Grossmann was ineffective
because he did not object to the scoring of Fluker’s prior convictions in
his present supervised release cases. ECF No. 180, PageID.1147-1148.
Fluker says that these two prior convictions should have been scored as
one sentence because there allegedly was no intervening arrest and
resulted from offenses contained in the same charging instrument; that
his criminal history score and guidelines were improperly increased
from the separate scoring of these convictions; and that he was
prejudiced because there was a reasonable probability that the outcome
4
The Sixth Circuit has held that, in cases of fraud involving identity theft,
victims of the fraud may be counted for purposes of the (b)(2) enhancement, even if
they are not entitled to claim restitution because their monetary losses were
reimbursed by their financial institution. See United States v. Finley, 600 F. App’x
964, 969 (6th Cir. 2015). To the extent that Fluker apparently believes that case is
wrong under Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244 (2024) (ECF
No. 140, PageID.755), the failure to bring such an argument does not rise to the
kind of objectively unreasonable deficiency contemplated by Strickland.
21
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of his sentencing would have been different if this error had not
occurred. Id. In the court’s view, this is another run-of-the-mill alleged
nonconstitutional error in his sentence “repackaged” as an ineffective
assistance claim, and it is denied on that basis. On the merits, it
quickly fails. Fluker’s convictions from cases 09-20614 and 11-20631
were properly scored as separate convictions. Section 4A1.2(a)(2) of the
Guidelines provides that prior sentences “always are counted separately
if the sentences were imposed for offenses that were separated by an
intervening arrest (i.e., the defendant is arrested for the first offense
prior to committing the second offense).” U.S.S.G. § 4A1.2(a)(2). Even
if there was no intervening arrest, prior sentences are still counted
separately “unless (A) the sentences resulted from offenses contained in
the same charging instrument; or (B) the sentences were imposed on
the same day.” Id.
None of the relevant conditions apply. First and foremost, the
relevant offenses were separated by an intervening arrest. Fluker was
initially arrested in case 09-20614 on January 7, 2010, based on a
December 16, 2009 indictment charging him with four counts of identity
theft. ECF No. 146, PageID.910-911; 09-cr-20614 ECF No. 3. Then,
22
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while Fluker was in jail in August and September 2010, he conspired
with another individual to be released from jail through fraudulent
means, and actually was released through this scheme. ECF No. 146,
PageID.912-913. After this further fraud was discovered, Fluker was
arrested again. Id. Fluker was then charged in an indictment in case
number 11-cr-20631 on October 5, 2011 with escape from federal
custody. Id., PageID.912-913. So Fluker does not satisfy the threshold
condition. But in any case, the sentences resulted from offenses
brought in separate charging documents and the sentences were not
imposed on the same day, 5 so Fluker also does not satisfy either
alternate condition.
c. U.S.S.G. § 5G1.3 (Claim C)
Fluker asserts that § 5G1.3(b) of the U.S. Sentencing Guidelines
should have been applied to his case, and that Attorney Grossmann was
ineffective for failing to argue for its application. ECF No. 180,
PageID.1153-1154. Section 5G1.3(b) – which credits time served and
5
Fluker was sentenced by Judge Cox in case 09-cr-20614 in October 2010
(ECF No. 146, PageID.910), and by Judge Goldsmith in case 11-cr-20631 in April
2012 (id. at PageID.912-913).
23
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requires concurrent sentencing – applies where an undischarged term
of imprisonment “resulted” from another offense that constitutes
relevant conduct to the current case. Put differently, if a defendant has
already been sentenced for a separate offense, and that offense was
considered “relevant conduct” to the current case, that defendant would
be entitled under § 5G1.3(b) to credit for time served and a concurrent
sentence. See United States v. Foster, 527 F. App’x 406, 408 (6th Cir.
2013). 6
Fluker believes that § 5G1.3(b) would have been applied to his
case, and his sentence would have been reduced, had the point been
argued. In his view, when he was sentenced in his 2021 case on March
19, 2024, a term of imprisonment began at the moment the court
pronounced its judgment. ECF No. 140, PageID.756. In his theory, his
2021 case constitutes “relevant conduct” for his supervised release
violations, and that time would not otherwise be credited against his
sentence for supervised release.
6
The government seems to read the guideline slightly differently – that the
entire guideline in subsection (b) only applies if time has been “already served” on
the sentence for relevant conduct. ECF No. 134, PageID.704. The court reads, in
light of Foster, the two subsections (§ 5G1.3(b)(1) and (b)(2)) to be on equal footing;
that is, if the primary condition in subsection (b) is satisfied, then both (b)(1) and
(b)(2) apply.
24
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This argument is in substance once again within the scope of his
appeal waiver and was procedurally defaulted by his failure to pursue
challenges to his sentencing on appeal. On the merits of his repackaged
ineffective assistance claim, it fails. Fluker never explains how the
2021 offense constituted relevant conduct to his supervised release
violations, but it is not necessary to unpack that theory. It is enough to
say that Fluker cannot show prejudice from the alleged failure to raise
this objection. Even assuming for the moment that he is right that this
Guideline should apply, if his point is that some already-served time on
his 2021 offense should have been credited to him, then he is simply
wrong; he was sentenced for his supervised release violations in the
same proceeding as his 2021 offense. He had “already served” no time
at all on that undischarged term of imprisonment and he would not be
entitled to any sentence adjustment. If his point, on the other hand, is
that he ought to have been sentenced concurrently on all three
sentences, then he did not suffer prejudice because the court did, in fact,
impose concurrent sentences in all of Fluker’s cases. ECF No. 157,
25
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PageID.964. 7 But even so, it is clear that Guideline does not apply to
Fluker’s supervised release; instead, the policy statement in § 5G1.3(d)
applies, which states that “[i]n any other case involving an
undischarged term of imprisonment, the sentence for the instant
offense may be imposed to run concurrently, partially concurrently, or
consecutively[.]” This statement “applies in cases in which the
defendant was on federal . . . supervised release at the time of the
instant offense[.]” U.S.S.G. § 5G1.3, cmt. n.4(C). And under those
circumstances, the Commission’s recommendation is that “the sentence
for the instant offense be imposed consecutively to the sentence imposed
for the revocation.” Id. So at best, the applicable Guideline permits
both concurrent or consecutive sentencing; and contra Mr. Fluker’s
argument, the commentary recommends consecutive sentencing. In
light of all of these facts, Fluker cannot show either prejudice or
objectively unreasonable performance by counsel.
7
Even if it did apply, the court is not required to follow § 5G1.3 in
determining whether to impose a concurrent or consecutive sentence. Nettles v.
United States, No. 1:25-cv-617, 2026 LX 339302, at *15 (W.D. Mich. July 8, 2026)
(citing United States v. Gomez, 129 F.4th 954, 963 (6th Cir. 2025)).
26
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d. Loss Calculation (Claim J)
Fluker claims that Attorney Grossman was ineffective because he
failed to object to the PSR’s loss calculation, which called for the
application of a 16-level enhancement for loss of at least $1,500,000 but
less than $3,500,000 under § 2B1.1(b)(1)(I). ECF No. 180, PageID.1157-
1160. Fluker further claims that his guidelines should have been based
on an alleged “actual loss” amount of $500,000, versus an alleged
“intended loss” amount of $2,500,000. Id. He then claims that he was
prejudiced by Attorney Grossman’s failure to object to the loss amount
in the PSR, because a lower loss calculation would have reduced his
advisory guidelines range. Id. Again: this claim is merely a sentencing
dispute recast as an ineffective assistance claim. On that view, it is
within the scope of his appeal waiver and was procedurally defaulted.
On the merits, Fluker again fails to show either prejudice or any
ineffective assistance by his attorneys with respect to this claim.
First, Fluker cannot show prejudice from any alleged error as to
his guideline calculation – including as to loss amounts – because, as
explained above, he agreed to a set sentence of 135 months’
imprisonment in his plea agreement. Also as described above, in his
27
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plea agreement Fluker agreed to a loss of amount of at least $2,500,000;
he specifically agreed to recommend the application of the 16-level
guidelines enhancement that he now complains of; and he fails to allege
that he would have gone to trial absent the alleged ineffective
assistance here.
In his reply brief, Fluker perhaps recognizes that his plea
agreement forecloses his arguments, because he tries to pivot to a
slightly different argument, and claims instead that Attorney Mihas
inaccurately advised him during plea negotiations, to his detriment.
ECF No. 140, PageID.758. This claim is both procedurally waived and
wrong on the merits. As a general rule, this court does not entertain
issues raised for the first time in a reply brief. United States v.
Demjanjuk, 367 F.3d 623, 637 (6th Cir. 2004). No mention of deficient
performance by Mr. Mihas on this point is mentioned in Fluker’s
original motion (ECF No. 180, PageID.1157-60), and this point was
raised for the first time in reply. Additionally, this pivot to focus on pre-
plea advice (rather than counsel’s objections at sentencing) is rebutted
by Fluker’s plea colloquy. Fluker testified during the plea colloquy that
he was satisfied with Mihas’ advice. ECF No. 165, PageID.1027. But
28
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anyway, Fluker’s actual argument is that, in his view, this loss
guideline enhancement is based on an incorrect reading on the
guideline commentary, and so Mihas (and Grossman, by extension)
should not have advised him that the guidelines would apply to
“intended loss.” 8 That argument has been rejected on its merits by the
Sixth Circuit. United States v. Xiaorong You, 74 F.4th 378, 397 (6th
Cir. 2023) (“The context and purpose of the Guidelines clarify that ‘loss’
can also mean intended loss in the § 2B1.1 context”). So it was not
objectively unreasonable for Attorneys Mihas or Grossman to act as
they did or to advise Fluker that the guideline would apply to intended
loss, and Fluker suffered no prejudice from its application.
iii. Forfeiture and Restitution
a. Application of Forfeited Amounts to Restitution
(Claim D)
Fluker next argues that Attorney Grossmann was ineffective for
not “argu[ing] that the forfeiture of funds should have been credited as
8
For that proposition, he says “‘whether the district court erred in relying on
the guidelines commentary to calculate a defendants guideline range presents a
legal question.’ United States v . Riccardi, 989 F.3d 476, 481 (6th Cir 2021).” ECF
No. 140, PageID.758. No such quote appears in that case.
29
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an offset to the restitution order this court imposed,” that the court
could have entered such an order, and that he was prejudiced because
such an offset “would reduce the amount of restitution this court
imposed.” ECF No. 180, PageID.1150-1151. He also argues that
Attorney Grossmann should have filed an objection to the government’s
preliminary order of forfeiture, and he complains that Attorney
Grossman allegedly withdrew Attorney Mihas’s prior PSR objection
regarding this issue at sentencing. Id. Fluker’s claims here also fail
because he procedurally defaulted and waived these claims, and
because he fails to meet his burden to show ineffective assistance.
First, Fluker cannot demonstrate prejudice because the court does
not have authority to grant remission or restoration of forfeited assets
to victims, regardless of whether defense counsel makes such a request
at sentencing. When property is forfeited to the government, as it was
here, the ability to determine what happens to that property, including
whether the property will be applied toward restitution, is controlled by
the executive branch of the government, not the courts. See 21 U.S.C.
§ 853(i); see also United States v. One 1961 Cadillac et al., 337 F.2d 730,
733 (6th Cir. 1964) (explaining that the power to apply forfeiture to
30
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restitution obligations “was committed to the discretion of the
executive. . . . The courts have not been granted jurisdiction to control
the action of the executive . . . .”). Because the disposal of forfeited
assets is within the exclusive jurisdiction of the executive branch,
federal courts have rejected requests by both defendants and victims to
require the use of forfeited assets to pay restitution. See, e.g., United
States v. Joseph, III, 743 F.3d 1350, 1355 (11th Cir. 2014) (collecting
cases); United States v. Zaranek, No. 07-50091, 2007 U.S. Dist. LEXIS
39188, 2007 WL 1455923 at *1 (E.D. Mich. Apr. 26, 2007).
As for Fluker’s argument that “Mr. Grossmann withdrew prior
counsel’s objection relating to this claim at defendants sentencing
hearing[,]” that is affirmatively rebutted by the record. Attorney
Grossmann did not “withdraw” the objection at sentencing, but rather
simply stated that he had no new argument or position with respect to
that objection. ECF No. 161, p.7. The choice of whether to argue
additional points or stand on one’s written submissions is a reasonable
choice by counsel that does not demonstrate ineffectiveness.
Finally, Fluker argues that Attorney Grossman should have
informed him about the preliminary order of forfeiture, and failed to
31
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provide him additional information about that order. ECF No. 180,
PageID.1151. But Fluker identifies no prejudice stemming from this
alleged ineffectiveness. Nor could he, because the material terms were
the same he had already accepted in his plea agreement. See ECF No.
148, PageID.934-936; ECF No. 131, PageID.751-52. This claim is
denied.
b. Immediate Commencement of Restitution (Claim
F)
Fluker claims that the court erred when it ordered restitution
payments to begin while he is incarcerated, apparently on the ground
that the court lacks authority to order restitution payments other than
as a condition of supervised release. See ECF No. 180, PageID.1153-
1154. Fluker waived this claim because the claim is covered within the
scope of his appeal waivers; Fluker’s argument in his motion makes no
mention of counsel or counsel’s performance at all, and thus does not
raise any cognizable claim on collateral review. 9 Fluker also
9
In reply, Fluker appends: “Fluker’s counsel Attorney Grossmann was
ineffective for failing to object to the district courts failure as outlined herein.” ECF
No. 140, PageID.757. But this argument cannot be raised for the first time in reply;
in his motion he failed to connect this argument to ineffective assistance, and his
conclusory attempt to do so in reply merely illustrates that the argument is in
substance one that alleges nonconstitutional sentencing error.
32
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procedurally defaulted this claim because he also did not raise it on
direct appeal and provides no reason why this could not have been
raised on direct appeal. Fluker’s reply briefing adds additional
arguments on the merits, but gives no reason to avoid the procedural
default. Anyway, he is wrong on the facts and the law: 18 U.S.C.
§ 3572(d) states that “[a] person sentenced to pay . . . restitution . . .
shall make such payment immediately,” unless the court finds that the
interests of justice requires a different payment schedule. The court
acted within its authority to order immediate payment in full of
restitution, and it also did so with defendant’s consent under his plea
agreement. ECF No. 131, PageID.748. This claim is denied.
c. Restitution Amounts (Claim G)
Fluker also argues that his due process rights were violated when
the court corrected in its written judgment the sum of Fluker’s total
restitution obligations, even though the court correctly pronounced each
of the underlying restitution amounts for each of the victims at
sentencing and in the judgment. ECF No. 180, PageID.1154. This
claim about Fluker’s sentence is within the scope of Fluker’s appeal
waiver, and was not raised on direct appeal. Fluker’s motion makes no
33
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mention of Attorney Grossman’s performance at all. See id. The claim
was thus both procedurally defaulted and waived. 10
Even if it were not, Fluker’s counsel acted reasonably and Fluker
suffered no prejudice from counsel’s actions. At sentencing, the
government stated an incorrect total restitution sum of $3,809,176 for
the individual restitution amounts, which was repeated by the court
(ECF No. 161, p.12, 20), but this mathematical error was realized prior
to entry of the judgment and was corrected in the final written
judgment. ECF No. 157. Because the individual amounts of restitution
ordered to each victim on the record at sentencing were correct, the
clerical error was limited to the summation of these otherwise correct
individual amounts, and the final restitution amount remained
consistent with the terms of the Rule 11 plea agreement. Defense
counsel Grossman thus stated that “he would not object to the entry of
the correct summation amount in the judgment.” ECF No. 134,
PageID.702. The amount owed to each victim was correctly stated at
10
Again, Fluker tries to correct that in reply: “Attorney Grossmann’s failure
to object to this courts ambiguous restitution order renders his representation
deficient.” ECF No. 140, PageID.758. But his belated correction shows that the
substance of the argument was a sentencing dispute properly brought on direct
appeal.
34
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sentencing, and the court’s correction of the summation error in the
judgment was clerical in nature. Fluker’s argument rests entirely on
the claim that the oral judgment was “ambiguous” due to this mismatch
between the correct individual amounts and correct total sum, and his
attorney was deficient for allowing it. ECF No. 140, PageID.758. But
as explained, the total sum would not have changed the correct
imposition of restitution to each individual victim (Fluker’s restitution
obligation to each of his victims was unchanged by the correction), so as
far as this purports to be an ineffective assistance claim, Fluker
suffered no prejudice from the correction of the sum total, and Attorney
Grossman acted within an objectively reasonable role as counsel to
agree to that correction. This claim is denied.
iv. Remaining Sentencing Issues
Fluker’s final two arguments do not fit neatly into the above
categories, but broadly object to two remaining alleged infirmities in his
sentencing.
35
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a. Standard Conditions of Supervised Release
(Claim E)
Fluker alleges that this counsel was ineffective for failing to object
to this court’s incorporation by reference of the standard supervised
release conditions 10 and 12, which he alleges violate his rights. ECF
No. 180, PageID.1151-1153. First and foremost, supervised release
conditions fall within the scope of Fluker’s appeal waiver, and was
procedurally defaulted. United States v. Booker, No. 22-3160, 2023 U.S.
App. LEXIS 3724, at *11 (6th Cir. Feb. 15, 2023) (noting that an
agreement to waive the right to appeal one’s sentence includes
supervised-release conditions) (collecting cases).
On the merits, Fluker first objects to the court’s incorporation by
reference of the standard supervised release conditions as violative of
his due process rights as a general matter, but he is wrong. “[L]isting
the standard conditions either in a districtwide general order or in the
presentence investigation report and then adopting them by reference
provides defendants with sufficient due process.” United States v.
Hayden, 102 F.4th 368, 374 (6th Cir. 2024). At sentencing in this case,
the court orally announced that the defendant shall abide by the
36
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standard conditions as adopted by the United States District Court for
the Eastern District of Michigan, in addition to reading each of the
special conditions. ECF No. 161, p.21. Fluker claims in conclusory
fashion that Grossman objecting to the imposition of all thirteen
standard conditions would have changed which conditions the court
imposed, but in substance, Fluker only claims that two conditions
should not have been imposed: numbers ten and twelve. The court
accordingly finds that Fluker did not identify any specific prejudice or
deficiency as to the other eleven conditions, and his speculation that
some unidentified conditions may not have been imposed fails to carry
his burden to establish prejudice on an ineffective assistance claim.
Turning then to the two specific conditions he identifies: condition
ten prevents Fluker from owning or having access to a firearm. ECF
No. 157, PageID.966. Condition twelve states that, “If the probation
officer determines that you pose a risk to another person (including an
organization), the probation officer may require you to notify the person
about the risk and you must comply with that instruction. The
probation officer may contact the person and confirm that you have
notified the person about the risk.” Id. As to each, the Government
37
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correctly notes that Fluker is essentially attempting a pre-enforcement
challenge; he is not currently subject to any of his supervised release
conditions because he is not on supervised release. In the context of
challenges to supervised release conditions, the general rule is that
“conditions of supervised release may be ripe for appellate review
immediately following their imposition at sentence.” United States v.
Lee, 502 F.3d 447, 449-50 (6th Cir. 2007). But in some cases, a
defendant’s “rights will be better served if his appeal is preserved until
after he is released from prison.” See id. at 450. This is true
particularly where imposition of a particular condition of supervised
release is “potential” and contingent on some future action, or if other
contingent future developments will render the dispute moot or offer
determinative answers. See id.
This observation is, on this motion, fatal to Fluker’s claim against
condition twelve. That condition is imposed if, and only if, “the
probation officer determines that [Fluker] pose[s] a risk to another
person (including an organization)[.]” ECF No. 157, PageID.966. The
Sixth Circuit has repeatedly found challenges to a probation officer’s
discretionary decisions, contingent on some future potential
38
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circumstance, to be unripe. United States v. Lindahl, No. 22-2117, 2024
U.S. App. LEXIS 2368, at *9 (6th Cir. Feb. 1, 2024) (“when
a condition merely has the ‘potential’ to occur, rather than being
deemed mandatory, it is likely unripe.”); see also Lee, 502 F.3d at 450
(concluding that the defendant’s “contention that he will actually be
subject to penile plethysmograph testing is mere conjecture” and “the
occasion may never arise”); United States v. Nichols, 802 F. App’x 172,
184 (6th Cir. 2020) (concluding that a defendant’s challenge to
conditions requiring a polygraph test was unripe where the probation
officer had “discretion in imposing the testing.”); United States v.
Massey, 349 F. App’x 64, 70 (6th Cir. 2009) (concluding that the
defendant’s challenge to his supervised release conditions was not ripe
because two tests were simply “options that [the defendant’s] probation
officer may choose” and the use of those tests was “optional”). So
Fluker’s present objection to condition twelve is unripe, and therefore
Fluker cannot show prejudice or objective ineffectiveness by Grossman’s
alleged failure to object to this specific condition at sentencing. 11
11
In any event, the Sixth Circuit has held that such conditions are not
unconstitutionally vague, so Fluker cannot show prejudice on the merits either.
United States v. Campbell, 122 F.4th 624, 634 (6th Cir. 2024).
39
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As for condition ten, Fluker advances a theory that he cannot be
constitutionally disarmed under the test explained in United States
v. Williams, 113 F.4th 637 (6th Cir. 2024). Fluker has tried this theory
elsewhere before the undersigned. See Fluker v. Driscoll, No. 24-13322,
2026 LX 96826, at *9 (E.D. Mich. Jan. 22, 2026) (denying Fluker’s claim
for declaratory judgment on a nearly identical theory on standing and
ripeness grounds), appeal pending No. 26-1245 (6th Cir. 2026). As this
court explained in that decision, Fluker’s claims under Williams are not
ripe because he lacks the legal ability to possess a gun while
incarcerated, independent of any other legal bar (such as, for present
purposes, his supervised release conditions). The court also notes that a
supervised release condition is, as a matter of law, a factor that changes
the Williams analysis and weighs against Fluker’s argument on the
merits. See United States v. Goins, 118 F.4th 794, 802 (6th Cir. 2024)
(“controlling precedent in this circuit[] also supports the temporary
disarmament of those on probation, parole, or supervised release”); but
see United States v. Hostettler, 170 F.4th 539, 545 (6th Cir. 2026)
(holding that supervised release alone is not dispositive under Goins).
On the merits, the court refrained from ruling on his theory in his
40
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declaratory judgment action, and again does so here; the claim remains
unripe for the reasons explained here and in that decision. 12 Once his
term of supervised release begins, Fluker can seek to have his
conditions modified by the court “at any time prior to the expiration or
termination of the term of supervised release.” 18 U.S.C. 3583(e)(2);
ECF No. 134, PageID.710. At this time, he has suffered no prejudice
from the imposition of these conditions. Fluker’s counsel was not
ineffective for failing to raise these issues at that moment, and this
claim is denied.
12
Nonetheless, it is worth pointing out that Fluker’s spouse advanced a
similar argument in that case. Fluker’s spouse, Ricky Jones, aided Fluker’s escape
from jail by authoring the fraudulent document that secured his escape. This court
concluded that “escape from jail poses a danger to the community. Just as burglary
is a dangerous crime because it creates the possibility of a violent confrontation
with an occupant or law enforcement, ‘[h]elping someone break out of custody
involves the possibility of various violent confrontations, including with jail staff,
law enforcement, and members of the public.’ And assisting in an act of escape
shows Jones’ ‘clear unwillingness to comply with legal obligations and law
enforcement and justify a finding of dangerousness.’” Id. at *11-12 (quoting
citations omitted). The court thus found that section 922(g)(1) is constitutional as
applied to Jones. Id. Even assuming, for the moment, that supervised released
status alone cannot impinge on Fluker’s Second Amendment rights, and also setting
aside Fluker’s other criminal history, it is hard to see how Fluker can show
prejudice by Grossman’s performance under these facts.
41
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b. Subject Matter Jurisdiction over Supervised
Release Sentence and Length of Supervised
Release Sentences (Claim K)
Fluker alleges that his counsel was ineffective for failing to object
to the court’s imposition of sentences in his supervised release cases, on
the ground that the sentences were imposed after the expiration of his
terms of supervised release to an extent that was not reasonably
necessary, and the court thus lacked subject matter jurisdiction to
sentence him under 18 U.S.C. § 3583(i). ECF No. 180, PageID.1160-
1161. 13 He further alleges that this failure to object resulted in his
sentence being increased by 24 months. Id., PageID.1162. Not to
belabor the point, but this claim is functionally a nonconstitutional
dispute over an alleged sentencing error that was within the scope of
Fluker’s appeal waivers and was procedurally defaulted.
On the merits, Fluker’s argument is factually wrong. Fluker’s
sentence was not increased by 24 months; his sentences for his
13
The Government does not contest that the statute is jurisdictional, and a
number of Circuits have said just that. United States v. Gulley, 130 F.4th 1178,
1184 (10th Cir. 2025) (collecting cases); see also United States v. Mont, 723 F. App’x
325, 329 (6th Cir. 2018).
42
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supervised release violations were imposed concurrently to his sentence
for his 2021 case. Case 4:09-cr-20614, ECF No. 117, PageID.443; Case
4:11-cr-2063, ECF No. 58, PageID.178. Thus, his total term of
imprisonment was not increased as a result of the sentences imposed on
his supervised release cases, and defendant suffered no prejudice from
any delay in imposition of his supervised release sentences. Fluker also
fails to allege that he would have foregone a plea in his supervised
release matters absent this alleged ineffective assistance. On these
grounds alone, this claim can be denied.
On the law, he is also wrong. 18 U.S.C. § 3583(i) provides that the
court’s authority to revoke supervised release and order the defendant
to serve an additional term of imprisonment “extends beyond the
expiration of the term of supervised release for any period reasonably
necessary for the adjudication of matters arising before its expiration” if
a warrant was issued alleging the violation prior to the expiration of the
original supervised release term. Courts have found that delay is
“reasonably necessary” when it is due to the adjudication of other
criminal matters that are related to the question of whether the
defendant violated his supervised release conditions. See, e.g., United
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States v. Madden, 515 F.3d 601, 606-608 (6th Cir. 2008) (finding “ample
reason” for 3-year delay, where delay was due to the adjudication of
separate criminal charges arising from the same incidents that were the
subject of his alleged supervised release violation and thus “the outcome
of these proceedings directly related to whether [defendant] had
actually violated the terms of his supervised release, and that the
alleged conduct occurred over several months in the middle of
defendant’s term of supervised release). There is overwhelming
evidence in the record showing that is exactly the case here. Fluker’s
supervised release violation petition alleged several violations,
including that Fluker had violated the condition requiring him to not
commit another crime, with reference to the conduct set forth in the
federal criminal complaint issued against Fluker several months prior.
E.g., 09-cr-20614 ECF No. 74, PageID.310-311. Delaying Fluker’s
supervised release proceedings to allow for the resolution of the related
new criminal charges was squarely “reasonably necessary” under
§ 3583(i) and Madden. Fluker’s counsel did not act unreasonably in
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agreeing to each adjournment, nor in deciding not to bring a subject
matter jurisdiction argument. 14 This claim is denied.
IV. CONCLUSION
For the reasons explained above, the court DENIES the motion
brought under 28 U.S.C. § 2255 (ECF No. 180). The motion at ECF No.
173 is DENIED AS MOOT, and the second amended motion at ECF
No. 186, construed as a motion for leave to amend, is DENIED. The
corresponding motions in case numbers 11-20631 (ECF Nos. 64, 70, 76)
and 09-20614 (ECF Nos. 124, 129, 137) are denied accordingly.
Under 28 U.S.C. § 2253(c)(1)(B), the court must determine
whether a certificate of appealability should issue. A certificate should
issue if the petitioner has demonstrated a “substantial showing of a
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The district
court must “engage in a reasoned assessment of each claim” to
determine whether a certificate is warranted. Murphy v. Ohio, 263 F.3d
466, 467 (6th Cir. 2001). Each issue must be considered under the
14
Fluker also has trouble showing he suffered any prejudice from the
adjournments (ECF No. 134, PageID.709), but it is not necessary to discuss that
point given that he also does not allege that he would have foregone a plea in his
supervised release matters and gone to trial absent this alleged ineffective
assistance.
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standards set forth by the Supreme Court in Slack v. McDaniel, 529
U.S. 473 (2000); Murphy, 263 F.3d at 467. Under Slack, 529 U.S. at
484, to warrant a grant of the certificate, “[t]he petitioner must
demonstrate that reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.” Id.
Here, as explained in detail above, Fluker’s arguments are
foreclosed by the waivers in his plea agreement, by the facts he pleaded
guilty to, by his agreeing in his plea to particular aspects of his
sentence, and by his procedural default in not raising these issues on
direct appeal. To the limited extent some of his claims might be
generously construed to survive those waivers and procedural barriers,
he has failed to show either that his counsel’s performance fell below an
objective standard of reasonableness or that he suffered prejudice from
his counsel’s conduct; both problems independently foreclose any
remaining claims. No reasonable jurist would decide the matter
differently, and a certificate of appealability will not issue.
Accordingly, Fluker’s motion to compel production of discovery
related to this motion (ECF No. 194) is DENIED.
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As for Fluker’s motion for return of property (ECF No. 190), the
Government’s response primarily (though not entirely) rests on the
ground that Fluker’s § 2255 petitions remain pending, and so the
government has a continued interest in the property as evidence (ECF
No. 191). Each of Fluker’s § 2255 motions are resolved before this court
by this opinion and order, so that particular ground may be moot. The
court therefore orders the Government to supplement its response to
that motion, within 21 days of entry of this order, in light of this
decision.
SO ORDERED.
Date: August 10, 2026 s/F. Kay Behm
F. Kay Behm
United States District Judge
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