The opinion of the court was delivered by: Jarvis
This is a motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 filed by petitioner Lennox L. Roper ("Roper"). For the following reasons, the § 2255 motion will be DENIED and this action will be DISMISSED.
This court must vacate and set aside Roper's conviction upon a finding that "there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack." 28 U.S.C. § 2255. To prevail under § 2255, Roper "must show a 'fundamental defect which inherently results in a complete miscarriage of justice,' or, an error so egregious that it amounts to a violation of due process." United States v. Ferguson, 918 F.2d 627, 630 (6th Cir. 1990) (quoting Hill v. United States, 368 U.S. 424, 428 (1968)).
Under Rule 8 of the Rules Governing Section 2255 Proceedings In The United States District Courts, the court is to determine after a review of the answer and the records of the case whether an evidentiary hearing is required. If the motion to vacate, the answer and the records of the case show conclusively that Roper is not entitled to relief under § 2255, there is no need for an evidentiary hearing. Baker v. United States, 781 F.2d 85, 92 (6th Cir. 1986).
Roper was convicted by a jury of conspiracy to distribute cocaine hydrochloride, in violation of 21 U.S.C. §§ 846 & 841(b)(1)(A), and possession with intent to distribute cocaine hydrochloride, in violation of 21 U.S.C. § 841(a)(1). He was sentenced to concurrent terms of imprisonment of 256 months on each conviction; the sentence included a three-level enhancement based upon Roper's role in the offense. The judgment was affirmed on direct appeal. United States v. Roper, 266 F.3d 526 (6th Cir. 2001).
In support of his § 2255 motion to vacate sentence, Roper alleges the following: (1) the wrong version of the sentencing guidelines was used to compute his sentence, (2) he was erroneously assessed two points for being on parole at the time of the offense, (3) his base offense level was erroneously enhanced two levels based upon a firearm found away from the scene of the offense, (4) tape recordings used to convict him were illegally obtained and should have been suppressed, (5) he should not have been sentenced as an organizer or leader of the conspiracy, and (6) he received ineffective assistance of counsel. In an amendment to the § 2255 motion, Roper seeks relief pursuant to the Supreme Court decision in Blakely v. Washington, 542 U.S. 296 (2004).
A. The Computation of Roper's Sentence
Roper first claims that the 1998 version of the Sentencing Guidelines were wrongly used to compute his sentence, in violation of the ex post facto clause of the Constitution, since the presentence investigation indicated the conspiracy took place between February 1995 and November 1997. According to Roper, the 1994 version of the guidelines should have been used. This claim lacks merit. The conspiracy with which Roper was charged and convicted did not end until his arrest on May 2, 1998. [Criminal Action No. 3:98-cr-58, Court File No. 91, Superseding Indictment, p. 1, Count One]. Accordingly, he was properly sentenced under the 1998 version of the guidelines.
Roper next alleges that two points were erroneously added to his criminal history for committing the offense while on parole, when he was not in fact on parole at the time. This allegation likewise lacks merit. Roper was on parole supervision for a previous conviction until October 1995; the conspiracy began in February 1995. Two points were thus properly added to his criminal history.
Roper claims he received an improper enhancement of two points based upon his possession of a firearm in connection with the drug offense. At sentencing, however, the government agreed not to pursue the two-level enhancement in return for Roper withdrawing his objection to the drug quantity, and the court did not apply the two-level enhancement. United States v. Roper, 266 F.3d 526, 529-30 (6th Cir. 2001).
Roper also alleges he erroneously received an enhanced sentence as a leader o organizer of the conspiracy. The government sought a four-level enhancement based upon Roper's role in the ...