The opinion of the court was delivered by: Collier
Albert Thurman ("Thurman") a federal prisoner, brings this pro se motion for post-conviction relief pursuant to 28 U.S.C. § 2255. For the reasons that follow, the Court has determined a hearing is not necessary and concludes the § 2255 motion lacks merit and will be DENIED. Thurman is not entitled to relief under § 2255.
II. Procedural Background
On April 9, 2002, a four-count indictment was filed charging Thurman in Count One with possessing equipment, chemicals, products, and materials that could be used to manufacture methamphetamine in violation of 21 U.S.C. § 843(a)(6). Count Two of the indictment charged Thurman with knowingly, intentionally, and without authority attempting to manufacture methamphetamine, a Schedule II controlled substance, in violation of 21 U.S.C. § 846. Thurman was charged in Count Three as a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Count Four of the indictment charged Thurman with possessing, with the intent to distribute, methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 846. Thurman pleaded guilty to the four-count indictment without the benefit of a plea agreement on May 23, 2002.
On September 6, 2002, Thurman was sentenced to 70 months incarceration on each of the four counts, to be served concurrently. Thurman did not take a direct appeal from the judgment of conviction. This § 2255 motion was timely filed on July 21, 2003, alleging several instances of ineffective assistance of counsel, a double jeopardy claim, and a government misconduct claim.
This Court must vacate and set aside the sentence if it finds"the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or 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. Under Rule 4 of the Rules Governing Section 2255 Proceedings for the United States District Courts, the Court is to consider initially whether the face of the motion itself, together with the annexed exhibits and prior proceedings in the case, reveals the movant is not entitled to relief. If it plainly appears the movant is not entitled to relief, the Court may summarily dismiss the § 2255 motion under Rule 4.
When a defendant files a § 2255 motion, he must set forth facts that entitle him to relief. Green v. Wingo, 454 F.2d 52, 53 (6th Cir. 1972); O'Malley v. United States, 285 F.2d 733, 735 (6th Cir. 1961). "Conclusions, not substantiated by allegations of fact with some probability of verity, are not sufficient to warrant a hearing." O'Malley, 285 F.2d at 735 (citations omitted). A motion that merely states general conclusions of law without substantiating allegations with facts is without legal merit. Loum v. Underwood, 262 F.2d 866, 867 (6th Cir. 1959); United States v. Johnson, 940 F. Supp. 167, 171 (W.D. Tenn. 1996).
To warrant relief under 28 U.S.C. § 2255 because of constitutional error, the error must be one of constitutional magnitude that had a substantial and injurious effect or influence on the proceedings. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (citation omitted)(§ 2254 case); Clemmons v. Sowders, 34 F.3d 352, 354 (6th Cir. 1994); see also United States v. Cappas, 29 F.3d 1187, 1193 (7th Cir. 1994)(applying Brecht to a § 2255 motion). If the sentencing court lacked jurisdiction, then the conviction is void and must be set aside. Williams v. United States, 582 F.2d 1039, 1041 (6th Cir.), cert. denied, 439 U.S. 988 (1978). Relief for a non-constitutional error requires a showing of a fundamental defect in the proceeding that resulted in a complete miscarriage of justice or an egregious error inconsistent with the rudimentary demands of fair procedure. Reed v. Farley, 512 U.S. 339, 354 (1994); Grant v. United States, 72 F.3d 503, 506 (6th Cir.), cert. denied, 517 U.S. 1200 (1996).
Further, a § 2255 motion is not a substitute for a direct appeal and it cannot do service for an appeal. Bousley v. United States, 523 U.S. 614, 621 (1998); United States v. Timmreck, 441 U.S. 780, 784 (1979); Grant v. United States, 72 F.3d at 506; United States v. Walsh, 733 F.2d 31, 35 (6th Cir. 1984). Thurman cannot use a § 2255 motion to litigate the issues that should have been presented and decided on direct appeal unless cause is shown for the tardy challenge and "actual prejudice" resulting from the error is demonstrated, United States v. Frady, 456 U.S. at 167-68; or the movant is actually innocent of the crime. See Bousley v. United States, 523 U.S. at 622. Issues that are presented and considered on direct appeal cannot be litigated again in a § 2255 proceeding absent exceptional circumstances or an intervening change in the law. Wright v. United States, 182 F.3d 458, 467 (6th Cir. 1999); Jones v. United States, 178 F.3d 790, 796 (6th Cir.), cert. denied, 528 U.S. 933 (1999); Oliver v. United States, 90 F.3d 177, 180 (6th Cir. 1996); DuPont v. United States, 76 F.3d 108, 110-11 (6th Cir. 1996).
The following pertinent facts are taken from the Presentence Investigation Report ("PSR") prepared by the United States Probation Office:
8. On January 23, 2001, in Rhea County, Tennessee, Deputy Sheriff Mike Bice executed a search warrant at the residence of the defendant, Albert Thurman, in Rhea County, Tennessee. During the execution of the search warrant, Mr. Thurman was at home with his wife. Officers found components of a methamphetamine laboratory inside the defendant's home. These items included: two one gallon jugs with soaking match striker plates, four propane torches, a paper bag containing matchbooks, coffee filters, rubber gloves, one bottle of Red Devil lye, six quart glass jars, a plastic bottle with attached tubing, two different bottles of hydrogen peroxide, four bottles of Heet gas line antifreeze, two bottles of iso-heat, one box of fire starters, a can of paint thinner, five cans of acetone, two gallons of Coleman fuel, a glass coffee pot, one jar containing iodine crystals (no known amount), one gallon jug of muriatic acid, four glass smoking pipes and a paper bag containing aluminum foil strips. Also, Drug Enforcement Administration (DEA) Agent Crosby Jones pulled samples from various containers and one of the samples contained liquid which contained methamphetamine.
9. In addition to the items associated with the methamphetamine laboratory, officers also found numerous firearms, including: a Glenfield .22 long rifle, a Stevens model 62 caliber .22, a Ruger .44 magnum carbine, a Mossburg .22 caliber rifle, a 20 gauge double barrel shotgun, a Stevens model 67 shotgun and a Charter Arms Bulldog .44 magnum handgun. None of these firearms were manufactured in the state of Tennessee and therefore necessarily traveled in interstate commerce. The defendant is a convicted felon. The defendant's two minor children were home at the time of the search warrant; they were taken to the hospital in Rhea County. The bedroom where the children were sleeping was very near the area where the methamphetamine was being "gassed off."
10. On December 7, 2001, the defendant was the subject of a traffic stop by Deputy Matt Rose with the Rhea County Sheriff's Department in Rhea County, Tennessee. Prior to Mr. Thurman being pulled over by Deputy Rose, Rose noticed Thurman swerving across the center line. Rose activated his blue lights and Thurman pulled his vehicle over to the side of the road. Subsequent to a consent given by Mr. Thurman, Rose searched the vehicle and found a quart milk container containing six plastic baggies of suspected methamphetamine. However, due to the condition and nature of the milk container and the remaining milk in the container, the methamphetamine was unable to be tested. Therefore, there are no specific quantities of methamphetamine ...