The opinion of the court was delivered by: Judge Curtis L. Collier
Dana Rayne Morrison ("Morrison") has filed a motion under 28 U.S.C. § 2255 to vacate, set aside or correct her 36-month sentence of imprisonment for violating conditions of her supervised release. In her motion, Morrison alleges several constitutional infringements occurred during the revocation proceedings.
In February of 1999, Morrison was convicted in the Northern District of Georgia, pursuant to her guilty pleas, of one count of credit card fraud, in violation of 18 U.S.C. § 1029(a)(2) and (b)(2); twenty-one counts of using false social security numbers, in violation of 42 U.S.C. § 408(a)(7)(B); four counts of bank fraud, in violation of 18 U.S.C. § 1344; and one count of uttering a counterfeit cashier's check, in violation of 18 U.S.C. § 513(a). The district court sentenced her to 81 months imprisonment, to be followed by five years of supervised release. Morrison completed her sentence of confinement and began her supervised release term on May 28, 2004, which was scheduled to terminate on May 28, 2009.
On June 4, 2005, jurisdiction for her supervised release was transferred to this Court and, that same day, her probation officer filed a petition to revoke her supervised release (Ct. File. Nos. 1, 2). On July 8, 2005, Morrison pleaded guilty to violating six conditions of her supervised release and, upon a finding that she, in fact, had violated the conditions of her supervised release, the Court revoked her release and sentenced her to 36 months of imprisonment (Ct. File Nos. 6, 8), rather than the 21-27 months provided in the policy statement of the United States Sentencing Guidelines ("Guidelines") for her violation. After considering the factors identified in 18 U.S.C. § 3553, the Court determined Morrison should be sentenced to 36 months because she had engaged in the same type of criminal behavior during supervised release as she had when she committed her original federal offenses; she lacked the ability to comply with any conditions of supervised release that might be imposed; and she needed to be incapacitated to protect the public from further offenses involving financial fraud [Court File No. 15, July 8, 2005 Revocation. Hr'g Tr., p. 11). She did not appeal, but instead filed this timely motion to vacate, alleging several claims for relief.
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 IN 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.
Having reviewed the materials submitted, together with the complete record of the underlying revocation, the Court finds they show conclusively defendant is not entitled to relief and further finds an evidentiary hearing is not necessary. See United States v. Todaro, 982 F.2d 1025, 1028 (6th Cir.), cert. denied, 508 U.S. 943 (1993).
Morrison's first claim is this Court had no jurisdiction to revoke her supervised release because she "had not relinquished her first jurisdiction." She contends "the probation department could not produce at the [revocation] hearing any signed document requesting a jurisdictional change" and she should have been transferred to Atlanta, Georgia to allow the district court that sentenced her originally to rule on this matter. The Court disagrees.
Jurisdiction over Morrison's supervised release was properly transferred to this Court pursuant to 18 U.S.C. § 3605 (Ct. File No. 1). Morrison does not possess a protectible liberty interest in the site of her supervision jurisdiction nor in having the same judicial officer who sentenced her preside over her revocation proceedings. United States v. Ohler, 22 F.3d 857, 858-59 (9th Cir. 1993). Although Morrison's original sentence was imposed by another district court, this Court became quite familiar with her case and it had the authority to sentence Morrison to three years imprisonment, which it did.*fn1 This claim is baseless.
Not only is this claim baseless, but it has also been procedurally defaulted by Morrison's earlier failure to raise it (i.e., at the revocation hearing or on direct appeal) and by her present failure to show cause or prejudice to excuse the default. Elzy v. United States, 205 F.3d 882, 884 (6th Cir. 2000) (requiring a petitioner who had failed to ...