The opinion of the court was delivered by: R. Allan Edgar United States District Judge
Federal prisoner Kaylon Sebron Bailey ("Bailey") moves for post-conviction relief pursuant to 28 U.S.C. § 2255. Bailey contends he was deprived of his right to effective assistance of counsel guaranteed by the Sixth Amendment to the United States Constitution. Additionally, Bailey contends he was denied due process of law guaranteed by the Fifth and Fourteenth Amendments. Specifically, he claims these constitutional rights were violated because his conviction is based on insufficient evidence and on the testimony of his co-defendant, who was promised a more lenient sentence for his testimony. The United States opposes the motion.
After reviewing the record, the Court concludes that Bailey's § 2255 motion will be DENIED. The record conclusively shows that Bailey is not entitled to any relief under 28 U.S.C. § 2255. There is no need for an evidentiary hearing.
A federal prisoner may file a motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence on the ground that the sentence was imposed in violation of the United States Constitution. To obtain relief under § 2255 based on an alleged constitutional error, Bailey bears the burden of establishing an error of constitutional magnitude which had a substantial and injurious effect or influence on the criminal proceedings. Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993); Hill v. United States, 368 U.S. 424, 428 (1962); Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003); Watson v. United States, 165 F.3d 486, 488 (6th Cir.1999). To warrant relief under § 2255, Bailey is required to show a fundamental defect in the criminal proceedings which inherently results in a complete miscarriage of justice or an egregious error that rises to the level of a violation of constitutional due process. Davis v. United States, 417 U.S. 333, 346 (1974); Griffin, 330 F.3d at 736; Gall v. United States, 21 F.3d 107, 109 (6th Cir.1994).
On January 23, 2001, a federal grand jury returned a three-count indictment against Bailey and co-defendant Lametris Bush ("Bush"). Bailey was charged in two of the counts. Count One charged Bailey with conspiring to distribute fifty grams or more of cocaine base with Bush, in violation of 21 U.S.C. § 846. Count Two charged Bailey with attempting to distribute five grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). Co-defendant Bush pled guilty to the charges and Bailey went to trial. After a two-day jury trial, Bailey was convicted of Count Two, acquitted of Count One, and subsequently sentenced by this Court to a term of 170 months imprisonment to be followed by four years of supervised release. Bailey filed a direct appeal which was affirmed in a per curiam opinion by the Sixth Circuit Court of Appeals and a mandate issued on June 27, 2003. See United States v. Bailey, 61 Fed.Appx. 233 (6th Cir. 2003) (unpublished table decision), available in 2003 WL 1949583. Bailey timely filed his motion under 28 U.S.C. § 2255 on April 21, 2004.
The following recitation of the facts is from the direct appeal to the United States Court of Appeals for the Sixth Circuit:
On January 4, 2001, Bailey and Bush were arrested at Frank's grocery store in Chattanooga, Tennessee, after Bush attempted to sell crack cocaine to a confidential informant named Terry Heard. Heard, who recently had been arrested for distribution of controlled substances, had cooperated with the police to set up the meeting, recording four staged conversations in which he arranged to purchases two ounces of crack cocaine from Bush. Bush had agreed to meet Heard at Frank's grocery store. Heard was outfitted with a transmitter and provided with "flash money." The plan was to arrest Bush before the transaction was completed, but after confirming that the drugs were present. Approximately ten officers in four different vehicles were part of the stakeout, wearing raid gear, including vests with the word "Police" written on the front and back in large letters.
Heard gave the pre-arranged signal to the officers once he had verified that Bush had the drugs with him, and the officers descended on the parking lot. The officers claim that they announced they were police officers and pulled Bailey out of the car, placing him on the ground, while they attempted to secure Bush who had gone inside the grocery store. Bailey, however, jumped up and ran from the scene. He claims that he ran because he did not know that these were police officers and he thought they were a gang that had come after him. Eventually Bailey was apprehended at a nearby barber shop.
Once arrested, Bailey waived his rights in writing and made various incriminating statements to officers who interviewed him at the police station.*fn1 Various officers testified at trial that Bailey had told them he worked for Bush, by driving him around, and that Bush was "the man," which the officers interpreted as implying that Bush was in charge and in possession of the drugs. In addition, Bailey allegedly told the officers that he wanted to cooperate and could do so by acting as an informant and arranging crack cocaine deals.
Bush pled guilty to the charges and agreed to cooperate as part of his plea agreement. Bush testified for the government at trial, stating that he had been engaged in drug transactions with Bailey since October 2000, and that it was Bailey who was supplying the drugs, which were obtained from Atlanta, Georgia. Bush also testified regarding the events that led up to the meeting at Frank's grocery store and their subsequent arrest. Bush explained that he got a call from Heard expressing an interest in buying two ounces of cocaine base. Bush then called Bailey to purchase the drugs he would need for the sale. When Bush visited Bailey's residence, he told Bush that he had a buyer who wanted two ounces of crack later that evening. Bailey told Bush to call him when he needed the drugs. In the ...