The opinion of the court was delivered by: Thomas A. Varlan United States District Judge
This is a motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 filed by petitioner Stephen M. Mullican ("Mullican"). For the following reasons, the § 2255 motion will be DENIED and this action will be DISMISSED.
This court must vacate and set aside Mullican'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, Mullican "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 Mullican 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).
Mullican pleaded guilty to armed bank robbery, in violation of 18 U.S.C. § 2113(a) and (d). As part of his plea agreement, Mullican stipulated in writing to the following factual basis:
On September 26, 2003, at approximately 3:30 p.m., defendant Stephen Wayne Mullican, also known as Fenton Hobbs, robbed the Sevier County Bank, 3260 Parkway, Pigeon Forge, Tennessee. Mullican entered the bank and set a canvas bag on the teller counter and demanded money. When the teller hesitated, Mullican produced an item which appeared to be a handgun and again demanded money. The teller complied and placed $5,610 in the bag and Mullican then fled the bank.
At about the same time as Mullican was leaving the bank, a concerned citizen passing by noticed a white male running from the bank and get into a Ford Aerostar mini van and hurriedly drive off. Although the concerned citizen lost sight of the van briefly, he spotted it soon thereafter weaving in and out of traffic. The concerned citizen was then able to get the Georgia license plate number displayed on the rear of the van and relay that information along with the direction of travel to the Pigeon Forge police.
After obtaining the above-described information Pigeon Forge police officers located the van which was still displaying the Georgia license plate number reported by the concerned citizen. The van was parked in front of a mobile home. The police also observed that the van had a distinctive mud spot in the rear portion.*fn1 As the police secured the mobile home, they observed Mullican and further observed that he matched the physical description of the individual who committed the robbery. A search of Mullican revealed approximately five thousand dollars in United States currency.
Subsequent to Mullican's arrest, FBI agents obtained a consent to search the van and the mobile home. In the mobile home agents found a duffel bag which matched the description of the bag that had been used in the robbery. The occupants of the mobile home stated that Mullican had been staying with them prior to the robbery and that previously Mullican had said that he had robbed banks in the past and could get away with it. The occupants also said that they had loaned the mini van which had been found outside the mobile home to Mullican and when he returned to the mobile home after the robbery Mullican came into the mobile home and said that their money problems were over.
On the day of the robbery and at all times material to the charge in the indictment, the deposits of the Sevier County Bank, Pigeon Forge, Tennessee, were insured by the Federal Deposit Insurance Corporation. [Criminal Action No. 3:03-cr-134, Court File No. 17, Factual Basis, pp. 1-2].
Mullican also agreed, as part of his plea agreement, that he would be sentenced as a career offender to a term of imprisonment of 235 months.
The Defendant acknowledges that he is a career offender under section 4B1.1 of the United States Sentencing Guidelines and pursuant to rule 11(c)(1)(C) agrees that the Court will impose a 235 month sentence, the maximum sentence applicable to him under that guideline provision. The parties agree that if the guideline range is [sic] applicable to the Defendant is determined to allow for a sentence higher than 235 months the United States will have the option to withdraw from this plea agreement.
[Id., Court File No. 16, Plea Agreement, p. 4, ¶ 9].
Mullican was in fact sentenced to a term of imprisonment of 235 months on the armed bank robbery charge, to be followed by three years on supervised release. In addition, Mullican's supervised release in Criminal Action No. 1:96-cr-39 (E.D. Tenn.) was revoked for a second time and he was sentenced to a consecutive term of ...