The opinion of the court was delivered by: James H. Jarvis 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 Byron Wolfe ("Wolfe"). For the following reasons, Wolfe's motion to amend his § 2255 motion will be DENIED as untimely, the § 2255 motion will be DENIED and this action will be DISMISSED. All other pending motions will be DENIED as MOOT.
This court must vacate Wolf's conviction upon 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, Wolfe "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)).
If it plainly appears from the face of the motion, the annexed exhibits and the prior proceedings in the case that the petitioner is not entitled to relief in this court, the action should be summarily dismissed; an evidentiary hearing is not required. Rule 4 of the Rules Governing Section 2255 Proceedings For The United States District Courts; Baker v. United States, 781 F.2d 85, 92 (6th Cir. 1986).
Wolfe pleaded guilty to conspiracy to distribute and possess with intent to distribute MDMA (ecstasy), in violation of 21 U.S.C. §§ 846 and 841(a)(1) & (b)(1)(C), and using and carrying a firearm during and in relation to a drug trafficking offense, in violation of 18 U.S.C. § 924(c). In support of his plea agreement, Wolfe stipulated in writing to the following factual basis:
On April 6, 2000, task force agents with the Drug Enforcement Administration received information from a confidential informant that the defendant, along with co-defendant Christopher Jeffers, wanted to purchase a quantity of MDMA, also known as Ecstacy [sic], for $10,000. The task force agents arranged a reverse undercover operation whereby the defendant and co-defendant Jeffers purchased 3,400 MDMA pills for $5,000.
At the time of the arrest, defendant Wolfe drew a .380-caliber handgun from his waist band, which he was using for protection during the drug deal. During a struggle with the officers, the defendant dropped the weapon and attempted to flee on foot but was apprehended by officers. [Criminal Action No. 3:00-cr-072, Court File No. 35, Factual Basis, pp. 1-2, ¶¶ 1-2].
Wolfe was sentenced to a term of imprisonment of 27 months on the drug conviction and a consecutive term of imprisonment of 60 months on the firearm conviction, for a total effective sentence of 87 months. He did not appeal his conviction or his sentence.
In support of his § 2255 motion, Wolfe alleges the following: (1) his Fifth Amendment right to due process and his Sixth Amendment right to a jury trial were violated when he was subjected to sentencing enhancements by the trial court based upon a preponderance of the evidence; (2) the indictment was deficient because it failed to allege essential elements of the offense; (3) the court erred in calculating the quantity of MDMA for sentencing purposes; (4) the court erred in sentencing Wolfe based upon a drug weight inflated by sentencing entrapment; and (5) the court failed to give Wolfe a downward departure on the firearm charge based upon sentencing entrapment. After Wolfe filed his original § 2255 motion pro se, retained counsel filed an untimely motion for permission to file an amended motion pursuant to 28 U.S.C. § 2255.
A. Untimely Motion to Amend
Wolfe's original pro se § 2255 motion was timely filed; the motion for permission to amend was filed after the expiration of the statute of limitation.*fn1 The question, then, is whether the amendment is ...