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Avent v. United States

January 29, 2007

BETTY AVENT
v.
UNITED STATES OF AMERICA



The opinion of the court was delivered by: J. Ronnie Greer United States District Judge

MEMORANDUM OPINION

Betty Avent ("petitioner"), a federal prisoner, has filed this pro se motion to vacate, set aside, or correct her sentence pursuant to 28 U.S.C. § 2255. [Doc.1]. The petitioner filed no memorandum or other pleading in support of her motion. The United States has responded in opposition to the motion and has filed the affidavit of petitioner's trial counsel in support of its opposition. [Doc. 8]. The petitioner filed no reply to the government's response. The Court has determined that the files and records of the case conclusively establish that the petitioner is not entitled to relief under § 2255 and that, therefore, no evidentiary hearing is necessary. For the reasons which follow the petitioner's motion pursuant to § 2255 lacks merit and will be DENIED.

I. Procedural Background

On November 18, 2003, an indictment was returned by the federal grand jury charging petitioner with participation in a drug conspiracy. On March 1, 2004, the United States filed a notice of enhanced penalties based on petitioner's prior drug felony convictions. On April 26, 2004, the petitioner pleaded guilty to Count 1 of the indictment which charged her with conspiracy to distribute and possess with the intent to distribute at least 50 grams or more of crack cocaine in violation of 21 U.S.C. §§ 846 and 841(a)(1)(A) pursuant to a plea agreement with the United States.

As a result of her guilty plea, petitioner was subject to a statutory mandatory minimum sentence of life imprisonment pursuant to 21 U.S.C. § 841(b)(1)(A).*fn1 On November 22, 2004, petitioner was sentenced to a term of imprisonment of 210 months after the Court's grant of a motion by the United States for a downward departure on the grounds of petitioner's substantial assistance.*fn2 The petitioner did not take a direct appeal from the judgment of conviction entered on December 8, 2004.*fn3 This § 2255 motion was timely filed on November 18, 2005 alleging ineffective assistance of counsel.

II. Standard of Review

This Court must vacate and set aside petitioner's sentence if it finds that "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 Governing Rules, the Court is to consider initially whether the face of the motion itself, together with the annexed exhibits and prior proceedings in the case, reveal 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, she must set forth facts which entitle her 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 which 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). To warrant relief for a non-constitutional error, petitioner must show 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). In order to obtain collateral relief under § 2255, a petitioner must clear a significantly higher hurdle than would exist on direct appeal. United States v. Frady, 456 U.S. 152 (1982).

III. Factual Background

Petitioner stipulated at the time of her guilty plea that from approximately January, 2001 and continuing to on or about November 18, 2003, she conspired with at least one other person to distribute and possess with intent to distribute at least 500 grams but less than 1.5 kilograms of crack cocaine. She admitted that during the time period of the conspiracy, customers in the Eastern District of Tennessee would wire drug proceeds to her and co-conspirator Garrett Johnson via Western Union in the State of North Carolina. After each wire transfer was confirmed, the crack cocaine would be delivered to the customer. Records obtained from Western Union show more than 40 wire transfers, sometimes more than one wire transfer on a given day, often for the same amount, totaling more than $60,000.00. Between 18 and 50 ounces of crack cocaine were transported weekly from North Carolina to the Eastern District of Tennessee during the conspiracy. On November 24, 2003, petitioner was interviewed, and, after being advised of her rights, admitted that she permitted Johnson to cook powder cocaine into crack cocaine at her residence. Petitioner admitted that she allowed several vehicles to be titled in her name and that she wired drug proceeds and received wire transfers of drug proceeds for Johnson. Johnson paid cash to petitioner in return for titling the vehicles in her name, wiring and receiving wire transfers of drug proceeds and permitting drugs to be stored at her residence.

Because of the drug amount in this case, stipulated to by the petitioner, and petitioner's prior felony drug convictions, petitioner was subject to a statutory mandatory minimum sentence of life ...


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