The opinion of the court was delivered by: J. Ronnie Greer United States District Judge
Ernest Wayne Mitchell ("petitioner" or "Mitchell"), a federal prisoner, has filed this pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, along with a supporting memorandum. [Doc.1]. The United States has responded in opposition to the motion [Doc. 3] and the petitioner has replied to the government's response. [Doc. 5]. The matter is now ripe for disposition. 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, therefore, no evidentiary hearing is necessary. For the reasons which follow, the petitioner's motion pursuant to § 2255 lacks merit and will be DENIED.
On January 27, 2004, a four count indictment was returned by the federal grand jury charging the defendant with various drug and firearm offenses.
On May 24, 2004, the defendant pleaded guilty, pursuant to a plea agreement with the government, to Counts 1, 2 and 3 of the indictment. Counts 1 and 3 charged the defendant with distribution of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) and Count 2 charged the defendant with possession of a firearm in furtherance of a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1)(A). Pursuant to the terms of the plea agreement, Count 4 of the indictment was dismissed at sentencing.
On December 13, 2004, Mitchell was sentenced to concurrent 46 month terms of imprisonment as to Counts 1 and 3 and to a statutory mandatory consecutive 60 month sentence as to Count 2, for a net effective sentence of 106 months. Judgment was entered on December 16, 2004. No direct appeal was filed and petitioner timely filed this § 2255 motion on October 21, 2005.
This Court must vacate and set aside the 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, he must set forth facts which entitle him 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) (§ 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 requires a showing 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).
At the time of his guilty plea, Mitchell stipulated to the following facts, taken from the agreed factual basis filed in this case:
The United States of America, by its counsel, Robert M. Reeves, Assistant United States Attorney for the Eastern District of Tennessee, defendant, Ernest Wayne Mitchell, and his attorney Nikki C. Pierce, hereby stipulate that the following facts are true and accurate.
On November 12, 2003, an undercover officer with the Bristol Police Department, in Sullivan County, Tennessee, placed a call to Ernest Wayne Mitchell. Mitchell agreed to sell the undercover officer an eight-ball of crystal meth at the Mad Greek Restaurant on Volunteer Parkway in Bristol. Mitchell arrived at the location designated and requested the undercover officer meet him on a hill across the street. A female accompanying Mitchell got out of the vehicle and went toward a garage and the undercover officer met with Mitchell and discussed the purchase of the crystal meth. Mitchell provided the officer with ...