The opinion of the court was delivered by: Chief Judge Curtis L. Collier
This matter comes before the Court on the motion of pro se petitioner Kendrick L. Bugg ("Petitioner") to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (Court File No. 1, "Petition"). Petitioner filed a memorandum in support of his Petition (Court File No. 1, "Petitioner's memorandum"). Pursuant to the Court's Order (Court File No. 3), the Government filed a response to Petitioner's motion (Court File No. 4, "Government's Response"). Petitioner then requested to file a traverse to the Government's response (Court File No. 5) and the Court granted Petitioner's request (Court File No. 6).*fn1 The Court finds the materials thus submitted, together with the complete record of the underlying criminal case,*fn2 conclusively show Petitioner is not entitled to relief on the claims asserted in his Petition. Accordingly, the Court will decide those matters without an evidentiary hearing, see United States v. Todaro, 982 F.2d 1025, 1028 (6th Cir.), cert. denied, 508 U.S. 943, 113 S.Ct. 2423, 124 L.Ed. 2d 644 (1993), and will DENY Petitioner's motion for the reasons stated herein.
I. FACTUAL AND PROCEDURAL BACKGROUND
On June 25, 2002, the Grand Jury returned a five-count Superceding Indictment against Petitioner and co-defendant David Shropshire ("Shropshire").*fn3 (Crim. Court File No. 18). Count One charged Petitioner with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g); Count Three charged Petitioner with a Hobbs Act robbery offense in violation of 18 U.S.C. § 1951. Counts Four and Five each charged Petitioner with brandishing a firearm in furtherance of the robbery in violation of 18 U.S.C. § 924(c)(1)(A)(ii). (Id.). At the conclusion of a four day jury trial before the Court, the jury found Petitioner guilty on Counts One, Three, Four and Five of the Superseding Indictment. (Crim. Court File No. 88). On April 4, 2003, the Court sentenced Petitioner to 324 months of imprisonment, which included 120 months on Count One and 240 months on Count Three to be served concurrently and 84 months on each of Counts Four and Five to be served concurrently and consecutively to Counts One and Three. (Crim. Court File No. 103, Judgment).
On appeal, the United States Court of Appeals for the Sixth Circuit (the "Sixth Circuit") affirmed Petitioner's convictions and sentence on June 29, 2004. United States v. Bugg, 105 Fed. Appx. 25, 27, 2004 WL 1491643 (6th Cir. June 29, 2004), cert. denied, 543 U.S. 975 (November 1, 2004). The underlying facts presented at trial, summarized by the Sixth Circuit, are as follows:
In March 2002, two black men with firearms robbed a store owner at his Gas-N-Go.
After taking his wallet, about $100 from the register, and some Schlitz malt liquor, the men drove off in a maroon Grand Am Pontiac car.
The store owner called 911, and approximately ten to fifteen minutes later Detective Michael Early arrived and interviewed him about the robbery. Early put out a "BOLO" (be on the look out) for the robbers' maroon Grand Am. After hearing the BOLO, Detective Robert Evans stopped two black males in a maroon Grand Am. Evans instructed the driver, Bugg, to put his hands up. Bugg bent down, tucked something into his waist and bolted from the car with a gray sweatshirt in his hands. Evans chased Bugg and temporarily lost sight of him, but then caught up to him hiding in the woods, lying down with his hands tucked into the sweatshirt. Bugg ignored Detective Evans's three requests for him to put his hands up. Evans shot at Bugg, who put his hands up immediately.
After apprehension, Bugg asked Evans-"Why did you shoot at me? I didn't have a gun. I left it in the car." To which Evans replied "Well I thought you had a gun." A gun was discovered near Bugg's hiding spot. In the car were another gun, two masks, and Schlitz malt liquor. Finally, Bugg and the passenger each had $49. 105 Fed.Appx. 25, *26, 2004 WL 1491643, *1. According to the Presentence Investigation Report ("PSR"), the gun found near Petitioner's hiding spot was a .38 caliber pistol and the gun found in the Grand Am was a Lorcin .380 semi-automatic pistol. (PSR at ¶¶ 10-12). Shorpshire was also apprehended near the scene of the stop. After being transported to the police department and questioned, Shropshire admitted to the robbery and implicated Petitioner. (Id.).
Prior to Petitioner's sentencing hearing, the PSR was prepared and provided to the parties. According to the PSR, Petitioner qualified as a career offender under USSG § 4B1.1 and his total offense level was 32. (PSR at ¶ 33). With a criminal history category of VI, Petitioner's guideline range as to Counts One and Three was 210 to 262 months. (Id. at ¶ 78). Counts Four and Five were merged for the purposes of sentencing. Petitioner's guideline range for Counts Four and Five was a statutory mandatory consecutive 84 months, resulting in an effective guideline range of 294 to 346 months. (Id.). The Court chose a sentence of 324 months, which was in the middle of the effective guideline range. (Crim. Court File No. 103).
On November 1, 2005, Petitioner timely filed the present motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. (Crim. Court File No. 125; Court File No. 1.) Petitioner now raises three claims of ineffective assistance of counsel in his Petition and Memorandum (Court File Nos. 1, 2).*fn4 For the reasons stated below, these claims provide no basis to grant his Petition.
Section 2255 of Title 28 of the United States Code permits a prisoner in custody under sentence of a federal court to move the court that imposed the sentence to vacate, correct, or set aside that sentence, on the grounds: the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack . . . .
28 U.S.C. § 2255. This Court has jurisdiction under 28 U.S.C. § 1331. Petitioner has the burden of establishing any claim asserted in the petition. See Bowers v. Battles, 568 F.2d 1, 5 (6th Cir. 1977); Mayes v. United States, 93 F. Supp. 2d 882, 886 (E.D. Tenn. 2000).
Where a constitutional error is alleged, in order to obtain relief under § 2255 the record must reflect a constitutional error of such magnitude it had a substantial and injurious effect or influence on the proceedings. See Brecht v. Abrahamson, 507 U.S. 619, 637-38, 113 S.Ct. 1710, 1721-22, 123 L.Ed. 2d 353 (1993); Watson v. United States, 165 F.3d 486, 488 (6th Cir. 1999). In order to prevail on a § 2255 motion alleging non-constitutional error, a petitioner must show a "fundamental defect in the proceedings which necessarily results in a complete miscarriage of justice or an egregious error violative of due process." Riggs v. United States, 209 F.3d 828, 831 (6th Cir.), cert. denied, 531 U.S. 884, 121 S.Ct. 200, 148 L.Ed. 2d 140 (2000); Gall v. United States, 21 F.3d 107, 109 (6th Cir. 1994). Thus, "[a] motion brought under § 2255 must allege one of three bases as a threshold standard: (1) an error of ...