The opinion of the court was delivered by: Edgar
These are two motions to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 filed by petitioner Jackie Wilkins, Sr. ("Wilkins"). For the following reasons, the § 2255 motions will be DENIED and these actions will be DISMISSED.
This court must vacate and set aside Wilkin'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, Wilkins "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 Wilkins 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).
Wilkins pleaded guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1); there was no plea agreement. On September 29, 2003, he was sentenced, as an armed career criminal under 18 U.S.C. § 924(e)(1), to a minimum mandatory term of imprisonment of 180 months. Wilkins did not appeal his conviction or sentence. Wilkins' judgment of conviction became final on October 14, 2003. Sanchez-Castellano v. United States, 358 F.3d 424 (6th Cir. 2004) ("[A]n unappealed federal criminal judgment becomes final ten days after it is entered, for purposes of the § 2255 statute of limitations, at least where there has been no district court extension of appeal time for good cause or excusable neglect.").
The government stated the factual basis for Wilkins' plea as follows:
On May 6 of this year, the defendant, who apparently is a landlord, had a dispute with a couple of his tenants. During the course of the confrontation with them, a fire -- he pulled out a firearm; the firearm that's described in the indictment. The tenants called the Coffee County Sheriff's Department. This occurred in Beech Grove, I believe, Your Honor. Coffee County Sheriff's Department, they arrived at the scene.
In the meantime, the defendant placed the gun in the back of his truck or behind the seat of his truck. When confronted by the police, he admitted that he did have a firearm. They went and searched in the truck pursuant to his consent and found the gun that was described.
The gun was manufactured outside the state of Tennessee. The defendant has at least one prior felony conviction. [Criminal Action No. 4:03-cr-24, Court File No. 22, Transcript of Guilty Plea Hearing, pp. 13-14]. Wilkins agreed with the factual basis, with the exception that he denied pointing the gun at anyone. [Id. at 14-15].
Wilkins filed his original motion to vacate, set aside or correct sentence on April 7, 2004, and alleged three instances of ineffective assistance of counsel. [Civil Action No. 4:04-cv-28]. On May 13, 2004, he amended his § 2255 motion to allege that 18 U.S.C. § 922(g) is unconstitutional in light of the Second Amendment. Wilkins again amended his § 2255 motion, on August 30, 2004, to expand upon previous claims and to allege additional instances of ineffective assistance of counsel, including claims that counsel should have challenged the constitutionality of 18 U.S.C. § 922(g) and that counsel should have raised an objection to his sentence for the reasons set forth in Blakely v. Washington, 542 U.S. 296 (2004).
Before the government filed its answer to the original § 2255 motion, Wilkins filed another motion to vacate, set aside or correct sentence, which was docketed under a separate civil case number. [Civil Case No. 4:05-cv-22]. In that motion, Wilkins challenges his sentence based upon the Blakely decision, as well as the decisions in Apprendi v. New Jersey, 530 U.S. 466 (2000), and United States v. Booker, 543 U.S. 220 (2005).
The court transferred the second § 2255 motion to the Sixth Circuit, because Wilkins had not received permission for filing a second or successive motion. The Sixth Circuit subsequently remanded the second § 2255 motion for consideration by this court. The government then filed its consolidated response to the two § 2255 motions to vacate, set aside or correct sentence.
A. Constitutionality of 18 U.S.C. § 922(g)
Wilkins alleges that 18 U.S.C. § 922(g) is unconstitutional under the Second Amendment to the Constitution, which provides: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." U.S. Const. amend. II. Wilkins' argument lacks merit. See, e.g., United States v. Napier, 233 F.3d 394, 403 (6th Cir. 2000) ("Every circuit court which has had occasion to address the issue has upheld § 922 generally against challenges under the Second Amendment.") (citations omitted).
B. Ineffective Assistance of Counsel
In Strickland v. Washington, 466 U.S. 668 (1984) the United States Supreme Court established a two-part standard for evaluating claims of ineffective assistance of counsel:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Id. at 687.
To establish that his attorney was not performing "within the range of competence demanded of attorneys in criminal cases," McMann v. Richardson, 397 U.S. 759, 771 (1970), Wilkins must demonstrate that the attorney's representation "fell below an objective standard of reasonableness." Strickland v. Washington, 466 U.S. at 687-88. In judging an attorney's conduct, a court should consider all the circumstances and facts of the particular case. Id. at 690. Additionally, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the ...