The opinion of the court was delivered by: Chief Judge Curtis L. Collier
This matter comes before the Court on the pro se motion of Albert Donnie Wilson ("Wilson") to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (Court File No. 1). The Government filed a response to Wilson's motion (Court File No.7). The Court finds the materials thus submitted, together with the complete record of the underlying criminal case,*fn1 conclusively show Wilson is not entitled to relief on the claims asserted in his § 2255 motion. 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 (1993), and will DENY Wilson's motion for the reasons stated herein.
I. FACTUAL AND PROCEDURAL BACKGROUND
Wilson was indicted on July 8, 2003. He was charged in Counts One and Three with attempt to manufacture methamphetamine in violation of 21 U.S.C. § 846 and in Counts Two and Four with possession of equipment, chemicals, products and materials which may be used to make methamphetamine in violation of 21 U.S.C. § 843(a)(6). (Crim. Court File No. 10).
Wilson pleaded guilty on September 4, 2003, to Count Three of the Indictment (Crim. Court File No. 24). The factual basis filed with the Court stated:
On June 13, 2003, in McMinn County, in the Eastern District of Tennessee, firemen responded to a fire at the residence of Albert Donnie Wilson and Traci Evans. Wilson and Evans had only recently rented the residence, which was almost completely destroyed by the fire. Firemen and police found inside the residence, and outside next to the residence, various items used in the making of methamphetamine, including iodine crystal, Coleman fuel, . . . . In Wilson's car, parked nearby, police found iodine crystal, HEET in line anti-freeze, 200 coffee filters, tubing, muriatic acid, propane fuel, a mason jar containing a milky white liquid, and a fire extinguisher. Wilson was there when the firemen arrived. Evans was there when the fire started, but she went to a local hotel before firemen arrived. Both were advised of and waived their Miranda rights.
Wilson stated he had been cooking methamphetamine when the fire started. He said he was not a drug pusher, he just made methamphetamine for he and Evans to use. Evans stated she had gone to Wal-Mart to get some "fuel," went back to the residence, and left when the fire started. On March 29, 2003, in Monroe County, in the Eastern District of Tennessee, Wilson and Evans were together in an apartment when police knocked on their door. Inside the apartment police found acetone, camping fuel, HEET in line antifreeze, pseudoephedrine, Red Devil lye, used coffee filters, 35 cases of matches, 200 new coffee filters, aluminum foil, and tubing. (Crim. Court File No. 25).
The probation officer prepared a Presentence Report ("PSR") and distributed the original draft to the parties on December 2, 2003 and distributed the revised PSR on December 16, 2003. The revised draft of the PSR noted Wilson should be held accountable for 30.24 grams of pseudoephedrine, which converted to 302.4 kilograms of marijuana, according to Application Note 10 to USSG. §2D1.1 (PSR, ¶¶18-20). This set the base offense level at 26 (Id.). The PSR also recommended a three-level enhancement for creating a substantial risk of harm to the responding firefighters and the neighbors in close proximity to the burning trailer (Id. at ¶ 26). Wilson received a three-level reduction for acceptance of responsibility, resulting in an offense level of 26 (Id. at ¶¶ 31-36). His criminal history category was III (Id. at ¶ 70). The maximum term of imprisonment Wilson faced with Count Three was 30 years (Id. at ¶ 69). Wilson's counsel, attorney Anthony Martinez, filed no objections to the PSR on Petitioner's behalf. On December 19, 2003, Wilson was sentenced to 87 months (7.25 years). (Crim. Court File No. 29).
Wilson did not appeal his sentence to the United States Court of Appeals for the Sixth Circuit (the "Sixth Circuit"). Therefore, his sentence became final ten days after he was sentenced. Wilson claims he received ineffective assistance of counsel for a variety of reasons. For the reasons stated below, these claims provide no basis to grant his motion.
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. The movant has the burden of establishing any claim asserted in the petition. See Bowers v. Battles, 568 F.2d 1, 5 (6th Cir. 1977), cert. denied, 436 U.S. 910 (1978); 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 that it had a substantial and injurious effect or influence on the proceedings. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 (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 (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 constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law that was so fundamental as to render the entire proceeding invalid." Weinberger v. United States, 268 F.3d 346, 351 (6th Cir. 2001), cert. denied, 535 U.S. 967.
All of Petitioner's claims rest on allegations of ineffective assistance of counsel. The Sixth Amendment provides, in pertinent part, "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense." U.S. Const. amend. VI. A defendant has a Sixth Amendment right not just to counsel, but to "reasonably effective assistance" of counsel. Strickland v. Washington, 466 U.S. 668, 687 (1984). In Strickland, the Supreme Court set forth a two-pronged test 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. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable. 466 U.S. at 687. As with any other ...