The opinion of the court was delivered by: Jarvis
This is a motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 filed by petitioner Luis Castillo ("Castillo"). Castillo's motion to strike the first amended pleading and for leave to file a successive amended pleading will be GRANTED to the extent the motion to file the first amendment will be STRICKEN and the court will consider the timeliness of the successive amended pleading. Castillo's motion for an evidentiary hearing will be DENIED. For the following reasons, the § 2255 motion will be DENIED and this action will be DISMISSED. All other pending motions will be DENIED as MOOT.
This court must vacate and set aside Castillo'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, Castillo "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 Castillo 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).
Castillo was convicted by a jury of possession with intent to distribute cocaine hydrochloride, in violation of 21 U.S.C. § 841(a)(1). He was sentenced as a career offender to a term of imprisonment of 262 months. The judgment was affirmed on direct appeal.
United States v. Castillo, No. 99-5463, 2000 WL 1800481 (6th Cir. November 28, 2000), cert. denied, 532 U.S. 965 (2001).
The Sixth Circuit summarized the evidence against Castillo as follows:
On February 14, 1996, Teddy Bales, the Chief of Police for Wartburg, Tennessee, received an anonymous drug tip on his office answering machine. The female caller stated that a gray and black vehicle with Florida license plates, possibly driven by a Cuban, would be hauling a large quantity of drugs. The caller also linked the vehicle to a home on Old Mill Road known as the "Mossy" residence. Bales was familiar with the Mossy residence, as he had executed a narcotics search warrant there less than a year before. Bales also knew that occupants of the home had been arrested in connection with narcotics violations.
After receiving the anonymous tip, Bales and other officers began watching for the described vehicle. On his second trip past the Mossy residence, Bales observed a gray and black vehicle with Florida license plates located at the home. He then drove approximately a quarter of a mile down the road and turned around in a parking lot. As Bales did so, he observed the vehicle, which was a Mercury, traveling on Old Mill Road. Bales recognized the driver as Sherry Vespie, who he knew did not have a valid driver's license. The vehicle also contained two other occupants, appellant Castillo and an individual named Patricia Smith. After observing the Mercury, Bales positioned his car behind the vehicle, which stopped in the road. As Bales activated his overhead lights, Vespie slid across her seat into the passenger's position. Appellant Castillo, who had been in the front passenger's seat, exited the Mercury and walked around to the driver's side. At that time, Bales approached the stopped vehicle and obtained Castillo's driver's license. Castillo then accompanied Bales to the patrol car, where the Police Chief began to conduct a driver's license and criminal background check. While waiting for a response from the dispatcher, Bales mentioned his suspicion of drug activity and sought permission to search the Mercury, which was owned by Castillo. When Castillo refused to consent, Bales informed him that a canine unit would be called to sniff for drugs.
Shortly thereafter, Castillo indicated that he was cold, and Bales permitted him to retrieve a coat from his car. When Castillo reached the Mercury, however, he jumped inside and fled at a high rate of speed. Patricia Smith remained in the back seat as Castillo left the scene. Vespie was standing near the vehicle with other officers as Castillo fled, and she was hit on the leg by an open door.
Upon Castillo's unexpected departure, Bales and other officers pursued him for several miles. The pursuit ended when the officers discovered the Mercury in a ditch. Although Castillo and Smith were gone when the officers arrived, they discovered a blue bag in the woods near the vehicle. The bag contained approximately one-half kilogram of cocaine hydrochloride and $20,000 cash. After the officers located the car and the blue bag, Castillo was apprehended with the assistance of blood hounds.
At the time of the foregoing incident, Vespie was living at the Mossy residence, and she had known Castillo for a few weeks. Just before his encounter with Bales, Castillo had asked Vespie to retrieve a blue bag from the trunk of the Mercury and to bring it inside the Mossy residence so that he could change clothes. Castillo then took the bag into a bathroom for a few minutes. When Castillo reappeared, Vespie returned the blue bag to the trunk at his request. She then left the Mossy residence with Castillo and ...