The opinion of the court was delivered by: R. Allan Edgar United States District Judge
The defendant, Ernest T. Woodruff Jr. ("Woodruff"), has filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 [Court File No.20].*fn1 The Clerk is DIRECTED to serve a copy of the motion and the Court's Memorandum Opinion and Judgment on the United States Attorney. For the reasons stated below, the United States Attorney shall not be required to file an answer or other pleading to the motion. The Court has determined a hearing is not necessary and concludes that the § 2255 motion lacks merit and will be DENIED.
On September 13, 2005, a United States grand jury sitting for the Eastern District of Tennessee, Chattanooga Division, returned a six-count indictment charging Woodruff with weapon and bank robbery crimes. Count One charged that on October 21, 2003, Woodruff and another, aiding and abetting each other, took by force, violence, and intimidation, money belonging to Union Planters Bank in Chattanooga, Tennessee, a bank whose deposits were insured by the Federal Deposit Insurance Corporation, and during the commission of the robbery putting in jeopardy the life of a person by the use of a deadly weapon, in violation of 18 U.S.C. §§ 2113(a), 2113(d), and 2. Count Two of the indictment charged Woodruff and another, aided and abetted by one another, used, carried, and brandished a firearm during and in relation to a crime of violence, i.e., the bank robbery charged in Count One, in violation of 18 U.S.C. § 924(c)(1)(A)(ii) and 2. Woodruff was charged in Count Three, with robbing a federally insured bank in Chattanooga, Tennessee on December 5, 2003, and putting another person's life in jeopardy by use of a deadly weapon, in violation of 18 U.S.C. § 2113(a), 2113 (d) and 2. Count Four charged Woodruff and another, aided and abetted by one another, used, carried, and brandished a firearm during and in relation to a crime of violence, the bank robbery charged in Count Three of the indictment, in violation of 18 U.S.C. § 924(c)(1)(A)(ii) and 2. In Count Five, Woodruff was charged with robbing, by use of a deadly weapon, Union Planters Bank, a federally insured bank, in Chattanooga, Tennessee on March 31, 2004, in violation of 18 U.S.C. § 2113(a) and 2113(d) and 2. Count Six charged Woodruff and another, aided and abetted by one another, used, carried, and brandished a firearm during and in relation to a crime of violence, i.e., the bank robbery Charged in Count Five of the Indictment in violation of 18 U.S.C. § 924(c)(1)(A)(ii) and 2.
On November 7, 2005, Woodruff pleaded guilty to Counts One through Five of the Indictment with the benefit of a plea agreement. On February 13, 2006, Woodruff was sentenced to a total term of 462 months imprisonment--78 months on each of Counts One, Three, and Five to be served concurrently; 84 months on Count Two; and 300 months on Count Four. The terms of imprisonment on Counts Two and Four run consecutively to each other and to all other counts. Woodruff did not pursue a direct appeal from the judgment of conviction. Woodruff's judgment was entered on February 17, 2006, and he had ten (10) days, until March 3, 2006,*fn2 to file a notice of appeal. When a § 2255 movant does not pursue a direct appeal to the court of appeals, his conviction becomes final on the date on which the time for filing such appeal expired. Sanchez-Castellano v. United States, 358 F.3d 424, 425 (6th Cir. 2004). Therefore, the one-year statute of limitations began to run on March 3, 2006. Therefore, Woodruff's motion was timely filed on or about February 6, 2007.
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, reveals 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) (citation omitted)(§ 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).
Further, a § 2255 motion is not a substitute for a direct appeal and it cannot do service for an appeal. Bousley v. United States, 523 U.S. 614, 621 (1998); United States v. Timmreck, 441 U.S. 780, 784 (1979); Grant v. United States, 72 F.3d at 506; United States v. Walsh, 733 F.2d 31, 35 (6th Cir. 1984). Thus, Woodruff cannot use a § 2255 motion to litigate the issues that should have been presented and decided on direct appeal unless cause is shown for the tardy challenge and "actual prejudice" resulting from the error is demonstrated, United States v. Frady, 456 U.S. 152, 167-68 (1982), or Woodruff shows that he is actually innocent of the crime. See Bousley v. United States, 523 U.S. at 622. Issues which are presented and considered on direct appeal cannot be litigated again in a § 2255 proceeding absent exceptional circumstances or an intervening change in the law. Wright v. United States, 182 F.3d 458, 467 (6th Cir. 1999); Jones v. United States, 178 F.3d 790, 796 (6th Cir.), cert. denied, 528 U.S. 933 (1999); Oliver v. United States, 90 F.3d 177, 180 (6th Cir. 1996); DuPont v. United States, 76 F.3d 108, 110-11 (6th Cir. 1996).
The following pertinent facts are taken from the Presentence Investigation Report ("PSR") prepared by the United States Probation Office:
10. On October 21, 2003, at approximately 3:54 p.m., the Union Planters Bank, located at 830 Eastgate Loop in Chattanooga, Tennessee, was robbed by two masked, gloved, black males who were armed with handguns. This robbery was a "takeover" style, with victim bank employees forced to the floor. The robbers forced a teller to open the bank vault and escaped with $120,885 in United States currency, which was insured by the Federal Deposit Insurance Corporation. This amount includes approximately $6,100 in mutilated monies which were accumulated by the bank for return to the Federal Reserve.
11. On December 5, 2003, at approximately 10:35 a.m., the AmSouth Bank located at 3303 Cummings Highway, Chattanooga, Tennessee was robbed by two masked, gloved, black males who were armed with handguns. This robbery was a "takeover" style, with victim bank employees forced to the floor. The robbers forced a teller to open the bank vault and escaped with $45,675 in United States currency which was insured by the Federal Deposit Insurance ...