The opinion of the court was delivered by: James H. Jarvis United States District Judge
This is a motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 filed by petitioner Jerry Franklin Parks ("Parks"). For the following reasons, the § 2255 motion will be DENIED and this action will be DISMISSED.
This court must vacate and set aside Parks' 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, Parks "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 Parks 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).
Parks was convicted by a jury of two counts of being a felon in possession of a firearm and one count of being a felon in possession of ammunition, in violation of 18 U.S.C. § 922(g)(1); he was acquitted of one count of being a felon in possession of ammunition. Parks was sentenced as an armed career offender to a term of imprisonment of 250 months, pursuant to 18 U.S.C. § 924(e). The conviction was affirmed on direct appeal. United States v. Parks, 30 Fed.Appx. 534 (6th Cir.), cert. denied, 535 U.S. 1087 (2002). In support of his § 2255 motion to vacate sentence, Parks alleges that he was improperly sentenced as an armed career criminal, for several reasons, and that he received ineffective assistance of counsel during sentencing and on appeal.
Pursuant to the Armed Career Criminal Act, a felon in possession of a firearm shall be imprisoned not less than 15 years, if the person has three previous convictions for a violent felony or serious drug offense. 18 U.S.C. § 924(e)(1). A serious drug offense under state law is one "involving manufacturing, distributing, or possessing with intent to manufacture or distribute a controlled substance ..., for which a maximum term of imprisonment of ten years or more is prescribed by law." Id. § 924(e)(2)(A)(ii). A violent felony is "any crime punishable by imprisonment for a term exceeding one year," that (i) "has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." Id. § 924(e)(2)(B).
Parks first alleges that, in sentencing him as an armed career criminal, the court relied on prior felony convictions that were obtained when Parks was not represented by counsel. He specifically refers to a 1959 conviction for burglary, larceny, and larceny of a motor vehicle; four counts of burglary from 1959; and a 1963 escape conviction. According to Parks, an uncounseled conviction cannot be used to enhance a sentence. See Custis v. United States, 511 U.S. 485, 487 (1994). Parks' claim lacks merit.
The convictions to which Parks refers were not used by the court in determining that Parks was an armed career criminal, nor did Parks receive any criminal history points for those convictions. Parks was found to be an armed career criminal on the basis of the following convictions: a 1984 conviction for third degree burglary; a 1985 conviction for damage by means of explosive; and a 1994 conviction for possession with intent to distribute cocaine hydrochloride. [Criminal Action No. 3:98-cr-162, Presentence Investigation Report, pp. 11-12, ¶¶ 46, 47, & 49].
Parks next alleges that his Fifth and Sixth Amendment rights were violated because the indictment did not allege facts sufficient to charge him as an armed career criminal; the grand jury did not charge him with being an armed career criminal; and the trial jury made no factual determination that would constitute a basis for sentencing him as an armed career criminal. Parks relies on the Supreme Court decisions of Jones v. United States, 526 U.S. 227 (1999) and Apprendi v. New Jersey, 530 U.S. 466 (2000).
In Jones, the U.S. Supreme Court held that the provisions of the carjacking statute establishing higher penalties to be imposed when the offense resulted in serious bodily injury or death set forth additional ...