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 Brian C. Nimmons ("Nimmons"). For the following reasons, the § 2255 motion will be DENIED and this action will be DISMISSED.
This court must vacate and set aside Nimmons' 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, Nimmons "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 Nimmons 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).
Nimmons pleaded guilty to two counts of distribution of five grams or more of cocaine base (crack), one count of distribution of cocaine base (crack), one count of possession with intent to distribute five grams or more of cocaine base (crack), and one count of possession of a firearm during and in relation to a drug trafficking offense; a second count of possession of a firearm during and in relation to a drug trafficking offense was dismissed pursuant to the plea agreement. Nimmons was sentenced to concurrent terms of imprisonment of 60 months on each drug charge and a consecutive term of 60 months on the firearm charge, for a total effective sentence of 120 months. He did not appeal. In support of his § 2255 motion, Nimmons alleges several instances of 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), Nimmons 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 presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).
Nimmons' first allegations of ineffective assistance of counsel are based upon his claim that not all cocaine base is crack cocaine. Nimmons alleges his attorney should have objected at sentencing when the government failed to carry its burden of proof in distinguishing between cocaine base and crack cocaine. According to Nimmons, he pleaded guilty to cocaine base, not crack, and he would not have pleaded guilty had he known he was pleading to crack instead of cocaine base. In a related allegation, Nimmons claims the government failed to prove by a preponderance of evidence that he possessed crack and thus his attorney should have objected to his enhanced sentence. Finally, with regard to this issue, Nimmons alleges his attorney should have objected to the laboratory reports which indicated the drugs were crack cocaine.
Nimmons' allegations are clearly without merit. The indictment in this case charged him with drug offenses involving "a mixture or substance containing a detectable amount of cocaine base ('crack'), a Schedule II narcotic controlled substance." [Criminal Action No. 3:02-cr-54, Court File No. 2, Indictment, pp. 1-2, Counts One-Four]. In his plea agreement, Nimmons stated his agreement to plead guilty to charges involving "crack" cocaine. [Id., Court File No. ...