The opinion of the court was delivered by: R. Allan Edgar United States District Judge
Arthur Quentice Jones ("Jones"), has filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 [Court File No.1]. For the reasons which follow, the Court has determined a hearing is not necessary and concludes that the § 2255 motion lacks merit and will be DENIED. Jones is not entitled to relief under § 2255.
On January 10, 2001, a United States grand jury sitting for the Eastern District of Tennessee, Chattanooga Division, returned a fifteen-count indictment charging Jones with various drug trafficking offenses. Jones was charged in Count One through Count Four and Count Six through Court Fifteen with distributing cocaine base, on fourteen different dates, in violation of 21 U.S.C. § 841(a)(1). In Count Five, Jones was charged with possessing cocaine base with the intent to distribute on January 3, 2000, in violation of Title 21 U.S.C. § 841(a)(1).
On March 14, 2001, a notice of intent to use prior convictions to enhance punishment was filed by the United States Attorney's Office. Jones exercised his right to trial which began on March 15, 2001. On March 16, 2001, a jury convicted him on Counts Two through Fifteen.
On July 13, 2001, Jones was sentenced to a total term of 262 months imprisonment on Counts Two through Fifteen--262 months on each Count to be served concurrently. The Court also imposed a term of 6 years supervised release on each Count to be served concurrently. Jones pursued a direct appeal. Jones' convictions and sentences were affirmed on direct appeal and a petition for writ of certiorari was denied on October 6, 2003. United States v. Jones, 2003 WL 1949611, at *1-2 (6th Cir. Apr. 23, 2003), cert. denied, 540 U.S. 913 (2003). Jones'§ 2255 motion raising two alleged instances of ineffective assistance of counsel was timely filed on or about October 4, 2004.
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, Jones 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 Jones 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 PSR prepared by the United States Probation Office:
20. In December of 1999, officers of the 12th Judicial Drug Task Force targeted Mr. Jones as a supplier of crack cocaine in the community of South Pittsburg, Tennessee. Using a Confidential Informant (CI), officers ...