The opinion of the court was delivered by: Edgar
The defendant, James W. Murray ("Murray"), has filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 [Court File No.1]. The Government opposes Murray's § 2255 motion. 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. Murray 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 one-count indictment charging Murray with possession of cocaine base with intent to distribute. On May 23, 2001, a three-count superseding indictment was filed. Murray was charged in Count One with conspiracy to distribute in excess of 50 grams of cocaine base (crack), a schedule II controlled substance, in violation of 21 U.S.C. § 846. Count Two of the indictment charged Murray with knowingly carrying a firearm during and in relation to the drug trafficking crime alleged in Count One of the superseding indictment in violation of 18 U.S.C. § 924(c). Murray was charged in Count Three, with possession and intent to distribute in excess of 50 grams of a mixture or substance containing cocaine base (crack), a schedule II controlled substance, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A).
Murray exercised his right to a trial in this matter which began on July 11, 2001, in Winchester, Tennessee. However, after the government began to present its evidence, the defendant changed his mind and requested permission to enter a plea of guilty. The Court permitted Murray to plead guilty to all three counts of the superseding indictment without the benefit of a plea agreement.
On October 22, 2001, Murray was sentenced to a total term of 248 months imprisonment--188 months on each of Counts One and Three, to be served concurrently and a term of 60 months on Count Two to be served consecutively to the terms imposed in Counts One and Three. Murray pursued a direct appeal from the judgment of conviction. Murray's convictions were affirmed by the United States Court of Appeals for the Sixth Circuit. See United States v. Murray, 66 Fed.Appx. 600 (6th Cir. June 2, 2003)(unpublished decision), available in 2003 WL 21277340, cert. denied, 540 U.S. 974 (2003). Murray's § 2255 motion attacking the sufficiency of the evidence; sufficiency of the indictment; counsel's effectiveness; the Court's denial of his motion to withdraw his guilty plea; and the application of the obstruction of justice enhancement to his sentence was timely filed on or about October 22, 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, Murray 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 Murray 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:
8. On April 3, 1999, officers of the Franklin County, Tennessee, Sheriff's Office stopped defendant James W. Murray, Jr., for improper display of vehicle registration. When the officers ran his information through the dispatcher, they learned that his driver's license had been suspended and that he had outstanding warrants for his arrest in Franklin County. Upon searching the defendant's vehicle, officers found a plastic bag containing white powder believed to be cocaine hydrochloride, along with a loaded Rossi .357 caliber revolver. In the pocketbook of the vehicle's passenger, Kim Turrentine, officers located rolling papers and a bag of suspected marijuana stems. Mr. Murray also had in his possession $11,920 in U.S. currency. (Although the defendant is suspected to have possessed cocaine hydrochloride during the course of this incident, due to the amount of crack cocaine possessed on December 11, 2000, the cocaine hydrochloride would have no effect on the base offense level and, therefore, will not be considered in the calculations. Furthermore, although the $11,920 represents the proceeds of drug trafficking, were it considered proceeds from the sale of cocaine hydrochloride, it also would have no impact on the base level offense level, due to the substantial quantity of crack cocaine the defendant possessed on December 11, 2000.*fn1 ) (emphasis in original)
9. Around 7:15 p.m. on December 11, 2000, James Murray Jr. caught a taxi cab in Nashville, Tennessee, and asked the driver (who was accompanied by a friend) to take him to Murfreesboro, Tennessee. Consistent with the cab company's policies, the driver requested that the defendant pay up-front for the fare because it would be so large. Mr. Murray paid $30 toward the approximate $60 fare.
10. As the cab entered the Murfreesboro area, the driver asked the defendant which exit he wanted to take. The defendant asked that the driver continue to travel east on Interstate 24. Around this time, the cab driver noticed that Mr. Murray was fidgeting with something in the waistband of his pants. The driver became concerned and turned on the interior light of the cab, in an effort to determine what the defendant had concealed in his waistband area.
11. When the cab driver reached Manchester, Tennessee, he advised the defendant that he needed to refuel the vehicle. The driver exited at exit number 110 and went to a nearby gasoline station. The driver entered the store, leaving his friend to pump the gasoline, and advised the store clerk to call police because he had a suspicious passenger in his cab. Officers from the Manchester Police Department responded to the scene and, after speaking with the cab driver, drew their weapons and asked the defendant to exit the cab. As the officers were performing a pat-down search of Mr. Murray, they noticed a foreign object just beneath the waistband of his pants. When they asked him to identify the object, he refused to answer. After asking a second time, the officers put the defendant on the ground and handcuffed him. They were then able to remove the object from his pants. They retrieved a brown paper bag with a rubber band around it. Inside the bag was a clear bag containing 289.2 grams of cocaine base "crack" (laboratory tested) (emphasis in original).
12. During the course of their investigation of James Murray, Drug Enforcement Administration (DEA) agents interviewed various individuals who are aware of his drug trafficking activities. Among these individuals were Willie Allgood and Michael Hayworth. DEA personnel advise that Mr. Allgood has substantiated that he sold at least twenty (20) ounces (567 grams) of cocaine base to defendant James Murray. Allgood was dealing in cocaine base between 1997 and 1998, according to agents. Mr. Hayworth admitted that, during 1998 and 1999, he and the defendant pooled their funds to purchase a total of between six and seven kilograms of cocaine hydrochloride (the majority of which they later cooked into cocaine base). Hayworth described traveling to Sacramento, California, with the defendant, where they purchased a kilogram of cocaine hydrochloride for $1,600. He also mentioned having gone to Nashville with the defendant to obtain cocaine hydrochloride. PSR at 3-5.
At the October 22, 2001 sentencing hearing, the Court found that Murray's criminal history category was I. Murray's total offense level was 36. Murray's offense level of 36, combined with his criminal history category of I and the 60 months for the firearm, resulted in a sentencing range of 248 to 295 months imprisonment. Murray was sentenced to 248 months of imprisonment, to be followed by five (5) years of supervised release.
Murray's § 2255 motion to vacate contains five claims. Murray raises one claim of insufficient evidence; one claim of insufficient indictment based on Apprendi v. New Jersey, 530 U.S. 466 (2000) and its progeny--Blakely v. Washington, 542 U.S. 296 (2004) and United States v. Booker, 543 U.S. 220 (2005); and seven instances of ineffective assistance of counsel. In addition, Murray challenges the application of a sentencing enhancement and the Court's denial of his motion to withdraw his guilty plea; both of these claims were raised on direct appeal. The Court will address each claim separately as raised by Murray.
Murray attacks the sufficiency of the evidence supporting his § 924(c) conviction. In conjunction with his insufficient evidence claim, he challenges the validity of the search of the car; the seizure of the weapon and cash; and the interrogation of him on the scene without being advised of his Miranda rights. Murray also claims he is actually innocent of this conviction because the government lacked evidence to sustain the conviction. Finally, Murray argues the Court lacked jurisdiction to accept his guilty plea on this charge because there was no proof the weapon was involved in interstate commerce.
Initially, the Court observes that Murray has procedurally defaulted these claims as he failed to raise them during his criminal proceedings or direct appeal.*fn2 This Court is barred from reaching the merits of these claims absent a showing of cause for the tardy challenge and actual prejudice resulting from the alleged error or a showing of actual innocence. Murray's failure to set forth a cause and prejudice argument to excuse his procedural default prevents this exception to the procedural default doctrine from providing him any relief for his default. As to his claim of actual innocence, Murray has failed to satisfy the actual innocence standard set forth in Murray v. Carrier, 477 U.S. 478 (1986), which requires him to show that "a constitutional violation has probably resulted in ...