The opinion of the court was delivered by: Edgar
Petitioner Christopher Shawn Walton has filed a motion to vacate, set aside, or correct a sentence pursuant to 28 U.S.C. § 2255. [Court Doc. No. 1]. The Government opposes Walton's motion. [Court Doc. No. 6]. As stated infra, this court has concluded that a hearing is not necessary and that Walton's Section 2255 motion is without merit and will be DENIED.
On June 13, 2001, a United States grand jury sitting for the Eastern District of Tennessee, Chattanooga Division, returned a five count indictment against Walton charging him with two counts of drug trafficking, possession of a firearm, and intimidating a witness. On September 12, 2001 the grand jury issued a superseding indictment that corrected the dates for the fourth and fifth counts.
Counts One and Two of the superseding indictment charged that on May 18, 2001, Walton possessed with the intent to distribute in excess of five grams of cocaine base and in excess of five hundred grams of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). Count Three charged that Walton possessed a firearm relating to the drug trafficking offenses of Counts One and Two in violation of 18 U.S.C. § 924(c). Count Four of the superseding indictment charged that on May 25, 2001 Walton intimidated a witness in violation of 18 U.S.C. § 1512. Count Five of the superseding indictment charged that on May 25, 2001 Walton threatened bodily injury to a witness in violation of 18 U.S.C. § 1513.
On September 19, 2001 a jury found Walton guilty on Counts One, Two, Three, and Five of the superseding indictment. The jury found Walton not guilty on Count Four. On March 11, 2002 Walton appeared before the court for sentencing. He received a sentence of 210 months of imprisonment on Counts One, Two, and Five to run concurrently and a mandatory consecutive 60-month sentence on the Count Three conviction. Judgment Proceedings, pp. 18-20.
Walton appealed his conviction and sentence to the Sixth Circuit Court of Appeals, and the Sixth Circuit affirmed the district court. See United States v. Walton, 68 F.App'x 591 (6th Cir. 2003). Walton filed a petition for certiorari to the U.S. Supreme Court, which the Supreme Court denied. See Walton v. United States, 540 U.S. 994, 124 S.Ct. 494, 157 L.Ed.2d 393 (2003).
Walton timely filed his Section 2255 motion. In his motion Walton raises three arguments. He claims that his trial counsel and his counsel on appeal were ineffective due to their: (1) failure to object to this court's use of the computation of drugs found in the Presentence Investigation Report ("PSR") for imposition of his sentence when the jury had not found the amount of drugs listed in the PSR beyond a reasonable doubt; (2) failure to object to the untruthful testimony of a government witness; and (3) failure to object to the government's improper vouching for the same government witness.
28 U.S.C. § 2255 states in part:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
28 U.S.C. § 2255; see also, Moss v. United States, 323 F.3d 445, 454 (6th Cir. 2003). As the Sixth Circuit has held, "[i]n order to prevail upon a section 2255 motion, the petitioners 'must allege one of three bases: (1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law that was so fundamental as to render the entire proceeding invalid.'" Moss, 323 F.3d at 454 (quoting Weinberger v. United States, 268 F.3d 346, 351 (6th Cir. 2001)).
Petitioner Walton has already exhausted his avenues of direct appeal, and he is now seeking collateral review for what he claims to have been ineffective assistance of counsel. The Sixth Circuit has held that "[o]n collateral review, a trial error is deemed harmless unless it had a 'substantial and injurious effect or influence in determining the jury's verdict. It is a 'well-settled principle that to obtain collateral review relief a prisoner must clear a significantly higher hurdle than would exist on direct appeal.'" Fair v. United States, 157 F.3d 427 (6th Cir. 1998) (quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); United States v. Frady, 456 U.S. 152, 166 (1982)). Petitioners must "show a 'fundamental defect' in the proceedings which necessarily results in a complete miscarriage of justice or an egregious error violative of due process." Fair, 157 F.3d at 430 (quoting Gall v. United States, 21 F.3d 107, 109 (6th Cir. 1994)).
[w]hen a section 2255 petitioner has procedurally defaulted his contentions by failing to assert them on direct appeal or via a previously litigated habeas application, he must further either prove (1) that he possessed good cause for failing to do so and would suffer actual prejudice if his averments are deemed precluded, or (2) that he is actually innocent of the subject offense.
Fair, 157 F.3d at 430 (citing Bouseley v. United States, 523 U.S. 614, 622, 118 S.Ct. 1604, 1611 (1998) (other citations omitted)).
The following facts are taken from the PSR prepared by the United States Probation Office:
9. On May 18, 2001, officers of the Chattanooga, Tennessee Police Department executed a search warrant on an apartment located at 714 Hooker Road in Chattanooga. The apartment was in the name of Lakisha Brown, the defendant's girlfriend. At the time of the search, officers found Ms. Brown, the defendant, and two other individuals named Recus Dejuan Langston and Jermaine LaDale Walton (the defendant's brother) in the apartment. From the apartment, officers seized 32.1 grams and 50.7 grams of marijuana, 9.4 grams of cocaine base, 1,088.5 grams of cocaine, and over $36,000 in cash. With the kilogram of cocaine, officers found a loaded 10 mm Glock semi-automatic pistol.
10. After the discovery of the items reflected above, the defendant denied living with his girlfriend Lakisha Brown at the 714 Hooker Road apartment. He continued this denial, even though officers found mail addressed to the defendant at the 714 Hooker Road address. Also after his arrest, the defendant asked one of the arresting officers "who is your friend?" The officer took that as a reference to a Confidential Informant used in the case, and that it could be considered a veil [sic] threat.
11. Approximately one week after his arrest, the defendant appeared in state court in Chattanooga, Tennessee on May 25, 2001, so charges for the instant offense could be dismissed in lieu of federal charges. While in the court room, the defendant turned to one of the arresting officers and stated "you're going to die, mother [f____]."
12. While in custody, the defendant tried to persuade his girlfriend to take responsibility for the weapon seized in this case. She refused, and when questioned by authorities, she told officers of the defendant's request.
13. During the defendant's trial in this case, a witness (Thomas Atkins) testified that at around the time of the instant offense, he accompanied the defendant to Atlanta and obtained 7 kilograms of cocaine. Mr. Atkins admitted being ...