The opinion of the court was delivered by: Leon Jordan 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 Ishon D. Hardin ("Hardin"). For the following reasons, the § 2255 motion will be DENIED and this action will be DISMISSED.
This court must vacate and set aside Hardin's 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, Hardin "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 Hardin 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).
Hardin was convicted by a jury of conspiracy to distribute five kilograms or more of cocaine hydrochloride and cocaine base, in violation of 21 U.S.C. 846, and possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1). He was sentenced to concurrent terms of imprisonment of 292 months on each conviction. Hardin's sentence was affirmed on direct appeal. United States v. Hardin, 75 Fed.Appx. 371 (6th Cir.), cert. denied, 540 U.S. 1167 (2003). In support of his § 2255 motion, Hardin alleges prosecutorial misconduct and ineffective assistance of counsel. In a supplemental pleading, Hardin also alleges that he is entitled to relief in light of the decision of the United States Supreme Court in Blakely v. Washington, 542 U.S. 296 (2004).
A. Prosecutorial Misconduct
Hardin alleges that the government knowingly used perjured and biased testimony from Hardin's coconspirators, specifically Jay Allen Bates, Kenya Shell, Malik Yelder, Dewey Anderson, Terry Griffin, and Jack Chesney. According to Hardin, these witnesses falsely testified against him in order to secure sentence reductions for themselves, and that the prosecutor encouraged the false testimony. In support of this claim, Hardin refers to the following comment by the district judge at the sentencing hearing, with respect to the testimony of Jay Allen Bates as to the amount of drugs involved: "I find it difficult to give full faith and credit to Mr. Bates' testimony." [Criminal Action No. 3:01-cr-23, Court File No. 70, Transcript of Proceedings, p. 27].
The law is well-settled that to vacate a sentence on the grounds of perjured testimony, the petitioner must prove not only that he was convicted by perjured testimony but also that the false statements were material and that the prosecuting officials at the time the testimony was used knew that it was perjured. See, e.g., United States v. Bagley, 473 U.S. 667, 679-80 (1985); United States v. Farley, 2 F.3d 645, 655 (6th Cir. 1993).
[I]t is the knowing use by the Government of false evidence that constitutes the denial of due process. An allegation of perjury, apart from an allegation of knowing use by the Government of that perjury, constitutes no basis for habeas corpus or coram nobis relief as it alleges no error of constitutional dimensions. The credibility of witnesses is ordinarily for trial by the jury in the criminal trial. False evidence and perjury are matters that may be raised on the trial and on motions for a new trial, but not in habeas corpus, Section 2255, or other post-conviction petitions.
Hoffa v. United States, 339 F. Supp. 388, 392 (E.D. Tenn. 1972), aff'd, 471 F.2d 391 (6th Cir. 1973).
As is so often the case in a drug prosecution, the witnesses against Hardin were themselves involved in the drug trade. Each witness admitted his desire to secure a sentence reduction in return for his cooperation with the government, including his testimony against Hardin. As such, the witnesses were subjected to intense cross-examination as to their bias. The witnesses' credibility was a matter for the jury to consider. See United States v. Henley, 360 F.3d 509, 514 (6th Cir. 2004) (noting that while the defendant challenged the credibility of the coconspirators, who had received lesser sentences in exchange for their testimony, the credibility of the coconspirators' testimony was "for the jury to decide" and it was not up to the court to ...