The opinion of the court was delivered by: Jordan
This is a motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 filed by petitioner Nathaniel S. Robinson ("Robinson"). For the following reasons, the § 2255 motion will be DENIED and this action will be DISMISSED.
This court must vacate and set aside Robinson'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, Robinson "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 Robinson 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).
Robinson pleaded guilty to distribution of five grams or more of cocaine base ("crack"), in violation of 21 U.S.C. §§ (a)(1) and (b)(1)(B)(iii). There was no plea agreement. The probation officer summarized the offense conduct as follows:
A Confidential Source (CS) was aware that the defendant was capable of supplying ounce quantities of crack cocaine and he spoke with defendant Robinson the week of April 15, 2002. The CS provided the defendant's contact number to investigating agents. On April 22, 2002, the CS was debriefed by investigating agents who were told that the defendant met with the CS on April 20, 2002, and obtained a new contact phone number from the defendant. The defendant again reiterated to the CS that he was willing to sell the CS an ounce of crack cocaine.
On April 24, 2002, the defendant went to the CS's residence and told the CS that he would deliver an ounce of crack cocaine to the CS at the CS's residence. On April 25, 2002, the CS made a consensually recorded telephone conversation with defendant Robinson who asked the CS if he was ready for some "work." The CS told defendant Robinson that he/she was traveling from Gatlinburg, Tennessee, after gathering money and he/she would call defendant Robinson when he/she arrived home.
On April 25, 2002, the CS again made another consensually recorded telephone call to defendant Robinson informing him that the CS was at home. A few minutes later, the defendant was observed by investigating agents arriving at the CS's residence. The defendant met with the CS in the defendant's vehicle. The CS was equipped with a transmitting device which allowed the investigating agents to hear the conversation. During the conversation, the defendant wanted the CS to "front" the money to him so that he could go and buy the crack cocaine. The CS refused this request and the defendant agreed to get the crack cocaine without any money. The CS was observed exiting defendant Robinson's vehicle and the defendant departed the area. Approximately thirty minutes later, the defendant was observed, by investigating agents, arriving at the CS's residence again. The defendant exited the vehicle and walked into the entryway of the apartment complex. The defendant and the CS met and defendant Robinson sold the CS approximately 24 grams of crack cocaine for $900. The CS gave defendant Robinson money provided by the Drug Enforcement Administration (DEA) in which the serial numbers were recorded.
After the transaction, the defendant was observed exiting the entryway and return [sic] to his vehicle and depart [sic] the area. Approximately two minutes later, a marked Knoxville Police Department patrol unit affected a traffic stop on defendant Robinson. Pursuant to a search incident to arrest, Knoxville Police Department investigator Todd Gilreath found the $900, in the defendant's right front pocket, that the CS gave to the defendant for payment of the crack cocaine.
Laboratory tests revealed the cocaine base had a weight of 22.6 grams. [Criminal Action No. 3:02-cr-49, Presentence Investigation Report, pp. 3-4, ¶¶ 7-11].
Robinson was sentenced to a term of imprisonment of 193 months. That included a downward departure of approximately 100 months based upon the government's motion for a ...