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 Jeffrey B. Hopper ("Hopper"). For the following reasons, the § 2255 motion will be DENIED and this action will be DISMISSED.
This court must vacate and set aside Hopper'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, Hopper "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 Hopper 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).
Pursuant to a conditional plea agreement, Hopper pleaded guilty to count one of a superseding indictment, which charged him with manufacturing more than 100 marijuana plants, in violation of 21 U.S.C. §§ (a)(1) and (b)(1)(B)(vii); counts two and three of the superseding indictment were dismissed. He was sentenced to the minimum mandatory term of imprisonment of 60 months. On direct appeal, Hopper challenged the district court's denial of his four motions to suppress the evidence. The judgment of conviction was affirmed. United States v. Hopper, 58 Fed.Appx. 619 (6th Cir.), cert. denied, 540 U.S. 928 (2003). In support of his § 2255 motion to vacate sentence, Hopper alleges ineffective assistance of counsel. He also seeks to expunge the counts of the indictment that were dismissed.
A. Ineffective Assistance of Counsel
In Strickland v. Washington, 466 U.S. 668 (1984), the United States Supreme Court established a two-part standard for evaluating claims of ineffective assistance of counsel:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Id. at 687.
To establish that his attorney was not performing "within the range of competence demanded of attorneys in criminal cases," McMann v. Richardson, 397 U.S. 759, 771 (1970), Hopper must demonstrate that the attorney's representation "fell below an objective standard of reasonableness." Strickland v. Washington, 466 U.S. at 687-88. In judging an attorney's conduct, a court should consider all the circumstances and facts of the particular case. Id. at 690. Additionally, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).
The issue is whether counsel's performance "was so manifestly ineffective that defeat was snatched from the hands of probable victory." United States v. Morrow, 977 F.2d 222, 229 (6th Cir. 1992) (en banc). Because he is seeking relief under § 2255, Hopper bears the burden of proving by a preponderance of the evidence that his ...