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Carver v. United States

July 25, 2007

DONALD M. CARVER
v.
UNITED STATES OF AMERICA



The opinion of the court was delivered by: Judge Greer

MEMORANDUM OPINION

This matter is before the Court on the pro se motion of Donald M. Carver (hereinafter "Carver" or "petitioner"), a federal prisoner, to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. [Doc.2]. The United States has responded in opposition to the motion. [Doc. 6]. The matter is now ripe for disposition. The Court has determined that the files and records of the case conclusively establish that the petitioner is not entitled to relief under § 2255 and that, therefore, no evidentiary hearing is necessary. For the reasons which follow, the petitioner's motion pursuant to § 2255 lacks merit and will be DENIED.

I. Procedural Background

On May 10, 2005, the federal grand jury returned a two count indictment against Carver. On September 19, 2005, the defendant entered a plea of guilty to count one of the indictment which charged him with possession of a firearm and ammunition by a convicted felon. Pursuant to a negotiated plea agreement entered into pursuant to Fed. R. Crim. P. 11(c)(1)(C), defendant was sentenced on December 5, 2005, to a 70 month term of imprisonment and count two of the indictment, charging Carver with possession of cocaine, was dismissed. This Court ordered the 70 month sentence to be served concurrently with a previously imposed state sentence. Judgment was entered on December 15, 2005, and no direct appeal was taken by Carver. Petitioner timely filed the instant § 2255 motion on July 31, 2006.

II. Facts

The uncontroverted facts in this case are set forth in an agreed factual basis filed by the parties at the time of Carver's guilty plea and in the presentence report as follows:

On October 29, 2004, at approximately 9:32 p.m., defendant Carver was in possession of a .32 caliber Colt semi-automatic pistol. The firearm was determined to be manufactured outside the State of Tennessee and therefore affected interstate commerce.

Carver was convicted on 11/15/68 in the U.S. District Court for the Eastern District of Tennessee in case No. 7031 for violations of 26 U.S.C. §§ 5180(a) and 5681(c) (bootlegging); on 01/09/74, he was convicted in U.S. District Court, ETDN case No. 18173 for violations of 18 U.S.C. § 472 (possessing, uttering, publishing counterfeit notes); he was convicted on 01/12/04 in Cocke County Criminal Court case number 7873 for sell [sic] and delivery of in excess of one-half gram of cocaine; and he was convicted on 01/12/04 in Cocke County for possession with intent to sell and deliver cocaine in case number 7885 and marijuana trafficking felonies.

According to the Newport, Tennessee Police Department arrest report, on October 29, 2004, officers responded to a call concerning a red Jeep, operated by the defendant, that was following a green Mustang, attempting to move the vehicle off the roadway. As the officer approached the defendant's vehicle, he began revving the engine. The officer noticed the defendant had a strong odor of alcohol about his person, while requesting his drivers license. Defendant Carver advised he did not have a drivers license. A search of defendant Carver revealed a Marlboro cigarette pack containing cocaine in his right front pant pocket. In the defendant's vehicle, a loaded .32 caliber Colt pistol was found in the glove box.

III. Standard of Review

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, reveal 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. Greene 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 which 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); Clemins 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). In order to obtain collateral relief under ยง 2255, a petitioner must ...


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