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Shipley v. United States

November 6, 2007

FARREL A. SHIPLEY
v.
UNITED STATES OF AMERICA



The opinion of the court was delivered by: J. Ronnie Greer United States District Judge

Judge Greer

MEMORANDUM OPINION

This matter is before the Court on the pro se "Writ of Habeas Corpus" filed by Farrel A. Shipley (hereinafter "Shipley" or "petitioner"), a federal prisoner, to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. [Doc. 42]. The Court has reviewed the petitioner's motion and has determined that it plainly appears from the motion and the record of prior proceedings that the moving party is not entitled to relief and the Court will, therefore, dismiss the motion. See Rule 4(b), Rules Governing § 2255 Proceedings for the United States District Courts.

I. Procedural Background

The petitioner was arrested on October 5, 2004, and charged with the assault of a resident at the James H. Quillen Veterans Affairs Medical Center at Mountain Home, Tennessee. He was subsequently indicted by the federal grand jury in an eight count indictment returned on October 19, 2004. The indictment charged Shipley with destruction and damage of property of the Veterans Administration (Count 1), various counts of entry of a habitation at the Veterans Affairs Medical Center with intent to commit a theft (Counts 2, 3, 5, 6, 7 and 8), and assault of a resident at the Veterans Affairs Medical Center, resulting in serious bodily injury (Count 4). Pursuant to a negotiated plea agreement, Shipley pleaded guilty to Count 4 of the indictment on May 2, 2005, and was sentenced on August 1, 2005, to a term of imprisonment of 57 months. Judgment was entered on August 5, 2005, and notice of direct appeal was filed on August 18, 2005. The United States Court of Appeals for the Sixth Circuit affirmed the District Court's judgment by order entered on December 8, 2006. Shipley timely filed his pro se motion pursuant to 28 U.S.C. § 2255 on November 29, 2007.

II. Facts

The uncontroverted facts in this case are set forth in a "Stipulation Of Factual Basis For Plea Agreement" filed by the parties at the time of Shipley's guilty plea as follows:

The defendant, FARREL A. SHIPLEY, and his counsel, Tim S. Moore, submit the following under Rule 11(b)(3), Federal Rules of Criminal Procedure, only as a factual basis to support his guilty plea to the information in this case, charging him with a violation of 18 U.S.C. §§ 113(a)(6), 7 and 1365, assault resulting in serious bodily injury. It does not represent all of the facts nor the defendant's complete knowledge in this case.

On or about October 5, 2004, within Building 160, the domiciliary of the James H. Quillen Veteran's Affairs Medical Center at Mountain Home in the Eastern District of Tennessee, FARREL A. SHIPLEY entered several habitation areas, or rooms assigned to patients. SHIPLEY was not a resident of the domiciliary building and entered these rooms without the permission or knowledge of the assigned domiciliary residents. At approximately 3:55 a.m. SHIPLEY entered Room 416, where Hollis Cardwell, the assigned resident, was sleeping. Cardwell awoke and confronted SHIPLEY about his unauthorized entry into his room, and SHIPLEY left the room. Cardwell followed SHIPLEY in an effort to detain him until authorities arrived. SHIPLEY struck Cardwell in the face with a heavy plastic mug, with such force that the handle of the mug broke off. Cardwell, a patient at the facility receiving treatment for multiple diagnoses of cancer, suffered a broken nose and extreme physical pain as a result of SHIPLEY striking him with the mug. SHIPLEY later admitted that he struck Cardwell after Cardwell accused him of entering his room to steal his personal property, and left him bleeding on the floor while SHIPLEY calmly walked downstairs to get a cup of coffee.

III. Nature of Petitioner's Claims

Shipley has filed a 12- page handwritten motion raising numerous issues, some of which are of a type properly raised pursuant to a § 2255 motion and others of which are in the nature of requests that this Court modify the previously imposed sentence based on circumstances which have arisen since the entry of the judgment in this case. In summary, Shipley alleges that his sentence was imposed in violation of his Sixth Amendment rights pursuant to Blakely v.Washington and United States v. Booker, asks the Court to grant him a "downward departure" for medical reasons, generally alleges that the Court did not properly consider the 18 U.S.C. § 3553(a) factors in imposing sentence and that the Court erred in denying him a reduction in offense level for acceptance of responsibility, argues that the District Court erred in enhancing his offense level pursuant to USSG § 2(a)2.2B2 for the use of a dangerous weapon, seeks a reduction in his sentence because of "extenuting [sic] circumstances," i.e., family circumstances and medical condition, and alleges ineffective assistance of counsel on the part of his trial counsel because trial counsel "did not challenge" statements made to the probation officer by the petitioner which resulted in the Court's ruling that Shipley was not entitled to acceptance of responsibility and a lack of explanation to Shipley by his trial attorney concerning the issue related to acceptance of responsibility. Each of these issues will be discussed in turn below.

IV. 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 ยง 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 ...


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