The opinion of the court was delivered by: Judge Greer
Angela Bryant ("petitioner or Bryant"), a federal prisoner, has filed this "Motion to Vacate, Set Aside or Correct Sentence Pursuant to 28 U.S.C. § 2255." [Doc. 93]. The United States has responded in opposition [Doc. 106] and Bryant has filed a reply [Doc. 107]. The matter is now ripe for disposition. The Court has determined that the files and records in the case conclusively establish that the petitioner is not entitled to relief under § 2255 and, therefore, no evidentiary hearing is necessary. For the reasons which follow, the petitioner's § 2255 motion lacks merit, and the motion will be denied.
Bryant was indicted by the federal grand jury on March 8, 2005, on a charge of conspiracy to distribute and possess with the intent to distribute 50 grams or more of pure methamphetamine. Pursuant to a negotiated plea agreement, she pled guilty to the indictment on June 27, 2005. A presentence report ("PSR") was ordered. Based on a total offense level of 31 and a criminal history category of I, petitioner's advisory guidelines range was determined to be 100 to 135 months. Because Bryant faced a mandatory minimum term of imprisonment of ten years, her restricted guidelines range was 120 to 135 months.
Bryant objected to a two level increase in offense level because of a firearm found in her bedroom and to the failure of the probation officer to apply the "safety valve" to her case, thus allowing her to avoid the mandatory minimum sentence.*fn1 She also objected to the quantity of methamphetamine used to calculate the advisory guidelines range and asserted entitlement to an adjustment based on her minor role in the offense. After a lengthy hearing on the objections, Bryant's objections were overruled. The government moved for a downward departure based on Bryant's cooperation in the investigation of the case and her testimony at trial against her co-defendant and recommended that Bryant be sentenced to 84 months of imprisonment.
Bryant was sentenced on January 30, 2006, to a term of imprisonment of 68 months. Judgment was entered on February 7, 2006. Bryant did not file a direct appeal and timely filed the instant motion on September 7, 2006.
On February 1, 2005, Carl Marco ("Marco") was arrested by Washington County Sheriff's Department deputies after a high speed chase. While being held at the Washington County Detention Center, Marco made repeated calls to Bryant. Marco's calls from the Washington County Detention Center were recorded. The recordings were reviewed by a sheriff's department investigator who learned that Marco had instructed Bryant to retrieve a package for him at a location near where his car had been stopped by police. Further review of the in-car video of the police chase of Marco revealed that a package had been thrown from the window of Marco's car during the chase. When referring to the package during the recorded calls, Marco was believed to be using coded language for methamphetamine. Through subsequently monitored calls from Marco to Bryant, it was learned that Bryant had retrieved the package and had taken it to her house.
A search warrant was executed at the house of Bryant on February 9, 2005, at approximately 1:30 a.m. Petitioner was present with her two small children. Officers found digital scales, manual scales, baggies, drug notes, marijuana and $240.00 in cash. A loaded .45 caliber semi-automatic pistol was found in a chest of drawers near the bed in petitioner's bedroom and 1.5 ounces of methamphetamine was found under the bed in a Crown Royal bag. Bryant testified that after retrieving the methamphetamine from the roadside as instructed by Marco she returned with it to her residence and put it in the Crown Royal bag because it was wet. Also at Marco's direction, she divided the 6 ounces of methamphetamine found beside the road into approximately 120 smaller multi-gram quantities, using a set of digital scales that were in the bag with the methamphetamine. The next morning, Bryant had a friend remove the small quantities of methamphetamine from her home concealed in a hair dryer, except for the 1.5 ounces found under her bed, which she also thought had been removed. Marco instructed her to sell the meth, which she thought was worth about $17,000.00.
Prior to the execution of the search warrant, Bryant had been told by Marco that there was a firearm located in the back of a 4-wheeler on a pick-up truck she had moved to her residence at Marco's direction. She testified she found the gun in the 4-wheeler and took it into her residence, where she placed it in the drawer next to her bed, fearing her children might find the weapon. She testified she did not own the firearm, did not know how to use the firearm and did not possess the firearm in connection with the methamphetamine, which she believed had all been removed from her house. After her arrest, Bryant also directed the officers to the methamphetamine which had been removed from her residence.
This Court must vacate and set aside petitioner's 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, she must set forth facts which entitle her to relief. Green 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 that 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); Clemmons 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, petitioner must show 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 § 2255, a petitioner must clear a significantly higher hurdle than would exist on direct appeal. United States v. Frady, 456 U.S. 152 (1982).
The Sixth Amendment provides, in pertinent part, "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense." U.S. Const. amend. VI. A defendant has a Sixth Amendment right not just to counsel, but to "reasonably effective assistance" of counsel. Strickland v. Washington, 466 U.S. 668, 687 (1984). In Strickland, the Supreme Court set forth a two-pronged test 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. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable. Strickland 466 U.S. at 687. As with any other claim under § 2255, the burden of proving ineffective assistance of counsel is on the petitioner. Virgin Islands v. Nicholas, 759 F. 2d 1073, 1081 (3rd Cir. 1985).
In considering the first prong of the test set forth in Strickland, the appropriate measure of attorney performance is "reasonableness under prevailing professional norms." Strickland, 466 U.S. at 688. A defendant asserting a claim of ineffective assistance of counsel must "identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment." Id. at 690. The evaluation of the objective reasonableness of counsel's performance must be made "from counsel's perspective at the time of the alleged error and in light of all the circumstances, and the standard of review is highly deferential." Kimmelman v. Morrison, 477 U.S. 365, 381 (1986).
The second prong of the Strickland test requires the petitioner show counsel's deficient performance prejudiced the defense. Thus, "[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Strickland, 466 U.S. at 691. The petitioner must show "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. The Strickland Court emphasized both prongs must be established in order to meet the claimant's burden, and if either prong is not satisfied the claim must be rejected, stating:
Although we have discussed the performance component of an ineffectiveness claim prior to the prejudice component, there is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one . . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed. Courts should strive to ensure that ineffectiveness claims not become so burdensome to defense counsel that the entire criminal justice system suffers as a result.
IV. Analysis and Discussion
In her § 2255 motion, Bryant raises numerous claims, including claims of ineffective assistance of counsel. She argues that: (1) her attorney "made no arguments or called any witnesses in Defendant's sentencing hearing which could help [the Court] understand Defendant's position"; (2) her attorney failed to make arguments on Bryant's behalf that the two level enhancement for the possession of a firearm in connection with the drug trafficking offense was improper; (3) she erroneously failed to receive a reduction in offense level for a mitigating role in the offense; (4) she was erroneously held accountable for the purity of the methamphetamine; (5) the defendant signed a plea agreement at the urging of her attorney "with the assurance from the attorney she would not get any more than two years"; (6) improper investigative techniques and promises of leniency by law enforcement officers; and (7) she should have received a greater downward departure. In her reply to the government's response, Bryant raises additional claims: (1) counsel was "ineffective for waiving Bryant's rights to challenge [appeal] any sentence imposed . . ."; (2) the Court sentenced Bryant "based on responsibility for 170.1 grams" of methamphetamine rather than the 50 "or more" stipulated to in the plea agreement, (3) the government breached the plea agreement "in supporting any enhancement not agreed to in the parameters of the plea agreement signed by Bryant"; and (4) her Sixth Amendment rights were violated because the Court considered the guidelines to be mandatory, citing United States v. Booker, 543 U.S. 220 (2005). A. Procedural Default As an initial matter, petitioner appears to have procedurally defaulted several of her claims. A petitioner is procedurally barred from raising claims in a § 2255 motion, even those of constitutional magnitude, to which no contemporaneous objection was made or which were not presented on direct appeal. U.S. v. Frady, 456 U.S. at 167-68; Nagiv v. United States, 90 F.3d 130, 134 (6th Cir. 1996). Where a petitioner has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in a motion under § 2255 only if the defendant first demonstrates either cause for the default and actual prejudice or that she is actually innocent. Bousley v. United States, 523 U.S. 614, 622 (1998). The petitioner here makes no claim of actual innocence.
A claim of ineffective assistance of counsel may serve as cause excusing a procedural default. See Elzy v. United States, 205 F.3d 882, 884 (6th Cir. 2000). The procedural default rule does not apply to claims of ineffective assistance of counsel because such claims generally are not reviewable on direct appeal, as the record may be inadequate to review. United States v. Kincaide, 145 F.3d 771, 785 (6th Cir. 1998). "Section 2255 is not a substitute for a direct appeal, and thus a defendant cannot use it to circumvent the direct appeal process." Regalado v. United States, 334 F.3d 520, 527- 28 (6th Cir. 2003), citing United States v. Frady at 167-68. Furthermore, "the Frady cause and prejudice standard applies to a defendant who pleads guilty and first asserts a claim for relief in a collateral proceeding." Ratliff v. United States, 999 F.2d 1023, 1025 (6th Cir. 1993).
Bryant has procedurally defaulted her claims regarding the firearms enhancement, safety valve, the mitigating role reduction, the purity and quantity of the drugs used to calculate her advisory guidelines sentencing range, her claim for a greater downward departure, her claim that the government breached the plea agreement, her claim of improper investigative techniques, and her Sixth Amendment claim under Booker. Bryant does not address cause for her failure to pursue a direct appeal. Presumably, however, it was because of her waiver of her right to file a direct appeal in the plea agreement. Apparently realizing her procedural default, Bryant suggests that her trial attorney was "ineffective for waiving Bryant's rights to challenge any sentence imposed" and argues that the plea agreement was a "one-sided contract of adhesion" and that her right to appeal her sentence could not have been knowingly and voluntarily waived because she did not yet know what her sentence was going to be.
Waivers of rights to appeal are not unenforceable as contracts of adhesion but rather such waivers are routinely enforced by the circuit courts of appeals, including the Sixth Circuit. See United States v. Yoon, 398 F.3d 802, 808 (6th Cir. 2005) , cert. denied, 126 S.Ct. 548 (2005). Furthermore, Bryant's attorney could not and did not waive Bryant's right to appeal; it was Bryant herself who did so. She signed a plea agreement which clearly set out the waivers of her rights to appeal, acknowledged under oath that she had read the plea agreement, that her attorney had explained the terms of the plea agreement to her and that she fully understood the terms and conditions of her plea agreement. More specifically, she unequivocally acknowledged her understanding that she had expressly waived the right to appeal or collaterally attack her plea or sentence and had discussed the waiver with her attorney. Bryant has offered no facts which would establish that she did not knowingly and willingly enter into her plea ...