The opinion of the court was delivered by: R. Allan Edgar United States District Judge
Proceeding pro se, Darrin T. Webb ("Webb"), has filed a motion for post-conviction relief under 28 U.S.C. § 2255, attacking his 2005 conviction in Criminal Case Number 1:04-cr-188 for Aiding and Abetting Extortion in violation of 18 U.S.C. §§ 1951 and 2, and his resulting 48-month sentence.*fn1 (Court File # 258). Relying on United States v. Brock et. al, 501 F.3d 762 (2007), a decision by the Court of Appeals for the Sixth Circuit which reversed the Hobbs Act convictions of his two co-defendants, Webb first contends that his actions, like those of his codefedants, did not constitute a Hobbs Act violation and that he, therefore, is actually innocent.*fn2 Webb's second claim, a companion to the prior claim, is that his trial counsel gave him ineffective assistance by failing to argue that his client's actions did not violate the Hobbs Act.
The government concedes that Webb's Hobbs Act conviction and sentence should be vacated and that he should be resentenced. The government contends that dismissing the Hobbs Act conviction renders moot the ineffective assistance of counsel claim, but that it opposes that claim if it does not become moot.
After reviewing the parties' filings, the relevant law, and the record, the Court concludes the motion will be GRANTED IN PART AND DENIED IN PART. The judgment of conviction entered against Webb on October 5, 2005, will be AMENDED and CORRECTED to the following limited extent. The Hobbs Act conviction and sentence in criminal case number 1:04-cr-188 will be VACATED and the Clerk will be ORDERED to reimburse Webb the full amount of the special assessment which he has paid.*fn3 Webb's sentence will be corrected and recalculated to exclude that portion of the sentence based on Court Two i.e., the Hobbs Act conviction.
I. 28 U.S.C. § 2255 - Standard of Review
A federal prisoner may file a motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence upon the ground that the sentence was imposed in violation of the United States Constitution. To obtain relief under § 2255 , the movant bears the burden of establishing an error of constitutional magnitude which had a substantial and injurious effect or influence on the criminal proceedings. Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993); Griffin v. United States, 330 F.3d 733, 736 (6th Cir.2003); Watson v. United States, 165 F.3d 486, 488 (6th Cir.1999). "To prevail under 28 U.S.C. § 2255, a defendant must show a fundamental defect in the proceedings which necessarily results in a complete miscarriage of justice or an egregious error violative of due process." Gall v. United States, 21 F.3d 107, 109 (6th Cir.1994) (internal quotation omitted).
II. Procedural Background
On February 9, 2005, a superseding indictment was filed in criminal case number 1:04-cr-188 adding Webb as a defendant (The original indictment did not name Webb as a defendant; it only named Gary Michael Brock and his brother, Jerry Giles Brock). A second superseding indictment was filed the next month, charging that in September of 2003, Webb affected interstate commerce by extortion, as defined in 18 U.S.C. § 1951(b)(2), by paying a bribe to a Deputy Clerk of the General Sessions Court of Hamilton County, Tennessee in violation of 18 U.S.C. §§ 1951 and 2.
A federal jury convicted Webb of illegally distributing information relating to a destructive device in criminal case number 1:04-cr-186, and he later pleaded guilty to violating the Hobbs Act in criminal case number 1:04-cr-188. The Court heard extensive testimony about Webb's additional criminal activity, and determined that a sentence within the advisory guidelines range of 27-33 months was insufficient to deter criminal conduct. The Court imposed a 48-month sentence on each conviction to run concurrently, and two concurrent three-year terms of supervised release.
Webb filed a direct appeal claiming the Court improperly disqualified his original attorney from representing him, and that the Court improperly sentenced him. The Court of Appeals for the Sixth Circuit, finding no error, affirmed Webb's conviction and sentence on September 6, 2007. United States v. Brock et. al., 501 F.3d 762 (6th Cir. 2007). Webb filed this instant § 2255 motion on October 16, 2007. Because Webb is only challenging his Hobbs Act conviction, the Court's discussion will be limited to that conviction, to the extent possible.
The pertinent facts are taken from the Presentence Investigation Report ("PSI"). Webb's co-defendant, Mike Brock, directed him to Scott Simcox, who was employed as a clerk with the Hamilton County Sessions Court Clerk's Office, as a person who could take care of some traffic citations. Webb paid Simcox $1,000.00 on September 6, 2003, in exchange for Simcox deleting, from the ...