The opinion of the court was delivered by: Chief Judge Curtis L. Collier
David A. Huntley ("Huntley"), has filed a motion for post-conviction relief under 28 U.S.C. § 2255. Huntley contends that his sentences should be vacated, set aside, or corrected because counsel was ineffective in several respects, namely that he failed to request a reduction of sentence, failed to argue application of the safety valve, and failed to ask the government to file a USSG § 5K1.1 motion. Other failures to which Huntley points as illustrations of ineffective assistance was counsel's failure to file a direct appeal, failure to argue disparity of sentences, and failure to argue he should have been prosecuted for possession of methamphetamine rather than for manufacturing it.
Having reviewed the materials thus submitted, together with the complete record of the underlying criminal case, the Court finds they show conclusively defendant is not entitled to relief on the claims asserted. Accordingly, the Court will decide the matter and explain the reasons petitioner's asserted grounds for relief are without merit, without requiring the government to file an answer and without an evidentiary hearing. See United States v. Todaro, 982 F.2d 1025, 1028 (6th Cir.), cert. denied, 508 U.S. 943 (1993) and Rule 4(b) of the Rules Governing Section 2255 Proceedings in the United States District Courts.
I. 28 U.S.C. § 2255 - 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 Rules Governing Section 2255 Proceedings In The United States District Courts, the Court is to consider initially whether the face of the motion itself, together with the annexed exhibits and prior proceedings in the case, reveals 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. 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." Green v. Wingo, 454 F.2d at 53; 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. Reed v. Farley, 512 U.S. 339, 353 (1994); Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (citation omitted) (§ 2254 case); Hill v. United States, 368 U.S. 424, 428 (1962); 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 sub nom. Roy Charles Williams, Sr. v. United States, 439 U.S. 988 (1978). To warrant relief for a non-constitutional error a movant is required to show a fundamental defect in the proceedings 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. at 354; Grant v. United States, 72 F.3d 503, 506 (6th Cir.), cert. denied, 517 U.S. 1200 (1996).
"On collateral review, a trial error is deemed harmless unless it had a 'substantial and injurious effect or influence in determining the jury's verdict.'" Fair v. United States, 157 F.3d 427, 430 (6th Cir. 1998), quoting Brecht v. Abrahamson, 507 U.S. at 637. "It is a 'well-settled principle that to obtain collateral review relief a prisoner must clear a significantly higher hurdle than would exist on direct appeal.'" Fair, 157 F.3d at 430, quoting United States v. Frady, 456 U.S. 152, 166 (1982). A defendant must show a "fundamental defect" in the proceedings which necessarily results in a complete miscarriage of justice or an egregious error which violates due process in order to prevail under 28 U.S.C. § 2255. See Fair, 157 F.3d at 430; Gall v. United States, 21 F.3d 107, 109 (6th Cir. 1994).
On June 29, 2006, Huntley pleaded guilty to one count of conspiracy to manufacture 500 grams or more of methamphetamine in violation of 21 U.S.C. §§ 846 & 841(a)(1) & (b)(1)(A). He was subsequently sentenced to the custody of the United States Bureau of Prisons to be imprisoned for a term of 120 months. Huntley did not pursue a direct appeal.
The following recitation of facts is taken from the factual basis of the government's case: On March 22, 2006, after having received information from others involved in the conspiracy charged in Count One that the defendant had manufactured methamphetamine, DEA TFO Josh Melton went to the defendant's residence in Grundy County, Tennessee. The defendant consented to a search of his residence. Various items associated with the manufacture of methamphetamine were located there. The defendant agreed to speak with Melton after having been advised of this rights under Miranda. He admitted that materials found in the home were in fact used to manufacture methamphetamine. He further stated that he had been manufacturing methamphetamine for the previous 5 years, that he made methamphetamine approximately once every two weeks during that time frame, and that each time the yield of useable methamphetamine was approximately 7 grams. Between January 2, 2002, and March 14, 2006, the defendant conspired with others to manufacture methamphetamine. During that period, the defendant produced or participated in producing with others, including persons also named in the Indictment, over 500 grams of methamphetamine.
Criminal Action No. 4:06-cr-8 (Court File No. 161).
Ineffective Assistance of Counsel Huntley contends he received ineffective assistance of counsel. In his initial § 2255 motion, Huntley identified four instances of alleged ineffective assistance of counsel (Court File No. 392). The Court ordered Huntley to provide factual support for each of the four alleged instances of ineffective assistance of counsel (Court File No. 393). Instead, Huntley filed an amended § 2255 motion wherein he failed to provide any factual support for each of the four alleged instances of ineffective assistance of counsel, omitted two of his original claims,*fn1 and added four more factually unsupported alleged instances of ineffective assistance of counsel (Court File No. 400).
In this § 2255 proceeding, the burden is on Huntley to prove he is entitled to relief. Owen v. United States, 660 F.2d 696, 702 (6th Cir. 1981). A motion under § 2255 must consist of something more than legal conclusions unsupported by factual allegations. Short v. United States, 504 F.2d 63 (6th Cir. 1974). Huntley has failed to provide any factual support for any of his claims in violation of Rule 2(b) of the Rules Governing Section 2255 Proceedings for the United States District Court. Therefore, the Court concludes that, devoid of any factual support, Petitioner's allegations are insufficient to support a request for relief under § 2255. See Oliver v. United States, 961 F.2d 1339, 1343 n. 5 (7th Cir. 1992) ("No hearing is required in a section 2255 proceeding if the motion raises no cognizable claim, if the allegations in the motion are unreasonably vague, conclusory, or incredible, ...").
Nevertheless, although neither Huntley's original nor amended § 2255 motion comports with Rule 2 of the Rules Governing Section 2255 Proceedings for the United States District Courts in that he has failed to state the facts supporting each ground, liberally construing this pro se motion, the Court will address each ...