The opinion of the court was delivered by: Curtis L. Collier Chief United States District Judge
Chief Judge Curtis L. Collier
Richard C. Nelson ("Nelson") has filed a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. Nelson contends he received ineffective assistance of counsel (Court File No. 1). For the reasons which follow, Nelson's § 2255 motion is without merit and will be DENIED.
Having reviewed the materials thus submitted, together with the complete record of the underlying criminal case, the Court finds they show conclusively Nelson is not entitled to relief on the claims asserted. Accordingly, the Court will decide the matter and explain the reasons Nelson's asserted grounds for relief are without merit, without an evidentiary hearing. Rule 8(a) 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 8(a) of the Rules Governing Section 2255 Proceedings In The United States District Courts, the Court is to review the answer, any transcripts, and records of prior proceedings and any materials submitted under Rule 7 to determine whether an evidentiary hearing is warranted.
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). Nelson has failed to present any facts which establish that his sentence is subject to collateral attack under § 2255.
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 requires a showing of 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. 339, 354 (1994); Grant v. United States, 72 F.3d 503, 506 (6th Cir.), cert. denied, 517 U.S. 1200 (1996).
Nelson pleaded guilty on December 4, 2003, to Count One of a twenty-two-count indictment, charging him with conspiring to distribute five (5) kilograms or more of a mixture and substance containing cocaine hydrochloride and fifty (50) grams or more of a mixture and substance containing cocaine base, in violation of Title 21, United States Code, Sections 846 and 841(a)(1) and (b)(1)(A).
Nelson's sentencing guidelines offense level was determined to be 35; his criminal history category was III; and his guideline range was calculated as 210 to 262 months imprisonment but with the statutory mandatory minimum of 20 years, the effective guideline range was 240-262. On April 23, 2004, this Court sentenced Nelson to 168 months imprisonment, eight years supervised release, and $100.00 special assessment.
Judgment was entered on April 30, 2004, and, therefore, was considered final on May 14, 2004. See Sanchez-Castellano v. United States, 358 F.3d 424, 428 (6th Cir. 2004) ("an unappealed federal criminal judgment becomes final ten days after it is entered"). Nelson did not pursue an ...