The opinion of the court was delivered by: Chief Judge Curtis L. Collier
Robert Allen Tribble ("Tribble") has filed a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. Tribble contends the judge who accepted his guilty plea had a conflict of interest, defense counsel who immediately withdrew after he entered his guilty plea had a conflict of interest, his guilty pleas in these cases were coerced by counsel and the prosecutor, and his sentencing guidelines were miscalculated and in violation of United States v. Booker, 543 U.S. 220 (2005). For the reasons which follow, Tribble'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 defendant is not entitled to relief on the claims asserted. Accordingly, the Court will decide the matter and explain the reasons Tribble'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. NONDISPOSITIVE MOTIONS
After the government filed its response, Tribble filed two motions requesting judgment by default (Court File Nos. 8 & 10). Accordingly, these motions will be DENIED as MOOT (Court File Nos. 8 & 10).
II. 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). Tribble 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).
Tribble pleaded guilty on January 23, 2002, in criminal case number 1:01-cr-68 to Count One of a two-count superseding indictment, charging him with knowingly executing and attempting to execute a scheme and artifice to defraud a financial institution and obtain moneys, funds, and credits under the custody and control of a financial institution, by means of false and fraudulent pretenses, representations, and promises in violation of Title 18, United States Code, Section 1344.
On May 24, 2002, Judge Edgar sua sponte recused himself and the case was reassigned to the undersigned. On June 28, 2002, Tribble's court-appointed attorney (Ms. Rita LaLumia) moved to withdraw on grounds of a conflict of interest and the motion was granted (Court File Nos. 49, 51). Attorney Lex Coleman was appointed to represent Tribble (Court File No. 51).
On November 7, 2002, Criminal Case Number 1:02-cr-188 was transferred to this district from the District of South Carolina. Tribble entered guilty pleas to Counts Two through Six of a Six-Count Superseding Indictment returned in the District of South Carolina and transferred to this Court. Count Two and Three of the Six-Count Indictment charged him with transfer of false identification in violation of 18 U.S.C. §§ 1028(a)(2) and (c)(3)(B); Court Four, charged him with possession of a document making implement in violation of 18 U.S.C. § 1028(a)(5) & (c)(1); and Count Five and Six charged him with making a false statement in application of a passport in violation of 18 U.S.C. § 1542. Tribble was subsequently sentenced in both cases on February 21, 2003.*fn1
Tribble's sentencing guidelines offense level was determined to be 13; his criminal history category was IV; and his guideline range was calculated as 24-30 months imprisonment. On February 21, 2003, this Court sentenced Tribble to concurrent 30 month imprisonment sentences on each of the six counts to which he pleaded guilty, five years supervised release, $13,500.00 restitution, $600.00 special assessment, and a fine of $20,000.00.
Tribble appealed the amount of restitution and fine imposed by the district court. The district court's decision was affirmed on August 6, 2004, by the Sixth Circuit Court of Appeals. See United States v. Tribble, No. 03-5467(6th Cir. 2004) (Criminal Case Number 1:01-cr-68, Court File No. 109). Tribble filed the instant § 2255 motion on January 18, 2005.*fn2
In the underlying offense conduct in connection with the bank fraud offense in this district Tribble agreed to the following facts:
Mr. Tribble devised a scheme to defraud in which he would purchase cashier's checks in nominal amounts such as $5.00 and then counterfeit a check. He would then use the counterfeit check to purchase property from individuals. In the instant case, the property he is charged with purchasing includes a 1990 Coachman motor home for $15,000.00, a car trailer for $1,500.00, and a diamond ring for $4,000.00. Each of these was purchased with a counterfeited cashier's check from the SunTrust Bank, a federally insured financial institution. The Coachman motor home was purchased in Cleveland, Tennessee, and recovered in Augusta, Georgia.
This scheme was executed on or about August 25, 1999, when the defendant purchase[d] a $5.00 cashier's check for $10.00 from the SunTrust Bank, Chattanooga, Tennessee, the deposit of which were insured by the Federal Deposit Insurance Corporation. (Crim. Case No. 1:01-cr-68, Plea Agreement, Court File No. 43).
The factual basis supporting Tribble's plea of guilty to Counts 2-6 of the Superseding Indictment returned in the District of South Carolina is detailed in five pages of facts which explains the scheme to create and distribute fraudulent identification documents (Crim. Case No. 1:01-cr-68, Court File No. 53). Accordingly, only a brief synopsis of the facts (taken from the Presentence Investigation Report) is necessary at this point. Tribble, who identified himself as the attorney for two individuals, assisted them in handling much of the application for passports and also provided the passport inspector with Georgia birth certificates, that were later determined to be counterfeit. In addition, the social ...