The opinion of the court was delivered by: Jordan
This is a motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 filed by petitioner James H. Murphy ("Murphy"). The government has filed its response to the § 2255 motion, to which Murphy has also filed his reply. For the following reasons, the § 2255 motion will be DENIED and this action will be DISMISSED.
This court must vacate and set aside Murphy's conviction upon a finding 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. To prevail under § 2255, Murphy "must show a 'fundamental defect which inherently results in a complete miscarriage of justice,' or, an error so egregious that it amounts to a violation of due process." United States v. Ferguson, 918 F.2d 627, 630 (6th Cir. 1990) (quoting Hill v. United States, 368 U.S. 424, 428 (1968)).
Under Rule 8 of the Rules Governing Section 2255 Proceedings In The United States District Courts, the court is to determine after a review of the answer and the records of the case whether an evidentiary hearing is required. If the motion to vacate, the answer and the records of the case show conclusively that Murphy is not entitled to relief under § 2255, there is no need for an evidentiary hearing. Baker v. United States, 781 F.2d 85, 92 (6th Cir. 1986).
Murphy was convicted by a jury of felon in possession in a firearm (three counts) and felon in possession of ammunition (one count), in violation of 18 U.S.C. § 922(g). He was sentenced as an armed career criminal under 18 U.S.C. § 924(e) to concurrent terms of imprisonment of 188 months on each count. On direct appeal, Murphy challenged the district court's denial of his motion to suppress the search of his residence. The Sixth Circuit concluded the district court did not err in denying the motion to suppress and affirmed Murphy's judgment of conviction. United States v. Murphy, 96 Fed.Appx. 981 (6th Cir. May 4, 2004).
In support of his § 2255 motion to vacate sentence, Murphy alleges the following:
(1) he was unlawfully classified as an armed career criminal; (2) he received ineffective assistance of counsel; (3) he was erroneously sentenced as an armed career criminal; and (4) he should not have been charged with constructive possession of the firearms and ammunition. Claims one and three are related and will be addressed together.
A. Classification and Sentence as Armed Career Criminal
The law provides a minimum mandatory sentence of fifteen (15) years for a person convicted of violating 18 U.S.C. § 922(g) who has three prior convictions for a violent felony or serious drug offense. 18 U.S.C. § 924(e)(1). A serious drug offense under state law is one "involving manufacturing, distributing, or possessing with intent to manufacture or distribute a controlled substance ..., for which a maximum term of imprisonment of ten years or more is prescribed by law." Id. § 924(e)(2)(A)(ii). A defendant who meets the criteria of an armed career criminal also receives, under the sentencing guidelines, a base offense level of 33. U.S.S.G. § 4b1.4(B)(3)(b).
Murphy was classified and sentenced as an armed career criminal based upon the following convictions:
Selling Heroin, Knox County Criminal Court, Docket No. 5730, sentence imposed January 31, 1972, of not less than five and not more than 10 years imprisonment. Sale of Heroin, Knox County Criminal Court, Docket No. 9468, sentence imposed June 6, 1975, of not less than five years nor more than 15 years imprisonment. Sale of Heroin, Knox County Criminal Court, Docket No. 9469, sentence imposed June 6, 1975, of not less than five years nor more than 15 years imprisonment. Sale of Heroin, Knox County Criminal Court, Docket No. 9470, sentence imposed June 6, 1975, of not less than ...