The opinion of the court was delivered by: Chief Judge Curtis L. Collier
Dennis J. Dillard ("Dillard") has filed a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 (Crim. Court File No. 60). Dillard contends counsel was ineffective for filing an Anders brief and failing to challenge several aspects of his sentence.
Having reviewed the materials thus submitted, together with the complete record of the underlying criminal case, the Court finds they show conclusively Dillard is not entitled to relief on the claims asserted; thus, an evidentiary hearing is not needed in this matter. See United States v. Todaro, 982 F.2d 1025, 1028 (6th Cir. 1993). Accordingly, the Court will decide the matter and explain the reasons Dillard's asserted grounds for relief are without merit. Rule 8(a) of the Rules Governing Section 2255 Proceedings in the United States District Courts.
I. NON-DISPOSITIVE MOTIONS
Dillard has filed a motion for discovery (Court File No. 69) and a motion for an expedited ruling on his § 2255 motion (Court File No. 70). In the absence of some valid reason or showing of justifiable need, the motion for discovery is DENIED (Court File No. 69). The motion for an expedited ruling on his § 2255 motion is DENIED as MOOT (Court File No. 70).
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).
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).
Dillard pleaded guilty on March 3, 2005, without benefit of a plea agreement, to being a felon is possession of a firearm in violation of 18 U.S.C. § 922(g)(1). On June 17, 2005, Dillard was sentenced as an Armed Career Criminal ("ACC") to a term of 215 months imprisonment consecutive to any previous state or federal sentence, five years supervised release, and a $100.00 special assessment (Court File No. 40).
The United States Court of Appeals for the Sixth Circuit affirmed Dillard's conviction and sentence on December 5, 2006 (Crim. Court File No. 57). On March 30, 2007, Dillard timely filed the instant § 2255 motion.
As part of his plea agreement, Dillard agreed to the following facts: On August 9, 2000, CPD officer Richard Patterson received a radio call from dispatch to check the 1100 block of Central Avenue in Chattanooga in the Eastern District of Tennessee for 2 black males walking down the street, with one of them possibly carrying a rifle. When Officer Patterson arrived at that location, he saw the defendant walking with another black male. The defendant appeared to be carrying a rifle. Officer Patterson turned his car around and saw the defendant drop the gun along the sidewalk. Patterson stopped the 2 individuals, identified the defendant, and recovered the rifle, a Colt, Colteer .22 caliber semi-automatic rifle. The gun was manufactured outside the state of Tennessee. The defendant had a prior conviction before August 9, 2000. (Criminal Court Case 1:02-cr-167, Court File No. 23).
A. Ineffective Assistance of Counsel Claims
Dillard asserts six claims against defense counsel. Dillard alleges counsel was constitutionally ineffective for filing an Anders brief and failing to challenge several aspects of his sentence: (1) his 215 month sentence when his mandatory minimum was only 180 months; (2) he was denied a third point reduction for acceptance of responsibility; (3) his sentence was run consecutive to this state case; (4) he allegedly was not given proper jail credit for time he was incarcerated by the state prior to receiving the federal detainer case; (5) a conviction received subsequent to the date of the offense conduct in the instant case was used to enhance his sentence; and (6) the prior burglary conviction was erroneously relied upon to enhance his sentence in violation of his Sixth ...