The opinion of the court was delivered by: J. Ronnie Greer United States District Judge
This matter is before the Court on the motion and amended motion of Ronnie Clevenger ("petitioner" or "Clevenger"), a federal prisoner, to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, [Docs. 1, 10]. The United States has responded in opposition to the motion and has filed the affidavit of William M. Liebrock, petitioner's trial counsel, in support of its opposition, [Doc. 20]. Clevenger subsequently supplemented his motion with his own affidavit and the affidavit of his wife, [Doc. 21]. The Court has determined that the files and records of the case conclusively establish that the petitioner is not entitled to relief under § 2255 and that, therefore, no evidentiary hearing is necessary. For the reasons which follow, the petitioner's motion will be DENIED.
I. Procedural and Factual Background
On September 23, 2003, an indictment was returned by the federal grand jury charging Ronnie Lee Clevenger with conspiring to manufacture marijuana, in excess of 100 plants, in violation of 21 U.S.C. §§ 846 and 841(a)(1) and (b)(1)(B) (Count I); with manufacturing marijuana, in excess of 100 plants, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B) (Count II); with manufacturing marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B) (Count III); and with possessing firearms in furtherance of drug trafficking crimes in violation of 18 U.S.C. § 924(c) (Count IV). After the filing of extensive motions in the case, Clevenger pled guilty on February 17, 2004, to Counts I and III of the indictment. Upon his guilty plea, the Court ordered a presentence report ("PSR") to be prepared by the United States Probation Office and a sentencing date of May 10, 2004, was set.
At the time of the entry of petitioner's plea of guilty, an agreed factual basis was submitted by the parties as part of the plea agreement in the case. The defendant stipulated to the following facts:
The following events occurred in Cocke County, Tennessee. In April 2002, law enforcement officers of the United States Forest Service observed a suspected marijuana cultivation site during an aerial reconnaissance in Cocke County, in the Eastern District of Tennessee. In May, 2002, law enforcement officers of the United States Forest Service conducted a ground reconnaissance of the same area and discovered a cultivated site of over 200 growing marijuana plants. Numerous dead plants were also found at the edge of the site. A footpath led from the site to a trail. The trail led to an open field behind 1063 Sierra Street, the residence of Donnie Clevenger. The residence is located approximately 1/4 mile from the site of the growing marijuana. A covert video surveillance system placed on the site by officers recorded the defendant, Ronnie Clevenger, and his co-defendant, Donnie Clevenger, tending and cultivating the marijuana plants on June 1, 2002, and on June 2, 2002. Donnie Clevenger was recorded walking on a trail leading to the site on June 16, 2002. On June 29, 2002, Donnie and Ronnie Clevenger were again recorded pulling weeds and applying fertilizer around the marijuana plants. On July 27, 2002, Donnie Clevenger was again recorded at the site, this time pulling male marijuana plants, a procedure used to increase the yield of the remaining female plants. On August 16, 2002, a search warrant was executed on the residence of Ronnie Clevenger. Seized, pursuant to that search, were more than 250 marijuana seeds; cultivation and pruning tools, which had been used to cultivate the marijuana plants described herein; scales for weighing marijuana; starter trays for cultivating marijuana; ziplock bags; peat pellets, used to cultivate marijuana; a spool of string, used to tie marijuana plants to stakes; 5 loaded firearms; camouflage clothing and face masks; a triple beam balance scale; a hedge trimmer, used to clear vegetation near marijuana plants; bug killer dust, used to treat marijuana plants; lime green rebar sticks used to support growing marijuana plants; a Honda all-terrain vehicle, used to transport Ronnie Clevenger to and from the site of the growing marijuana plants; bamboo poles, used to support and cultivate the growing marijuana plants; 8 quarts untaxed (moonshine) liquor; and 54 growing marijuana plants.
On April 8, 2004, the PSRprepared by the United States Probation Office was disclosed to the parties. Based on a total offense level of 17, which included a two level enhancement pursuant to USSG § 2D1.1(b)(1) for possession of a dangerous weapon, and a criminal history category of I, the PSR determined defendant's guideline range for imprisonment to be 24 to 30 months; however, because the defendant was subject to a statutory mandatory minimum sentence of 60 months imprisonment for Count 1, his guideline sentence was 60 months. On May 10, 2004, Clevenger was sentenced to the mandatory minimum term of 60 months imprisonment. No written objections to the PSR were filed by the defendant, and no objection was made by him orally at the sentencing hearing. Judgment was entered on May 18, 2004, and no direct appeal was taken by the petitioner.*fn1
Petitioner's pro se § 2255 motion was timely filed on March 1, 2005. In his petition, Clevenger alleges that he received an "[i]nconsistent and illegal sentence." As supporting facts, Clevenger states: "I was sentenced to 60 months while my co-defendant who had a prior conviction was sentenced to 24 months. I did not get the benefit of the safety valve and was enhanced because my home contained several firearms. None of the enhancing factors were considered by a jury prior to the entry of my plea of guilty and my sentence is simply unfair and illegal under the law." In the accompanying two page memorandum, petitioner refers to "recent developments in the sentencing guidelines" and cited Blakely v. Washington and United States v. Booker. He avers that not only is his sentence grossly unfair but it is one of the inequities that should be remedied by the recent cases of Blakely and Booker. Clevenger seeks a reduction in his sentence from 60 months to 24 months. On March 10, 2005, the Court summarily denied petitioner's § 2255 motion, holding that his safety valve argument was foreclosed by his failure to take a direct appeal and that Booker was not applicable to cases on collateral review, [Doc. 3].
On March 24, 2005, petitioner filed a motion to amend his original § 2255 motion, [Doc. 4], and a motion to alter or amend judgment, [Doc. 5]. In these filings, Clevenger alleged that his lawyer "failed to file a notice of appeal."*fn2 The Court granted petitioner's motion on April 25, 2005, and directed that he file any amended petition by May 20, 2005, [Doc. 6]. On May 13, 2005, petitioner filed his amended motion, [Doc. 10], and on May 20, 2005, filed a motion for appointment of counsel, [Doc. 11]. On June 7, 2005, the Court granted the motion for appointment of counsel and, on July 20, 2005, counsel filed a supplement to Clevenger's § 2255 motion, [Doc. 16].*fn3 In this supplement, it is alleged that petitioner "advised his counsel he wanted to appeal his sentence." The United States was ordered to respond and the government's response was filed on September 26, 2005, [Doc. 20]. In a second supplement to his § 2255 petition filed on April 21, 2006, the petitioner filed his affidavit and that of his wife.
This Court must vacate and set aside petitioner's 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 governing rules, the Court is to consider initially whether the face of the motion itself, together with the annexed exhibits and prior proceedings in the case, reveal that 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." 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. 1966).
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. See Brecht v. Abrahamson, 507 U.S. 619 (1993) (citations 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). To warrant relief for a non-constitutional error, the petitioner must show a fundamental defect in the proceeding 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 (1994); Grant v. United States, 72 F.3d 503, 506 (6th Cir.) , cert. denied, 517 U. S. 1200 (1996). In order to obtain collateral relief under § 2255, a petitioner must clear a significantly higher hurdle than would exist on direct appeal. United States v. Frady, 456 U.S. 152 (1982).
Petitioner did not appeal his conviction or sentence. In order to obtain review in a § 2255 proceeding on an issue not raised on direct review, a petitioner must demonstrate cause for his failure to raise the issue on appeal and prejudice arising therefrom. See Frady, 456 U.S. at 167-168; Ratliff v. United States, 999 F.2d 1023, 1025 (6th Cir. 1993). Petitioner in this case alleges two instances of ineffective assistance of counsel. First of all, he alleges that counsel failed to file an appeal of the Court's sentence even though the petitioner had requested him to do so. Secondly, he argues that his counsel was ineffective in failing to object to the factual determination that Clevenger possessed a firearm in connection with the underlying offense, thereby making Clevenger ineligible ...