The opinion of the court was delivered by: J. Ronnie Greer United States District Judge
Rufus Ezra Neeley ("Neeley" or "petitioner"), a federal prisoner, has filed this "Petition Under 28 U.S.C. § 2255 To Vacate, Set Aside Or Correct Sentence By A Person In Federal Custody" [Doc. 49]. The United States has responded in opposition [Doc. 50] and the matter is now ripe for disposition. The Court has determined that the motion and the record of prior proceedings in the case conclusively establish that the petitioner is not entitled to relief under § 2255 and, therefore, no evidentiary hearing is necessary. For the reasons which follow, the petitioner's § 2255 motion lacks merit, and the motion will be denied.
I. Procedural and Factual Background
The federal grand jury returned a four count indictment against Neeley on May 27, 2003 charging Neeley with various firearms offenses. On July 28, 2003, Neeley entered a plea of guilty for possession of a firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) pursuant to a negotiated plea agreement with the government. A presentence report ("PSR") was prepared in which the probation officer concluded that petitioner was subject to a total offense level of 23 and a criminal history category VI, resulting in a guideline range of 92 to 115 months of imprisonment. The petitioner objected to the probation officer's inclusion in his criminal history of two prior allegedly uncounseled misdemeanor convictions that resulted in terms of imprisonment. The Court overruled petitioner's objection and found that the pleas were not uncounseled in that petitioner had waived his right to counsel in writing as demonstrated on the face of each of the state court judgments.
Petitioner also moved for a downward departure on grounds that his criminal history category over represented his criminal history. This Court denied departure on that basis. [Doc. 39]. Petitioner also requested a downward departure based upon the 28 months of a state sentence imposed on a related conviction. Pursuant to the terms of the negotiated plea agreement, the government recommended that the Court grant a downward departure on this ground by reducing the guideline range by 28 months. The Court granted a downward departure and departed 28 months from the top of the applicable guideline range of 115 months. On December 8, 2003, petitioner was sentenced to a term of 87 months imprisonment. Judgment was entered on December 17, 2003. The petitioner appealed and his judgment was affirmed on December 7, 2004. No petitioner for a writ of certiorari was filed and the judgment became final after the expiration of the 90 days within which petitioner could have filed a petition. The instant § 2255 petition was timely filed on November 28, 2005.
On direct appeal, Neeley argued that the district court erred in three respects:
(1) by departing 28 months from the top of the guideline range rather than the bottom;
(2) by including the two uncounseled state misdemeanor convictions in the calculation of his criminal history score; and (3) by denying his motion for downward departure on grounds that his criminal history category over represented his criminal history. The Court of Appeals held that it had no jurisdiction to review the scope or extent of this Court's downward departure and affirmed the inclusion of Neeley's prior misdemeanor convictions in his criminal history calculation.
This Court must vacate and set aside petitioner's conviction upon a finding 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(b). 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 material 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, 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). 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 (1994); Grant v. United States, 72 F. 3d 503, 506 (6th Cir. 1996), cert. denied, 517 U.S. 1200 (1996).
III. Analysis and Discussion
In his § 2255 motion, Neeley raises several issues, including claims of ineffective assistance of counsel. He argues that: (1) he was improperly assessed two criminal history points for a state misdemeanor conviction which resulted from the traffic stop in this case; (2) petitioner's criminal history is overrated; (3) the Florida arrest warrant used to arrest him in this case was invalid and thus his arrest in this case was illegal; and (4) he received ineffective assistance of counsel in that (i) defense counsel told him he would receive a sentence of 84 months if he signed the plea agreement; (ii) counsel failed to advise him of the "petite" rule; (iii) defense counsel "let the judge and prosecuter [sic] run their mouths about the 1994 charge"; (iv) the appeal filed in the Sixth Circuit by appellate counsel was "frevilous [sic]; and (v)counsel refused to "make a Blakley issue" concerning the terms of his supervised release.
1. Assessment of Criminal History Points For Petitioner's State Conviction For Driving on a Revoked License
Although difficult to decipher, petitioner apparently claims that he erroneously received two points for a driving on a revoked license conviction as the result of the traffic stop in this case. Petitioner's claim fails for several reasons. First of all, petitioner's plea agreement with the United States contains a waiver of his right "to file any post-conviction motions or pleadings pursuant to Title 28, United States Code, Section 2255" except upon grounds of ineffective assistance of counsel and prosecutorial misconduct not known to the petitioner at the time of petitioner's guilty plea. Neeley was questioned about this waiver at the change of plea hearing, acknowledged that he understood that he was waiving the right to file a § 2255 petition and indicated that he had discussed the waiver with his attorney. Nothing in the record suggests, and petitioner does not now contend, that the waiver was not knowledgeably and voluntarily made. Informed and voluntary waivers of the right to collaterally attack a conviction and sentence are clearly enforceable, Watson v. United States, 165 F.3d 486, 489(6th Cir. 1999), and the petitioner has waived his right to challenge the assessment of criminal history points in this regard through this § 2255 petition.
Secondly, petitioner has procedurally defaulted his right to assert this claim by failing to raise it on direct appeal before the Court of Appeals. A petitioner is procedurally barred from raising claims in a § 2255 motion, even those of constitutional magnitude, to which no contemporaneous objection was made or which were not presented on direct appeal. United States v. Frady, 456 U.S. 152, 167-68 (1982); Nagi v. United States, 90 F.3d 130, 134 (6th Cir. 1996). Where a petitioner has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in a motion under § 2255 only if the defendant first demonstrates either cause for the default and actual prejudice or that he is actually innocent. Bousley v. United States, 523 U.S. 614, 622 (1998). The petitioner here makes no claim of actual innocence and he makes no attempt to demonstrate either cause for the default or actual prejudice. In fact, petitioner cannot show actual prejudice because the two criminal history points were properly assessed. As noted in the PSR, criminal history points were not assessed for the state convictions that punish the same ...