The opinion of the court was delivered by: R. Allan Edgar, United States District Judge
Before the Court is a motion by defendant Henry Eugene Stamper ("Stamper") to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 [Court File No. 1]. Stamper has raised four claims in his § 2255 motion. In support of his ineffective assistance of counsel claim, he has identified six separate instances of allegedly deficient performance. For the reasons which follow, the Court determines a hearing is not necessary and Stamper's motion will be DENIED [Court File No. 1].
I. 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 4 of the Rules Governing Section 2255 Proceedings In The United States District Courts, the Court is to consider initially whether the face of the motion itself, together with the annexed exhibits and prior proceedings in the case, reveals 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." 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. Reed v. Farley, 512 U.S. 339, 353 (1994); Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (citation omitted) (§ 2254 case); Hill v. United States, 368 U.S. 424, 428 (1962); 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. at 354; Grant v. United States, 72 F.3d 503, 506 (6th Cir.), cert. denied, 517 U.S. 1200 (1996).
"On collateral review, a trial error is deemed harmless unless it had a 'substantial and injurious effect or influence in determining the jury's verdict.'" Fair v. United States, 157 F.3d 427, 430 (6th Cir., 1998), quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). "It is a 'well-settled principle that to obtain collateral review relief a prisoner must clear a significantly higher hurdle than would exist on direct appeal.'" Fair, 157 F.3d at 430, quoting United States v. Frady,456 U.S. 152, 166 (1982). A defendant must show a "fundamental defect" in the proceedings which necessarily results in a complete miscarriage of justice or an egregious error which violates due process in order to prevail under 28 U.S.C. § 2255. See Fair v. United States, 157 F.3d at 430, Gall v. United States, 21 F.3d 107, 109 (6th Cir. 1994).
II. Procedural and Factual Background
A federal grand jury returned a one-count indictment against Henry Eugene Stamper on March 26, 2003. Stamper, a convicted felon, was charged with violating 18 U.S.C. § 922(g), that is, knowingly and unlawfully possessing a Titan .25 caliber pistol; an Arminius .32 caliber revolver; a Brasileria SS Dresge Model 151 12 gauge shotgun; a Harrington and Richardson Model 158 12 gauge shotgun; a Ranger Model 34 .22 caliber rifle; a Springfield 12 gauge shotgun; a Strum Ruger .22 caliber rifle; and ammunition.
Stamper filed a notice of his intent to plead guilty without the benefit of a plea agreement and reserved his right to file a motion to suppress and to appeal any unfavorable ruling (Crim. Court File No. 14). Although Stamper subsequently filed a motion to suppress, he withdrew his motion to suppress and entered a guilty plea (Crim. Court File No. 16). Stamper appealed his conviction to the United States Court of Appeals for the Sixth Circuit. On January 25, 2005, the Sixth Circuit granted the agreed motion to remand the case to the district court in light of the Supreme Court's decision in United States v. Booker and United States v. Fanfan, 543 U.S. 220 (2005) and noted the ineffective assistance of counsel claim would be submitted on briefs (Crim. Court File No. 29). On February 2, 2005, the Sixth Circuit disposed of the remaining claims but declined to review the ineffective assistance of trial counsel claim since it was first raised on direct appeal. A mandate was issued by the Sixth Circuit affirming Stamper's conviction on February 25, 2005. On June 20, 2005, pursuant to the remand, the Court conducted a sentencing hearing and reduced Stamper's sentence from 84 months to 46 months. Stamper filed the instant motion on November 1, 2005.
The following recitation of facts is taken from the offense conduct section of the Presentence Investigation Report ("PSR"):
5. On November 9, 2002, an officer of the Chattanooga, Tennessee Police Department responded to a domestic violence call. Upon arrival to the location, the officer encountered Tara Stamper, the defendant's wife. Mrs. Stamper told the officer that she and the defendant had gotten into an argument over a phone call the defendant received from a suspected girlfriend. Mrs. Stamper decided to leave the defendant's home because of the phone call, but Mr. Stamper slapped her and ordered her to stay in the house. Then, Mrs. Stamper told the officer that her husband pulled out a silver revolver, pointed it at her, and threatened to kill her. The officer then questioned the defendant who admitted ownership of several firearms. The officer confiscated a Titan .25 caliber pistol; Arminius .32 caliber revolver; Brasileira SS Kresge, Model No. 151 12 gauge shotgun; Harrington and Richardson Model No. 158, 12 gauge shotgun; Ranger Model No. 34 .22 caliber rifle (no serial number due to age of weapon); Springfield 12 gauge shotgun (no serial number due to age of weapon); and a Strum Ruger .22 caliber rifle. The officer also recovered miscellaneous ammunition, including a magazine clip. Having confiscated all of the defendant's weapons, the officer arrested Mr. Stamper and charged him with Aggravated Assault and Unlawful Possession of a Firearm (charges have been dismissed in state court).
The Court will address Stamper's claims in the order in which they appear in his § 2255 motion.
A. Illegal Search and Seizure
Stamper claims that the search of his residence and the seizure of several weapons from his residence were illegal because his estranged wife, Ms. Tara Robinson ("Ms. Robinson"), upon whom he had a restraining order issued preventing her from coming about or contacting him at his residence, did not have standing to consent to the search of his residence. Although it is unnecessary for the Court to address the consent issue, since, as explained below, this claim is barred from § 2255 review, the Court does observe that it appears that under Tennessee law the restraining order, which was signed on September 12, 2002, was not in effect on November 9, 2002.*fn1
On direct appeal Stamper argued the district court erred in denying a motion to suppress evidence. The Sixth Circuit observed that the record shows the motion was withdrawn prior to the entry of the plea on the advice of defense counsel. The Sixth Circuit concluded that by withdrawing the motion to suppress, Stamper waived the arguments presented in that motion and they lacked jurisdiction to review those arguments (Crim. Court File No. 30). Likewise, this Court lacks jurisdiction to review this suppression claim because Stamper waived this argument when he dismissed his suppression motion. In addition, this lower court cannot review the decision of the Court of Appeals and is bound by the decision of the Sixth Circuit adjudicating Stamper's direct appeal.
Moreover, once a matter has been decided adversely to a defendant on direct appeal, he may not re-litigate it in a collateral attack under § 2255. Stamper is prohibited from using a § 2255 motion to re-litigate the same issues that were presented and decided on his direct appeal absent exceptional circumstances or an intervening change in the law. Wright v. United States, 182 F.3d 458, 467 (6th Cir. 1999). Stamper offers no new issues of fact or law differentiating this from his appellate claim. Stamper is attempting to re-litigate matters that were previously considered and rejected by the United States Court of Appeals for the Sixth Circuit. Accordingly, absent exceptional circumstances which would allow Stamper to re-litigate this issue, this claim will be DENIED.
Even assuming this claim is properly before the Court Stamper is not entitled to any relief on it because a voluntary and unconditional guilty plea waives all non-jurisdictional defects in the proceedings. United States v. Broce, 488 U.S. 563, 574-75 (1989); Tollett v. Henderson, 411 U.S. 258, 266-67 (1973) (holding that a defendant who has pleaded guilty waives his right to appeal constitutional violations that occurred prior to the guilty plea). The record before the Court in the instant case demonstrates Stamper's plea was knowing and voluntary. Therefore, Stamper has waived any suppression issue by his unconditional guilty plea. United States v. Herrera, 265 F.3d 349, 351-52 (6th Cir. 2001). Although Stamper's notice of intent to plead guilty reserved the right to file a motion to suppress and to appeal any unfavorable ruling (Crim. Court File No. 14), he subsequently withdrew his motion to suppress (Crim. Court File No. 17) which effectively forecloses the assertion of suppression on collateral review.
As revealed by the re-arraignment transcript, counsel, while Stamper was present in open court, announced they were withdrawing their motion to suppress. The re-arraignment transcript further reflects Stamper entered a knowing and voluntary guilty plea, thus waiving all the non-jurisdictional defects of which he now complains. The Court complied with the requirements of Fed.R.Crim.P. 11, properly determining that Stamper knowingly and voluntarily entered his guilty plea. Thus, in following the requirements of Rule 11, the Court carefully determined Stamper understood his applicable constitutional rights; that his plea of guilty was voluntary; that he had a full understanding of the nature of the crime charged and the consequence of his guilty plea; and that a factual basis did indeed exist for the crimes to which he pleaded guilty. See United States v. Goldberg, 862 F.2d 101, 106 (6th Cir.1988). Therefore, Stamper's voluntary and unconditional plea waived his illegal search and seizure claims.
Stamper had the opportunity, instead of entering his guilty plea, to challenge the search of his residence and the seizure of the firearms to show that the search and seizure were illegal. Stamper chose not to challenge the search and seizure when he dismissed his motion to suppress and entered his guilty plea, thus relinquishing that entitlement. Although Stamper may now think he made a strategic miscalculation, Supreme Court precedent demonstrates he is not entitled to collateral relief on this basis.
In summary, Stamper's guilty plea admits all averments of fact in the indictment, cures all non-jurisdictional defects, waives all defenses, and relieves the prosecution from the duty of proving any facts. See Tollett v. Henderson, 411 U.S. at 260-67 ("When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea."). Thus, Stamper's guilty plea admitted he was a convicted felon who knowingly possessed several firearms. Therefore, Stamper's guilty plea, voluntarily and knowingly entered, as reflected in the re-arraignment transcript and discussed in detail in supra Section B.2., waives all non-jurisdictional defects, including all alleged constitutional errors occurring before the plea. United States v. Broce, 488 U.S. 563, 574-75 (1989); Tollett v. Henderson, 411 U.S. 258, 266-67 (1973); Boykin v. Alabama, 395 U.S. 238, 243 (1969). Accordingly, Stamper's illegal search and seizure claims provide no basis for relief and collateral attack on this basis is foreclosed.
B. Ineffective Assistance of Counsel
Stamper claims he did not receive effective assistance of counsel (Court File No. 1, at 6). In order to demonstrate ineffective assistance of counsel, Stamper must show not only that his attorney's representation fell below the standard of competence demanded of attorneys in criminal cases but also that there is a reasonable probability that, but for the attorney's unprofessional errors, the ...