The opinion of the court was delivered by: J. Ronnie Greer United States District Judge
Hope Brown ("petitioner" or Brown"), a federal prisoner, has filed a "Motion to Vacate, Set Aside or Correct Sentence Pursuant to 28 USC § 2255." [Doc. 1]. Subsequent to the filing of her motion, Brown filed a 29 page untitled pleading which the Court construes as a memorandum of law, [Doc. 9], a "Supplement For Purposes For Record Clarification," [Doc. 10], and a motion to amend her petition. [Doc. 11].*fn1 Her motion to amend petition was granted by the Magistrate Judge on January 19, 2007.
The United States has responded in opposition to the motion [Doc. 5] and the matter is now ripe for disposition. The Court has determined that the motion and 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
Brown was one of 14 defendants indicted by the federal grand jury on September 23, 2003, in a 205 count indictment charging various drug, money laundering, and illegal wire transfer offenses. Brown was charged in Counts 2, 3, 99, 100, 107, 120-22, 172-74 and 177. She pled guilty on December 13, 2004, to Counts 2 and 13 of the indictment, i.e., conspiracy to distribute and possess with the intent to distribute 50 grams or more of cocaine base (Count 2) and conspiracy to launder monetary instruments (Count 3).
A presentence report ("PSR") was ordered and disclosed to the parties on February 5, 2005. Based upon a total offense level of 33 and a criminal history category of I, Brown's advisory guideline range was 135 to 168 months of imprisonment. There were no objections to the PSR. On June 27, 2005, after a sentencing hearing, the Court varied downward and imposed a sentence of 120 months. Judgment was entered on July 11, 2005, and no direct appeal was taken. The instant § 2255 motion was timely filed on March 9, 2006.
At the time of the entry of petitioner's guilty plea, certain facts were stipulated to by the petitioner in connection with her plea:
Through the testimony of several witnesses, to include coconspirators, the government would demonstrate, beyond a reasonable doubt, that from approximately the month of January, 2000, and continuing to on or about September 23, 2003, the defendant did knowingly, intentionally and without authority conspire with at least one other person to distribute and possess with the intent to distribute at least 500 grams but less than 1.5 kilograms of a mixture or substance containing a detectible amount of cocaine base (crack), a Schedule II, controlled substance.*fn2 In furtherance of the conspiracy, defendant Brown distributed crack cocaine that she obtained from coconspirator Darryl McCrae. During the period between March and October, 2002, defendant Brown obtained two to four ounces of crack cocaine every two to three days from Darryl McCrae. In addition to distributing crack cocaine defendant sent drug proceeds via Western Union to Darryl McCrae. Finally, defendant Brown and a coconspirator traveled from the Eastern District of Tennessee to North Carolina to pick up supplies of crack cocaine that she transported back to Tennessee for further distribution. Defendant Brown made two trips per week during a three month period, picking up between nine and twenty-two ounces at a time.
During the investigation law enforcement agents conducted a trash pull from defendant Brown's residence and recovered baggies with corners missing, paperwork of drug debt records, and paperwork showing residence ownership and a letter asking her mother to put the residence in another name.*fn3
Also during the investigation, law enforcement agents made four purchases of crack cocaine, totaling 2.04 grams, from defendant Brown in recorded and surveilled transactions. During one of the transactions a confidential informant, acting at the directions of law enforcement agents, paid Brown $50.00 toward a previous drug debt.
Additionally, the PSR contained the following unobjected to facts:
According to Special Agent Rainer Drolshagen, of the Federal Bureau of Investigation, agents became aware of the members of the conspiracy in early 2000. Through the use of informants and confidential sources, it was determined that co-defendants Garrett Johnson, Gary McCrae, and Darrel McCrae, were obtaining cocaine base (crack) from North Carolina, and selling the drug to various distributors in the Johnson City area. These individuals were charged with engaging in a continuing criminal enterprise. Agent Drolshagen verified that coconspirators had independently provided information that defendant Brown was involved by assisting Darrell McCrae in his drug distribution activity and wiring money for McCrae for drug debts. The defendant became involved in the conspiracy based on her addiction to the drugs, and stated she was involved for a period of six months. She admitted traveling to North Carolina on occasion to pick up crack cocaine, and assisting in the distribution activities. Based upon the above information, the defendant will be held accountable for her involvement in the distribution of 500 grams to 1.5 kilograms of crack cocaine.
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, she must set forth facts which entitle her 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 ...