United States District Court, E.D. Tennessee, Chattanooga Division
HARRY S. MATTICE, Jr., District Judge.
Acting pro se, federal inmate George Shropshire ["petitioner"] brings this motion to vacate, set aside, or correct a sentence under 28 U.S.C. § 2255 (Doc. 38). The United States has filed a response in opposition to the § 2255 motion to vacate (Doc. 48). Petitioner sought and was granted extra time to reply to the response, but he did not submit a reply (Docs. 49-50).
For the reasons which follow, petitioner's § 2255 motion will be DENIED.
On August 16, 2009, an officer with the Chattanooga, Tennessee police department attempted to make a traffic stop of petitioner for a seat belt violation, but petitioner fled in his vehicle at a high rate of speed. The officer, in full pursuit, witnessed petitioner throw items from his car and noted the locations of the tossed items. Petitioner, who had stopped his vehicle and fled on foot, was apprehended by officers who then returned to the areas where the items had been discarded and retrieved them. The items so retrieved consisted of 4.5 grams of crack cocaine, as determined later by laboratory tests. Upon petitioner's arrest, he was informed of his rights under Miranda v. Arizona, 384 U.S. 436 (1966), which he waived, and admitted throwing crack cocaine from his vehicle.
On May 5, 2010, the Grand Jury charged petitioner in a two-count indictment with commission of crack cocaine offenses (Doc. 2). Thereafter, the government filed a notice under 21 U.S.C. § 851 indicating its intent to enhance petitioner's sentence, based on his prior 1999 and 2004 Hamilton County, Tennessee felony convictions for controlled substance offenses (Doc. 14). Petitioner pled guilty to Count two of the indictment, which charged him with possession with intent to distribute a mixture and substance containing cocaine base (crack), a violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) (Doc. 27).
The facts underlying petitioner's conviction, as set forth above, were contained in his signed plea agreement (Doc. 28). He confirmed that those facts were true and accurate at his rearraignment hearing before United States Magistrate Judge Susan K. Lee, (Doc. 45, Rearraignment Hr'g Tr. at 17-18).
On March 21, 2011, for his offense of conviction, petitioner received a 188-month term of confinement and a 6-year term of supervised release, with judgment entering two days later (Docs. 36-37). Petitioner acknowledged, at his sentencing, that he had been convicted previously of the two felony cocaine-related offenses, described in the § 851 notice (Doc. 47, Sent. Hr'g Tr. at 4-5). Petitioner did not file a direct appeal to the Sixth Circuit, but instead brought this timely § 2255 motion to vacate on March 13, 2012 (Doc. 38).
II. Standard of Review
Under 28 U.S.C. § 2255(a), a federal prisoner may make a motion to vacate, set aside, or correct his judgment of conviction and sentence, if he claims that the sentence was imposed in violation of the Constitution or laws of the United States; that the court lacked jurisdiction to impose the sentence; or that the sentence is in excess of the maximum authorized by law, or is otherwise subject to collateral attack. As a threshold standard, to obtain post-conviction relief under § 2255 a motion must allege: (1) an error of constitutional magnitude; (2) a sentence imposed outside the federal statutory limits; or (3) an error of fact or law so fundamental as to render the entire criminal proceeding invalid. Mallett v. United States, 334 F.3d 491, 496-97 (6th Cir. 2003); Moss v. United States, 323 F.3d 445, 454 (6th Cir. 2003).
A petitioner bears the burden of demonstrating an error of constitutional magnitude which had a substantial and injurious effect or influence on the criminal proceedings. Reed v. Farley, 512 U.S. 339, 353 (1994); Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993). 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).
Under Rule 8 of the Rules Governing Section 2255 Proceedings, a court is to determine, after a review of the answer and the records of the case, whether an evidentiary hearing is required. If the motion to vacate and the other documents show conclusively the petitioner is not entitled to relief under § 2255, there is no need for an evidentiary hearing. Baker v. United States, 781 F.2d 85, 92 (6th Cir. 1986).
The Court sees no need for an evidentiary hearing in the instant case.
In his § 2255 motion, petitioner offers, as grounds for relief, two main claims of ...