United States District Court, E.D. Tennessee, at Chattanooga Division
CURTIS L. COLLIER, District Judge.
I. PROCEDURAL HISTORY
Acting pro se, federal inmate Derrick Hodge ("Petitioner" or "Hodge") brings this motion to vacate, set aside, or correct a sentence under 28 U.S.C. § 2255 (Court File No. 25). The United States has filed a response in opposition and Petitioner has replied to the United States' response (Court File Nos. 31 and 33). For the reasons which follow, Petitioner's § 2255 motion will be DENIED.
This case was initiated with the filing of a criminal complaint (Court File No. 1). Then, on April 13, 2010, the Grand Jury charged Hodge in a four-count indictment with commission of two cocaine-related offenses (Counts One and Two) and two firearm offenses (Counts Three and Four) (Court File No. 4). Thereafter, following the denial of Petitioner's motion to suppress and the government's filing of a notice of prior convictions under 21 U.S.C. § 851, he pleaded guilty to the cocaine conspiracy charge, a violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846, as alleged in Count One (Court File Nos. 15, 17, and 19). For this offense, Petitioner received, on December 3, 2010, a 240-month term of confinement and a ten-year term of supervised release, with judgment entering fourteen days later (Court File Nos. 21-22). Hodge did not file a direct appeal to the United States Court of Appeals for the Sixth Circuit, but instead brought this timely § 2255 motion to vacate on October 7, 2011, raising three main grounds for relief (Court File No. 25).
The stipulated facts underlying Hodge's conviction were contained in his signed plea agreement (Court File No. 20, ¶ 4). He confirmed those facts were true and correct at his rearraignment hearing before the undersigned district judge (Court File No. 46, Rearraignment Hr'g Tr. 10).
On April 9, 2010, investigators with the narcotics unit of the Chattanooga Police Department and an officer with the Alcohol, Tobacco, and Firearms task force executed a search warrant at Hodge's residence (Court File No. 20, ¶ 4). The officers discovered Petitioner hiding in a utility room and they also found in the room approximately 3.5 kilograms of cocaine. In Petitioner's master bedroom, the officers uncovered another one-half kilogram of cocaine and $388, 222 in cash. In the kitchen was an additional ounce of cocaine, two sets of digital scales, a bullet proof vest, and, near the drugs, a Taurus.357 revolver.
Hodge was informed of his rights under Miranda v. Arizona, 384 U.S. 436 (1966),  which he waived, and he admitted the cocaine, money, and revolver belonged to him. Petitioner acknowledged his purchases of cocaine were in 3-kilogram amounts, for which he paid $92, 000, and he stated he had the gun for protection. Based upon the four kilograms found in his possession at the time the search warrant was executed, Hodge stipulated it was clear he had purchased at least six kilograms of cocaine from his supplier and that he conspired with another to distribute five kilograms or more of a mixture and substance containing a detectable amount of cocaine.
III. 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 the sentence was imposed in violation of the Constitution or laws of the United States, the court lacked jurisdiction to impose the sentence, or 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). Relief for a non-constitutional error is warranted where a movant shows a fundamental defect in the criminal proceedings which inherently results in a complete miscarriage of justice or an egregious error that rises to the level of a violation of constitutional due process. Davis v. United States, 417 U.S. 333, 346 (1974); Gall v. United States, 21 F.3d 107, 109 (6th Cir.1994). statements he makes can be used against him, his right to counsel during questioning, and his right to have counsel appointed if he cannot afford one. Id . at 444.
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.
A. Ineffective Assistance of Counsel
Petitioner asserts his attorney gave him ineffective assistance by failing to investigate the nature of the offense to determine whether the elements of the cocaine conspiracy could be proven since "the government had no other [person] to accuse as a co-conspirator" (Court File 25, p. 11). Had counsel performed a minimal amount of research into this issue, counsel would have discovered the evidence was insufficient to support a conspiracy charge, leading to the conclusion his client was "factually and legally innocent" of the criminal conspiracy ( Id ., p. 9-10). Also, had counsel informed Hodge as to the government's duty to show an agreement with two or more persons, Petitioner could have made it known to counsel "that [he] did not agree with anyone to sell drugs in the manners [sic] that the law states is illegal" ( id ., p. 11).
And, had counsel disclosed the lack of evidence to support the existence of a cocaine conspiracy, Petitioner could have made "an informed and intelligent decision to demand and insist on a not guilty plea and pursue a jury trial, " ( id ., p. 11), and indeed he "would have insisted on going to trial and demanded that the ...