United States District Court, E.D. Tennessee, Knoxville
DANNY R. RICHARDSON, Petitioner,
UNITED STATES OF AMERICA, Respondent.
J. RONNIE GREER UNITED STATES DISTRICT JUDGE
This matter is before the Court on Danny R. Richardson’s (“Richardson” or “petitioner”) “Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody”, (Doc. 614). The United States has responded in opposition, [Doc. 837], and the time for reply by Richardson has passed. Also pending before the Court is Richardson’s motion to appoint counsel, [Doc. 882]. These matters are now ripe for disposition. The Court has determined that the files and records in the case conclusively establish that petitioner is not entitled to relief under § 2255 and, therefore, no evidentiary hearing is necessary. As a result, petitioner’s motion to appoint counsel will be DENIED and, for the reasons which follow, the §2255 motion will also be DENIED.
I. Procedural and Factual Background
Richardson was indicted by the federal grand jury on September 13, 2011 along with 19 co-defendants, [Doc. 3]. Richardson was charged in Count 1 of the indictment with conspiracy to distribute and possess with the intent to distribute 1000 kilograms or more of marijuana in violation of Title 21 United States Codes § 846 and 841(a)(1), and in Counts 15 and 20 with possession of marijuana with the intent to distribute in violation of Title 21 United States Code § 841(a)(1). Petitioner subsequently pled guilty on November 29, 2011, pursuant to a negotiated plea agreement, to the lesser included offense of conspiracy to distribute and possess with the intent to distribute more than 100 kilograms of marijuana, [Doc. 198]. A presentence investigation report (“PSR”) was ordered and prepared by the probation officer. The PSR, unobjected to by either party, established that Richardson was a career offender under USSG § 4B1.1 as the result of numerous Tennessee prior felony drug convictions. These prior drug convictions subjected Richardson to a mandatory minimum term of ten years of imprisonment pursuant to 21 U.S.C. § 841(b)(1)(B), [see Information To Establish Prior Conviction, Doc. 124], and his advisory guidelines range was 262 to 327 months of imprisonment. On April 2, 2012, Richardson was sentenced to a below guidelines sentence of 192 months of imprisonment followed by an eight year term of supervised release. [Doc. 496]. The remaining counts of the indictment were dismissed upon motion by the government, [Id.]. Judgment was entered on April 10, 2012, [Doc. 512]. No direct appeal was filed and the instant motion to vacate was timely filed on August 8, 2012.
Petitioner’s plea agreement contained the following stipulated facts:
a) Through the testimony of several witnesses, including co-conspirators, the United States would demonstrate, beyond a reasonable doubt, that between January of 2008 and June of 2010, in the Eastern District of Tennessee, the defendant did knowingly, intentionally, and without authority, conspire with at least one other person to distribute and to possess with the intent to distribute approximately 682 kilograms of marijuana, a Schedule I controlled substance.
b) During the course of the conspiracy, the defendant obtained marijuana from a co-defendant which he then further distributed in the Eastern District of Tennessee.
c) Beginning approximately January of 2008, the defendant received a conservative amount of 50 pounds of marijuana monthly from a co-defendant. These transactions occurred in Newport, Tennessee, in Middlesboro, Kentucky, and in Tazewell, Tennessee, and, during some months, there were multiple transactions involving marijuana. The defendant then distributed this marijuana in pound quantities to customers in the Eastern District of Tennessee.
d) The defendant admits that he was paying approximately $1, 000.00 per pound and was selling it in smaller quantities to his customers.
e) The defendant admits that from January of 2008 to May of 2010, the defendant obtained a conservative estimate of fifty pounds of marijuana per month which he then distributed, or a total of 1500 pounds or 682 kilograms.
[Doc. 198, ¶ 4].
II. Standard of Review
This Court must vacate and set aside petitioner’s 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 Governing Rules, the Court is to consider initially whether the face of the motion itself, together with the annexed exhibits and prior proceedings in the case, reveal 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.” 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). 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 (6thCir.), cert. denied, 439 U.S. 988 (1978). To warrant relief for a non-constitutional error, petitioner must show a fundamental defect in the proceeding that resulted in a complete miscarriage of justice or an egregious error ...