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Hardin v. United States

United States District Court, E.D. Tennessee, Greeneville

November 2, 2016

STEVE HARDIN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM AND ORDER

          J. RONNIE GREER UNITED STATES DISTRICT JUDGE.

         Steve Hardin (“petitioner”) is a federal prisoner due to his conviction and sentence in this Court for conspiring to manufacture 50 or more grams of methamphetamine. Petitioner has filed a motion pursuant to 28 U.S.C. §2255 to vacate, set aside, or correct his sentence. [Doc. 98]. For the reasons discussed in this memorandum, the motion is DENIED.

         I. General Background

         On August 9, 2011, petitioner and three others were charged with various offenses involving the manufacture and distribution of methamphetamine. Petitioner was charged in Count One with conspiring to manufacture 50 or more grams of methamphetamine; in Count Two with distributing and possessing with the intent to distribute 50 or more grams of methamphetamine; and in Count Four with possessing the equipment and chemicals used to manufacture the drug.[1] Count One carried a minimum mandatory sentence of ten years up to a maximum of life, 21 U.S.C. §§846, 841(b)(1)(A).

         Attorney Charles Martin, a member of the Criminal Justice Act Panel of this Court, was appointed to represent petitioner. On January 17, 2012, petitioner and the government entered into a plea agreement in which petitioner (1) pled guilty to Count One, conspiring to manufacture 50 or more grams of methamphetamine; (2) agreed to waive his right to file a direct appeal except to contest any sentence imposed upon him which was above the greater of his guideline range or the minimum mandatory sentence; and (3) agreed to waive his right to collaterally attack his conviction or sentence except for claims of ineffective assistance of counsel or prosecutorial misconduct unknown to him at the time of the entry of judgment.[2]

         Petitioner's was sentenced on June 25, 2012. His guideline range was 121 to 151 months.[3] This Court sentenced petitioner to 136 months imprisonment, precisely in the middle of his guideline range.[4] The judgment was filed on June 28, 2012. No appeal was filed.

         II. Petitioner's Motion

         On March 3, 2014, petitioner filed his motion to vacate, set aside, or correct his sentence. In his motion, he asserts a single ground: that attorney Martin was ineffective for failing to comply with petitioner's instructions to file a notice of appeal.[5]

         III. The Government's Response

         The government makes two succinct arguments: First, petitioner waived his right to a direct appeal, and even if this court granted an untimely appeal, it “likely” would be dismissed by the Sixth Circuit. Second, the motion was filed well beyond the one-year limitation period of 28 USC § 2255 (f) and is therefore barred.

         IV. Legal Standard

         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 (6th Cir.), 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 ...


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