United States District Court, E.D. Tennessee, Greeneville
MEMORANDUM AND ORDER
RONNIE GREER UNITED STATES DISTRICT JUDGE.
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.
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. Count One carried a minimum mandatory
sentence of ten years up to a maximum of life, 21 U.S.C.
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
was sentenced on June 25, 2012. His guideline range was 121
to 151 months. This Court sentenced petitioner to 136
months imprisonment, precisely in the middle of his guideline
range. The judgment was filed on June 28, 2012.
No appeal was filed.
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.
The Government's Response
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.
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.
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).
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 ...