United States District Court, E.D. Tennessee, Greeneville
MEMORANDUM AND ORDER
RONNIE GREER, UNITED STATES DISTRICT JUDGE.
pleading guilty to conspiring to distribute and to possess
with the intent to distribute 280 or more grams of cocaine
base, Tavares Lashaun Dalton (“petitioner”) was
sentenced to 240 months' imprisonment. He has filed a
motion pursuant to 28 U.S.C. § 2255 to vacate, set aside
or correct his sentence, which he has twice amended, [Docs.
549, 598, 602].
Procedural and Factual Background
11, 2013, petitioner was charged, along with thirteen other
defendants, in a superseding indictment with conspiring to
distribute and to possess with the intent to distribute 280
or more grams of crack cocaine (Count One), and with
possessing 28 or more grams of crack cocaine with the intent
to distribute. (Count Two). After the Court dismissed his
first court-appointed attorney, Mr. Tom Rasnic was appointed
to represent petitioner.
September 23, 2013, the government filed an Information To
Establish Prior Convictions pursuant to 21 U.S.C. § 851
which recited that petitioner had two prior felony drug
convictions, one in March, 2010 in Fulton County, Georgia and
the other in March, 2011 in DeKalb County,
Georgia. If convicted on Count One, in light of
those two prior convictions petitioner confronted a mandatory
sentence of life imprisonment. 21 U.S.C. §841(b)(1)(A).
ultimately entered into a Rule 11(c)(1)(C) plea agreement
with the United States,  agreeing to plead guilty to Count One,
distribution and possession with the intent to distribute 280
or more grams of crack cocaine. In that plea agreement,
petitioner acknowledged that he was accountable for at least
280 grams of crack cocaine which established his offense
level at 32; that he had a prior felony drug conviction in
March, 2011 in DeKalb County, Georgia for which he was
sentenced to five years of imprisonment; that he waived his
right to file a direct appeal except with regard to a
sentence above the greater of the minimum mandatory statutory
sentence or his guideline range; and that he waived his right
to file a § 2255 motion except for claims of ineffective
assistance of counsel or prosecutorial misconduct unknown to
him at the time of entry of the judgment.
part, the United States agreed that the appropriate sentence
was 240 months, the minimum mandatory statutory sentence
applicable to a person accountable for 280 or more grams (but
less than 840 grams) of crack, and who had one prior
felony drug conviction. 21 U.S.C. § 841(b)(1)(A). The
government also agreed to file an amended § 851
Information, stating in it that petitioner had only one prior
felony drug conviction, the March, 2011 DeKalb County
conviction,  thereby lessening petitioner's
sentencing exposure to a mandatory minimum of 20 years. His
resulting guideline range was 262 to 327 months'
Court accepted the plea agreement and accordingly sentenced
petitioner to 240 months' imprisonment.
original motion, [Doc. 549], petitioner makes the following
Ground One: That the government was guilty of prosecutorial
misconduct because it agreed that it would not file a
§851 Information concerning the defendant's prior
Fulton County, Georgia, conviction, yet it did so, as a
result of which the Fulton County conviction, along with the
Dekalb County conviction, was used to enhance his sentence as
a “career offender”;
Ground Two: That the government breached its agreement to not
enhance his sentence based on a prior felony drug conviction,
presumably the Fulton County conviction;
Ground Three: That his attorney rendered ineffective
assistance by failing to appeal notwithstanding
petitioner's instructions that he do so; and
Ground Four: That his sentence violated the Sixth Amendment
to the Constitution because it “was enhanced well
beyond the advisory guideline range” as a result of the
government's breach of its agreement to not file an
§851 information regarding the Fulton County conviction.
first amendment to his motion, [Doc. 598], petitioner says
that his sentence was unconstitutionally enhanced under
Johnson v. United States, 135 S.Ct. 2551 (2015),
which held that the residual clause of the Armed Career
Criminal Act is unconstitutionally vague. In his second
amendment, [Doc. 602], petitioner asserts that his 2011
DeKalb County, Georgia conviction was only for a misdemeanor
offense and therefore should not have been used as a
predicate offense for finding him to be a career offender
under USSG § 4B1.1.
Standard of Review
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 or an egregious error
inconsistent with the rudimentary demands of fair procedure.
Reed v. Farley, 512 U.S. 339, 354 (1994); Grant
v. United States, 7 ...