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Dalton v. United States

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

January 26, 2017

TAVARES LASHAUN DALTON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM AND ORDER

          J. RONNIE GREER, UNITED STATES DISTRICT JUDGE.

         After 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].[1]

         I. Procedural and Factual Background

         On June 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).[2] After the Court dismissed his first court-appointed attorney, Mr. Tom Rasnic was appointed to represent petitioner.[3]

         On 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.[4] 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).

         Petitioner ultimately entered into a Rule 11(c)(1)(C) plea agreement with the United States, [5] 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.

         For its 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, [6] thereby lessening petitioner's sentencing exposure to a mandatory minimum of 20 years. His resulting guideline range was 262 to 327 months' imprisonment.[7]

         The Court accepted the plea agreement and accordingly sentenced petitioner to 240 months' imprisonment.[8]

         II. Petitioner's Motion

         In his original motion, [Doc. 549], petitioner makes the following claims:

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.

         In his 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.

         III. 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 (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 ...


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