United States District Court, M.D. Tennessee, Nashville Division
DANIEL W. GREEN
UNITED STATES OF AMERICA
H. SHARP, UNITED STATES DISTRICT JUDGE
Pending before the Court is a Motion Under 28 U.S.C. §
2255 To Vacate, Set Aside, Or Correct Sentence (Docket Nos.
1, 8), filed by the Movant/Petitioner, pro se. The Government
has filed a Response (Docket No. 18) in opposition to the
reasons set forth herein, Petitioner's Motion (Docket No.
1) is DENIED, and this action is DISMISSED.
Procedural and Factual Background
underlying criminal case, the Petitioner was charged with two
counts of production of child pornography, in violation of 18
U.S.C. § 2251(a), and one count of receipt of child
pornography, in violation of 18 U.S.C. § 2252A(a)(2)(A).
(Docket No. 1 in Case No. 3:10-cr-00098). The Sixth Circuit
described the facts underlying the charges as follows:
In late 2009, Green's seven- and ten-year-old
step-granddaughters told their grandmother that Green had
been molesting them for at least a year. A search of
Green's home confirmed that Green videotaped and
photographed himself molesting the girls on multiple
occasions. The search also revealed that Green downloaded
numerous images and videos depicting the sexual exploitation
(Docket No. 170, at 1, in Case No. 3:10-00098); United
States v. Daniel W. Green, 608 F.App'x 383, 384,
2015 WL 3559196 (6th Cir. 2015).
second day of his trial, after the victims' grandmother
had testified, the Petitioner pled guilty, without a plea
agreement, before now-retired Judge Todd J. Campbell. (Docket
Nos. 83, 142, 169 in Case No. 3:10-cr-00098). At the
subsequent sentencing hearing, Judge Campbell determined that
the initial sentencing guideline range was life imprisonment,
based on Petitioner's offense level of 48, reduced to 43
because the Sentencing Table tops out at 43, and Criminal
History Category I. (Docket No. 162, at 3-7, in Case No.
3:10-00098). Because the statutory maximum for Counts One and
Two was 15 years, and the statutory maximum for Count Three
was 20 years, however, the maximum sentence was 960 months,
or 80 years. (Id.) After consideration of the
factors set forth in 18 U.S.C. § 3553, Judge Campbell
determined that the sentences on each of the three counts
should run consecutively, and imposed a total sentence of 960
months. (Docket Nos. 157, 158, 159, 162 in Case No.
Petitioner appealed the validity of his guilty plea and the
reasonableness of his sentence, and the Sixth Circuit
affirmed. (Docket Nos. 160, 170, 175 in Case No.
3:10-cr-00098); United States v. Daniel W. Green,
The Petitioner's Claims
Petitioner contends that his convictions and sentence should
be vacated because he received the ineffective assistance of
The Section 2255 Remedy
2255 provides federal prisoners with a statutory mechanism by
which to seek to have their sentence vacated, set aside or
corrected. The statute does not provide a remedy,
however, for every error that may have been made in the
proceedings leading to conviction. “‘To warrant
relief under section 2255, a petitioner must demonstrate the
existence of an error of constitutional magnitude which had a
substantial and injurious effect or influence on the guilty
plea or the jury's verdict.'” Humphress v.
United States, 398 F.3d 855, 858 (6th Cir. 2005)(quoting
Griffin v. United States, 330 F.3d 733, 736 (6th
evidentiary hearing is not required if the record
conclusively shows that the Petitioner is not entitled to
relief. 28 U.S.C. § 2255(b); Ray v. United
States, 721 F.3d 758, 761 (6th Cir. 2013); Arredondo
v. United States, 178 F.3d 778, 782 (6th Cir.
1999). No hearing is required “if the petitioner's
allegations ‘cannot be accepted as true because they
are contradicted by the record, inherently incredible, or
conclusions rather than statements of fact.'”
Court has reviewed the pleadings, briefs and records filed in
Petitioner's underlying criminal case, as well as the
pleadings, briefs and records filed by the parties in this
case. The Court finds it unnecessary to hold an evidentiary
hearing because these records conclusively establish that
Petitioner is not entitled to relief on the issues raised.