United States District Court, E.D. Tennessee, Greeneville
MEMORANDUM AND ORDER
Jordan United States District Judge.
Morris, (“petitioner”), has filed a motion to
vacate, set aside, or correct his sentence pursuant to 28
U.S.C. § 2255. [Doc. 266]. For the reasons discussed in
this memorandum and order, his motion will be DENIED.
superseding indictment filed on August 12, 2008, petitioner
was charged in Count One with conspiring with other
defendants to distribute and to possess with the intent to
distribute 50 or more grams of cocaine base
(“crack”), and in six other counts with
additional cocaine or crack offenses.
January 7, 2009, petitioner and the United States entered
into a plea agreement [doc. 131], in which petitioner pled
guilty to Count One. In that plea agreement, petitioner
waived his right to collaterally attack his conviction and
sentence except for claims of ineffective assistance of
counsel or prosecutorial misconduct unknown to him at the
time of entry of judgment.
shown by the government's notice filed pursuant to 21
U.S.C. § 851, petitioner had two prior felony drug
convictions. At that time, the punishment for a
defendant who conspired to distribute 50 or more grams of
crack and who had two prior felony drug convictions was a
mandatory life sentence under 21 U.S.C. §
841(b)(1)(A)(iii) [2006 ed.].
government later amended its § 851 notice to the extent
that it sought an enhanced sentence based on only
one prior felony drug conviction. By virtue of that
amended § 851 notice, petitioner was subject to only a
mandatory minimum sentence of 20 years under the version of
21 U.S.C. § 841(b) then in effect.
sentencing range under the 2008 version of the United States
Sentencing Guidelines was 135 to 168 months'
imprisonment. However, as required by statute, the Court
sentenced him to the mandatory minimum 240 months of
imprisonment, as well as ten years on supervised
result of the Fair Sentencing Act's increase of the
amount of crack required to trigger a given sentence and
Dorsey v. United States, 567 U.S. 260 (2012), this
Court re-sentenced petitioner under 21 U.S.C. §
841(b)(1)(B) to the then-applicable minimum mandatory
sentence of 120 months, plus eight years' supervised
release. Petitioner's guideline range remained
135 to 168 months of imprisonment, but the Court varied
downward to the mandatory minimum.
makes two claims in his § 2255 motion. First, he argues
that in its amended judgment, this Court's imposition of
10 years of supervised release in addition to the 10 years of
imprisonment was substantively and procedurally unreasonable
because the term of supervised release should have been
reduced commensurately with the reduction of
imprisonment. Second, he maintains that he has been an
exemplary prisoner, and therefore any re-sentencing should
take his rehabilitation into account, relying upon Pepper
v. United States, 562 U.S. 476 (2011).
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 ...