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Morris v. United States

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

May 9, 2017

MICHAEL MORRIS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM AND ORDER

          Leon Jordan United States District Judge.

         Michael 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.

         I. Background

         In a 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.[1]

         On 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.[2]

         As shown by the government's notice filed pursuant to 21 U.S.C. § 851, petitioner had two prior felony drug convictions.[3] 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.].

         The government later amended its § 851 notice to the extent that it sought an enhanced sentence based on only one prior felony drug conviction.[4] 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.

         Petitioner's sentencing range under the 2008 version of the United States Sentencing Guidelines was 135 to 168 months' imprisonment.[5] However, as required by statute, the Court sentenced him to the mandatory minimum 240 months of imprisonment, as well as ten years on supervised release.[6]

         As a 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.[7] Petitioner's guideline range remained 135 to 168 months of imprisonment, but the Court varied downward to the mandatory minimum.

         II. Petitioner's Motion

         Petitioner 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.[8] 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).

         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 ...


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