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Carter v. United States

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

May 17, 2017

WILLIE STEVEN CARTER, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER

          J. RONNIE GREER UNITED STATES DISTRICT JUDGE.

         Willie Steven Carter (“petitioner”) has filed a motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255, [Doc. 357][1], which he has moved to amend, [Doc. 375].

         Background

         Petitioner was charged in Count One of a second superseding indictment with conspiring to distribute and to possess with the intent to distribute 280 or more grams of cocaine base (“crack”); in Count Two with conspiring to distribute and to possess with the intent to distribute five kilograms or more of cocaine; and in eight other counts with various drug distribution and gun offenses.[2] Since petitioner had two prior felony drug convictions, [3] a conviction of Count One would have resulted in a mandatory life sentence, 21 U.S.C. § 841(b)(1)(A).

         Attorney James Countiss was appointed to represent petitioner. After attorney Countiss filed a number of pretrial motions, and after the Court denied petitioner's pro se motion that Mr. Countiss be discharged, [4] petitioner and the government entered into a plea agreement[5] under which petitioner pled guilty to the lesser included offense related to Count One, viz., the distribution and possession with the intent to distribute 28 grams of crack cocaine, for which the base punishment was a minimum mandatory five years to a maximum of 40. However, since petitioner had at least one prior felony drug conviction, the statutory penalty was enhanced to a minimum mandatory ten years up to a maximum of life, 21 U.S.C. § 841(b)(1)(B).

         Petitioner admitted in the plea agreement that he was responsible for more than 28 grams, but less than 280 grams, of crack cocaine.[6] He waived his right to a direct appeal except for a claim that his sentence exceeded the greater of the minimum mandatory sentence or his guideline range, and he also waived his right to collaterally attack his conviction or sentence except for claims of prosecutorial misconduct or ineffective assistance of counsel unknown to him at the time judgment was entered.

         Petitioner's guideline range was 262 to 327 months.[7] After a lengthy sentencing hearing, the Court varied downwardly from the guideline range, sentencing petitioner to 216 months.[8]

         Petitioner's Claims

         In his original motion, [Doc. 357], petitioner advances three separate claims that his attorney rendered ineffective assistance of counsel:

(1) for failing to obtain a mental evaluation of petitioner, notwithstanding that petitioner told attorney Countiss that he had “a predispositional diminished mental capacity, ” thereby depriving petitioner of the opportunity to receive a lesser sentence due to his diminished mental capacity;
(2) for failing to inform petitioner of the mens rea element of the offense to which he pled guilty, and for failing to discuss with him any possible “affirmative defenses” that could have negated his culpability; and
(3) for failing to explain to petitioner the possibility of seeking a writ of certiorari from the United States Supreme Court after his appeal was dismissed by the Sixth Circuit Court of Appeals.

         In a motion to amend his pending §2255 motion, [Doc. 375], petitioner claims that his Sixth Amendment right to a jury trial was violated because the Court made certain findings of fact that increased his mandatory minimum sentence, citing Alleyne v. United States, 133 S.Ct. 2151 (2013) and Descamps v. United States, 133 S.Ct. 2276 (2013), in support of that argument. He also argues that two of his prior convictions that served to classify him as a career offender were not “crimes of violence” and therefore were improperly used to qualify him as a career offender.[9]

         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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