United States District Court, E.D. Tennessee, Greeneville
MEMORANDUM OPINION AND ORDER
GREER UNITED STATES DISTRICT JUDGE
Birch Gudger, petitioner, a federal prisoner, has filed a
“Motion Under 28 U.S.C. § 2255 To Vacate, Set
Aside, or Correct Sentence By a Person In Federal Custody,
” [Doc. 53]. The government has responded in
opposition, [Doc. 55], petitioner has replied, [Docs. 60,
61],  and the matter is ripe for disposition.
Also pending before the Court is Gudger's request for a
final disposition of his § 2255 motion, [Doc. 67]. The
motion for final disposition is GRANTED. The Court has
determined that the files and records in the case
conclusively establish that the petitioner is not entitled to
relief under § 2255 and, therefore, no evidentiary
hearing or the appointment of counsel is necessary. For the
reasons which follow, petitioner's § 2255 motion
lacks merit, the motion will be DENIED, and the § 2255
case DISMISSED WITH PREJUDICE.
Factual and Procedural Background
and Misty Lee Millar were indicted by a federal grand jury on
August 13, 2013, [Doc. 3]. Petitioner and Millar were charged
in Count 1 with conspiracy to distribute and possess with
intent to distribute 280 grams or more of cocaine base
(“crack”) in violation of 21 U.S.C. §§
846 and 841; in Count 2 with aiding and abetting each other
in the possession of 28 grams or more of cocaine base
(“crack”) with intent to distribute in violation
of 21 U.S.C. § 841(a)(1) and (b)(1)(B), and in Count 5
with use of a communication facility in connection with the
conspiracy charged in Count 1 in violation of 21 U.S.C.
§ 843(b). Gudger was charged in Count 4 with possession
of a firearm by a convicted felon in violation of 18 U.S.C.
§ 922(g)(1) and in Count 6 with distribution of cocaine
base in violation of 21 U.S.C. § 841(a)(1).
[Id.]. On August 29, 2013, the United States filed
an information pursuant to 21 U.S.C. § 851(a)(1) giving
notice of its intention to seek increased punishment by
reason of a conviction on January 14, 2000, in the Criminal
Court for Greene County, Tennessee in case No. 99-CR-139B for
the offense of facilitation of the sale of one-half gram or
more of a Scheduled II controlled substance (cocaine),
October 1, 2013, Gudger signed a Rule 11(c)(1)(C) plea
agreement, [Doc. 22], agreeing to plead guilty to the lesser
included offense charged in Count 1, i.e,,
conspiracy to distribute and possess with intent to
distribute 28 grams or more of cocaine base. In the
agreement, petitioner admitted to acquiring a significant
amount of powder and crack cocaine over a period of five or
six years. [Id. at ¶ 4(g)]. He cooked the
powder cocaine into crack at his residence at 145 Midway
Railroad Street, Greeneville, Tennessee. [Id.].
Petitioner also admitted the prior conviction referenced in
the government's § 851 notice [Id. at
¶ 4(1)]. The plea agreement stated that petitioner
“knowingly and voluntarily waive[d] the right to file
any motions or pleadings pursuant to 28 U.S.C. §
2255” with the sole exception of “claims of
ineffective assistance of counsel or prosecutorial misconduct
. . .” [Id. at 11]. Gudger's guilty plea
was accepted and his plea agreement taken under advisement on
October 22, 2013, [Doc. 26]. On March 24, 2014, Gudger's
plea agreement was accepted by the Court and he was sentenced
to the agreed upon 125 months of imprisonment,  [Doc. 149].
Judgment was entered on March 28, 2014, [Doc. 50], and no
appeal of the Court's judgment was taken to the Sixth
Circuit Court of Appeals. The instant § 2255 motion was
timely filed on November 20, 2014.
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 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).
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, 72 F.3d 503, 506 (6th Cir.), cert.
denied, 517 U.S. 1200 (1996). In order to obtain collateral
relief under § 2255, a petitioner must clear a
significantly higher hurdle than would exist on direct
appeal. United States v. Frady, 456 U.S. 152 (1982).
§ 2255 motion, petitioner raises three grounds for
relief: (1) petitioner was not subject to an enhanced
sentence because his conviction for facilitation of the sale
of cocaine is not a qualifying prior drug conviction; (2) the
Court engaged in unconstitutional judicial factfinding; and
(3) 21 U.S.C. § 841(a) is unconstitutional because it
does not have a penalty provision. The United States argues
in response that Gudger's claims are barred by the waiver
of his right to file a § 2255 motion in the plea
agreement, have been procedurally defaulted, and are also
meritless. The Court agrees with the government on all
noted above, Gudger waived his right to file a § 2255
motion, except that he retained the right to file such a
motion as to “claims of ineffective assistance of
counsel or prosecutorial misconduct not known to the
defendant by the time of the entry of judgment.” [Doc.
22 at ¶ 11(b)]. Petitioner does not allege any
ineffective assistance of counsel in his § 2255 motion.
He attempts to avoid the bar of the waiver, however, by
arguing that “he has not waived a right to challenge
the fact that an error of constitutional magnitude has
occurred and that a complete miscarriage of justice or an
egregious error violative of due process stands.” [Doc.
60 at 1-2]. Errors resulting in a miscarriage of justice, as
described by law, are, according to Gudger, beyond the scope
of the waiver provision.
is incorrect. As the Sixth Circuit recently stated:
“[A] defendant's waiver of his right to challenge
his conviction and sentence under § 2255 is enforceable
when it is entered into ‘knowingly, intelligently, and
voluntarily.'” In re Garner, 654 F.Appx.
441 (6th Cir. 2016) (citing Davila v. United
States, 258 F.3d 448, 451 (6th Cir.
2001); In re Acosta, 480 F.3d 421, 422
(6th Cir. 2007)). This is true even if a later
favorable change in the law has occurred. “[W]here
developments in the law later expand a right that a defendant
has waived in a plea agreement, the change in the law does
not suddenly make the plea involuntary or unknowing or