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Gudger v. United States

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

July 7, 2017

WILLIAM BIRCH GUDGER, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER

          RONNIE GREER UNITED STATES DISTRICT JUDGE

         William 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].[1] The government has responded in opposition, [Doc. 55], petitioner has replied, [Docs. 60, 61], [2] 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.

         I. Factual and Procedural Background

         Petitioner 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), [Doc.l6].

         On 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, [3] [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.

         II. 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, 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).

         III. Analysis

         In his § 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 counts.

         A. Waiver

         As 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.

         Petitioner 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 ...


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