United States District Court, M.D. Tennessee, Nashville Division
A. TRAUGER, U.S. DISTRICT JUDGE
before the court are the Petitioner's Motion To Vacate,
Set Aside, Or Correct Sentence In Accordance With 28 U.S.C.
§ 2255 (Docket No. 1); the Petitioner's Supplemental
Brief (Docket No. 7); the Government's Response (Docket
No. 8); the Petitioner's Response In Opposition To
Government's Request For Transfer To Sixth Circuit
(Docket No. 10); and the Government's Supplemental
Response (Docket No. 11). For the reasons set forth herein,
the Motion To Vacate, Set Aside, Or Correct Sentence In
Accordance With 28 U.S.C. § 2255 (Docket No. 1) is
DENIED, and this action is DISMISSED.
initial Response, the Government suggests that the court is
required to transfer this case to the Sixth Circuit as a
second or successive petition under 28 U.S.C. § 2255.
The Government contends that a post-sentencing motion filed
by the Petitioner in his underlying criminal cases (Docket
No. 55 in Case No. 3:08cr00250; Docket No. 26 in Case No.
3:10cr00026; Docket No. 27 in Case No. 3:10cr00033) should be
construed as his first petition.
Castro v. United States, 540 U.S. 375, 383, 124
S.Ct. 786, 792, 157 L.Ed.2d 778 (2003), the Supreme Court
held that when a district court recharacterizes a pro se
litigant's motion as a first petition under Section 2255,
it must “notify the pro se litigant that it intends to
recharacterize the pleading, warn the litigant that this
recharacterization means that any subsequent § 2255
motion will be subject to the restrictions on ‘second
or successive' motions, and provide the litigant an
opportunity to withdraw the motion or to amend it so that it
contains all the § 2255 claims he believes he
has.” The order denying the Petitioner's
post-sentencing motion in his underlying criminal cases,
entered by now-retired Judge Todd J. Campbell, did not
suggest that the motion was being recharacterized as a first
petition under Section 2255 (Docket No. 58 in Case No.
3:08cr00250; Docket No. 29 in Case No. 3:10cr00026; Docket
No. 30 in Case No. 3:10cr00033). The Government has not cited
to any other document in the record indicating that the
Petitioner's motion was recharacterized as a first
petition under Section 2255, or that the requirements of
Castro were otherwise satisfied. Accordingly, the
court denies the Government's request to construe
Petitioner's Motion To Vacate as a second or successive
petition and to transfer it to the Sixth Circuit.
part of a global settlement with the Government, the
Petitioner pled guilty to bank robbery in three separate
cases on April 20, 2010. (Docket Nos. 37, 38, 51 in Case No.
3:08cr00250; Docket Nos. 9, 10, 23 in Case No. 3:10cr00026;
Docket Nos. 10, 11, 24 in Case No. 3:10cr00033). Through the
Plea Agreement, the Petitioner acknowledged that he qualified
as a career offender, and the parties agreed to a total
sentence of 180 months of imprisonment. (Docket No. 51 in
Case No. 3:08cr00250; Docket No. 23 in Case No. 3:10cr00026;
Docket No. 24 in Case No. 3:10cr00033). At the subsequent
sentencing hearing, on August 12, 2010, Judge Campbell
sentenced the Petitioner to the agreed 180-month sentence.
(Docket Nos. 50, 52, 53 in Case No. 3:08cr00250; Docket Nos.
22, 24, 25 in Case No. 3:10cr00026; Docket Nos. 23, 25, 26 in
Case No. 3:10cr00033). The record indicates that no appeal
28 U.S.C. § 2255
Petitioner has brought this action pursuant to 28 U.S.C.
§ 2255. Section 2255 provides a statutory mechanism for
challenging the imposition of a federal sentence:
A prisoner in custody under sentence of a court established
by Act of Congress claiming the right to be released upon the
ground that the sentence was imposed in violation of the
Constitution or laws of the United States, or that the court
was without jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by law, or
is otherwise subject to collateral attack, may move the court
which imposed the sentence to vacate, set aside or correct
28 U.S.C. § 2255(a). In order to obtain relief under
Section 2255, a petitioner “‘must demonstrate the
existence of an error of constitutional magnitude which had a
substantial and injurious effect or influence on the guilty
plea or the jury's verdict.'” Humphress v.
United States, 398 F.3d 855, 858 (6th Cir. 2005)(quoting
Griffin v. United States, 330 F.3d 733, 736 (6th
factual dispute arises in a § 2255 proceeding, the court
is to hold an evidentiary hearing to resolve the dispute.
Ray v. United States, 721 F.3d 758, 761 (6th Cir.
2013). An evidentiary hearing is not required, however, if
the record conclusively shows that the petitioner is not
entitled to relief. 28 U.S.C. § 2255(b); Ray,
721 F.3d at 761; Arredondo v. United States, 178
F.3d 778, 782 (6th Cir. 1999). A hearing is also
unnecessary “if the petitioner's allegations
‘cannot be accepted as true because they are
contradicted by the record, inherently incredible, or
conclusions rather than statements of fact.'”
reviewed the pleadings, briefs, and records filed in the
Petitioner's underlying criminal case, as well as the
filings in this case, the court finds it unnecessary to hold
an evidentiary hearing because the records conclusively