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Pollard v. United States

United States District Court, M.D. Tennessee, Nashville Division

September 7, 2017

MONTERIUS POLLARD, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          WAVERLY D. CRENSHAW, JR CHIEF UNITED STATES DISTRICT JUDGE.

         I. Introduction

         Pending before the Court are the Petitioner's pro se Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence (Doc. No. 1); an Amended Motion To Vacate, Set Aside, Or Correct Sentence In Accordance With 28 U.S.C. § 2255 (Doc. No. 7), filed by counsel for the Petitioner; and the Government's Response (Doc. No. 8). By Order entered July 18, 2016 (Doc. No. 9), now-retired Judge John T. Nixon dismissed the Petitioner's claim regarding the constitutionality of 18 U.S.C. § 924(c)(3)(B), and stayed the Petitioner's claim regarding the sentence enhancement under Sentencing Guideline § 4B1.2 pending resolution of Beckles v. United States, 136 S.Ct. 2510 (2016). The case was subsequently randomly reassigned to the undersigned Judge.

         On March 6, 2017, the Supreme Court issued its decision in Beckles v. United States, ___U.S.___, 137 S.Ct. 886, 891, 197 L.Ed.2d 145 (2017). The Petitioner's remaining claim is now ripe for decision. For the reasons set forth herein, the Petitioner's Motions (Doc. Nos. 1, 7) are DENIED, and this action is DISMISSED.[1]

         II. Procedural and Factual Background

         In the underlying criminal case, the Petitioner pled guilty, before Judge Nixon, to participating in a conspiracy to commit Hobbs Act robbery and extortion, in violation of 18 U.S.C. § 1951; and possessing a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c). (Doc. Nos. 2223, 2304, 2305, 2943 in Case No. 3:09cr00240). Through the Plea Agreement, the Government agreed to dismiss the two remaining counts against the Petitioner, and the parties contemplated cooperation by the Petitioner potentially leading to a Government motion for a reduced sentence for substantial assistance. (Id.) At the subsequent sentencing hearing, on November 4, 2013, Judge Nixon granted the Government's motion for a substantial assistance reduction, and accepted the parties' recommendation that the Petitioner be sentenced to a total term of 180 months of imprisonment. (Doc. Nos. 2477, 2480, 2481, 2944 in Case No. 3:09cr00240). The record indicates that no appeal was taken.

         III. Analysis

         A. The Section 2255 Remedy

         28 U.S.C. Section 2255 provides federal prisoners with a statutory mechanism by which to seek to have their sentence vacated, set aside or corrected:

(a) 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 the sentence.

28 U.S.C. § 2255(a).

         In order to obtain relief under Section 2255, the petitioner must demonstrate constitutional error that had a “‘substantial and injurious effect or influence on the guilty plea or the jury's verdict.'” Hamblen v. United States, 591 F.3d 471, 473 (6th Cir. 2009)(quoting Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003)).

         The court should hold an evidentiary hearing in a Section 2255 proceeding where a factual dispute arises, unless the petitioner's allegations “‘cannot be accepted as true because they are contradicted by the record, inherently incredible, or [are] conclusions rather than statements of fact.'” Ray v. United States, 721 F.3d 758, 761 (6th Cir. 2013)(quoting Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999)). In addition, no hearing is required where “the record conclusively shows that the petitioner is entitled to no relief.” Arredondo, 178 F.3d at 782 (quoting Blanton v. United States, 94 F.3d 227, 235 (6th Cir. 1996)). See also Fifer v. United States, 660 Fed.Appx. 358, 359 (6th Cir. Aug. 22, 2016).

         Having reviewed the pleadings, briefs and records filed in Petitioner's underlying criminal case, as well as the pleadings, briefs and records filed in this case, the Court finds that it need not hold an evidentiary hearing in this case to resolve the Petitioner's claims. The record conclusively establishes ...


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