United States District Court, E.D. Tennessee, Greeneville
RONNIE GREER UNITED STATES DISTRICT JUDGE
matter is before the Court on the “Motion To Vacate,
Set Aside, Or Correct Sentence Pursuant to Title 28 United
States Code Section 2255(f)(3), ” [Doc. 34],
filed by Todd Adam Rigney (“Rigney” or
“petitioner”) on June 27, 2016. The United States
has responded in opposition, [Doc. 38], and petitioner did
not reply within the thirty (30) day response period. The
matter is now ripe for disposition. 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 is necessary. For
the reasons which follow, the petitioner's § 2255
motion lacks merit, and the motion will be
Procedural and Factual Background
indictment was filed on January 14, 2014, [Doc. 1], charging
Rigney with distribution and receipt of child pornography in
violation of 18 U.S.C. §§ 2252A(a)(2) and (b)(1),
and possession of child pornography in violation of 18 U.S.C.
§§ 2252A(a)(5)(B) and (b)(2). On May 1, 2014, the
United States filed a Plea Agreement signed by the
petitioner, [Doc. 22], and the Court held a Change of Please
Hearing on May 19, 2014. The petitioner pled guilty to Count
One of the indictment: distribution of child pornography in
violation of 18 U.S.C. § 2252A(a)(2). A sentencing
hearing was held on September 8, 2014, and Rigney was
sentenced to 200 months of imprisonment with a life term of
supervised release, pursuant to his Rule 11(c)(1)(C) plea
agreement. [Doc. 31]. Judgment was entered on September 16,
2014, [Doc. 31], and was returned executed on November 12,
2014, [Doc. 33]. Petitioner did not appeal.
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 (6thCir.
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 (6thCir. 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
one-year statute of limitations applies to § 2255
motions, which begins to run on the latest of the following:
(1) the date on which the judgment of conviction becomes
(2) the date on which the impediment to making a motion
created by governmental action in violation of Constitution
or laws of the United States is removed …;
(3) the date on which the right asserted was initially
recognized by the Supreme Court, if that right has been newly
recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or
claims presented could have been discovered through the
exercise of due diligence.
28 U.S.C. § 2255 (f)(1)-(4). A judgment of conviction
becomes final at the conclusion of direct review, or when the
time to appeal expires. See Sanchez-Castellano v. United
States, 358 F.3d 424, 428 (6th Cir. 2004); Johnson
v. United States, 246 F.3d 655, 657 (6th Cir. 2001).
Rule 4(b)(1)(A) of the Federal Rules of Appellate Procedure
requires that notice of appeal in a criminal case should be
filed within 14 days of the entry of the judgment.
Sixth Amendment provides, in pertinent part, “[i]n all
criminal prosecutions, the accused shall enjoy the right . .
. to have the Assistance of Counsel for his defense.”
U.S. Const. amend. VI. A defendant has a Sixth Amendment
right not just to counsel, but to “reasonably effective
assistance” of counsel. Strickland v.
Washington, 466 U.S. 668, 687 (1984). In
Strickland, the Supreme Court set forth a
two-pronged test for evaluating claims of ineffective
assistance of counsel:
First, the defendant must show that counsel's performance
was deficient. This requires showing that counsel made errors
so serious that counsel was not functioning as the
“counsel” guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that the deficient
performance prejudiced the defense. This requires showing
that counsel's errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.
Unless a defendant makes both showings, it cannot be said
that the conviction . . . resulted from a breakdown in the
adversary process that renders the result unreliable.
Strickland 466 U.S. at 687. As with any other claim
under § 2255, the burden of proving ineffective
assistance of counsel is on the petitioner. Virgin
Islands v. Nicholas, 759 ...