United States District Court, E.D. Tennessee, Knoxville
MEMORANDUM AND ORDER
W. PHILLIPS SENIOR UNITED STATES DISTRICT JUDGE.
Corona (“petitioner”) has filed a motion to
vacate, set aside or correct his sentence pursuant to 28
U.S.C. § 2255; or in the alternative for Coram
Nobis relief, or in the alternative for a new trial
under F.R.Cr.P 33 [Doc. 592].
and two co-defendants, Dennis Richardson and Jermaine Hughes,
were indicted in 2005 for various drug and related offenses,
including a conspiracy to distribute and to possess with the
intent to distribute cocaine and marijuana. Richardson and
Hughes ultimately entered into plea agreements with the
United States, but petitioner opted for a trial.
Following a 9-day jury trial, petitioner was convicted of
conspiring to distribute and to possess with the intent to
distribute 5 or more kilograms of cocaine and a quantity of
marijuana; conspiring to commit money laundering; and three
counts of distributing more than 5 kilograms of
cocaine. Because of the quantity of cocaine
involved and two prior felony drug convictions, petitioner
was sentenced to a mandatory life sentence. The Sixth Circuit
Court of Appeals affirmed both his conviction and
sentence. Petitioner's request that the Supreme
Court issue a writ of certiorari was denied in February
petitioner's trial, Richardson and Hughes testified that
petitioner supplied them with both cocaine and marijuana for
distribution. Additionally, Richard Robinson and his wife
Kimberly also testified that petitioner supplied Robinson
with cocaine for distribution. Petitioner's motion makes a
single claim: that one of those witnesses, Dennis Richardson,
has recanted his trial testimony to the extent that he now
says that petitioner supplied him with only marijuana, never
cocaine. He requests that he be granted an evidentiary
hearing at which Richardson presumably will testify
consistently with his recantation.
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).
matters can be disposed of quickly. First, the government
asserts that petitioner's motion is untimely, pointing
out that his application for the writ of certiorari was
denied in February 2013, and he filed his motion in November
2014, much more than the one-year allowed by 28 U.S.C. §
2255 (f). However, § 2255(f)(4) recites that the
one-year period begins to run from the latest of “the
date on which the facts supporting the claim or claims
presented could have been discovered through the exercise of
due diligence.” Petitioner states in his motion that
his attorney received an “unsolicited” phone call
from Dennis Richardson on November 18, 2013 in which
Richardson for the first time recanted his trial testimony.
Assuming that to be true for the moment, petitioner had until
November 18, 2014 in which to file his motion. He filed it on
November 13, 2014. The motion is timely.
petitioner's alternative request for a Writ of Error
Coram Nobis is denied. Resort to Coram
Nobis cannot be had when a motion under 28 U.S.C. §
2255 is available: “Morgan teaches that a
writ of error coram nobis may sometimes be used to
vacate a federal conviction after the petitioner has already
served his sentence and relief under 28 U.S.C. §
2255 is unavailable.” U.S. v. Johnson,
237 F.3d. 741, 753 (6th Cir. 2001) [emphasis supplied.] As
this court has just held in the paragraph preceding, §
2255 is available to petitioner, from which it follows that
Coram Nobis is not.
petitioner's motion for a new trial under F.R.Cr.P. 33 is