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Killian v. United States

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

March 26, 2018

JAMES M. KILLIAN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          Magistrate Judge Christopher H. Steger

          MEMORANDUM OPINION

          TRAVIS R. MCDONOUGH UNITED STATES DISTRICT JUDGE

         James M. Killian (“Petitioner”), a federal prisoner, timely filed a pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (the “2255 Motion”) on November 13, 2014 [Doc. 30].[1] The government has responded [Doc. 32], and Petitioner has replied [Doc. 33]. For the reasons stated herein, the Court finds the 2255 Motion is procedurally defaulted. For that reason, the 2255 Motion shall be DENIED.

          I. STANDARDS

         A. Threshold Standard

          Under 28 U.S.C. § 2255(a), a federal prisoner may make a motion to vacate, set aside, or correct his judgment of conviction and sentence if he claims that the sentence was imposed in violation of the Constitution or laws of the United States; or that the court lacked jurisdiction to impose the sentence; or that the sentence is in excess of the maximum authorized by law, or is otherwise subject to collateral attack. As a threshold standard, to obtain post-conviction relief under Section 2255, a motion must allege: (1) an error of constitutional magnitude; (2) a sentence imposed outside the federal statutory limits; or (3) an error of fact or law so fundamental as to render the entire criminal proceeding invalid. Mallett v. United States, 334 F.3d 491, 496-97 (6th Cir. 2003); Moss v. United States, 323 F.3d 445, 454 (6th Cir. 2003).

         A petitioner bears the burden of demonstrating an error of constitutional magnitude which had a substantial and injurious effect or influence on the criminal proceedings. Reed v. Farley, 512 U.S. 339, 353 (1994); Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993). In order to obtain collateral relief under Section 2255, a petitioner must clear a significantly higher hurdle than would exist on direct appeal. United States v. Frady, 456 U.S. 152 (1982).

         Rule 4(b) of the Rules Governing Section 2255 Proceedings in the United States District Courts requires a district court to summarily dismiss a Section 2255 motion if “it plainly appears from the face of the motion, the attached exhibits, and the record of the prior proceedings that the movant is not entitled to relief.” See also Pettigrew v. United States, 480 F.2d 681, 684 (6th Cir. 1973) (“A motion to vacate sentence under § 2255 can be denied for the reason that it states ‘only bald legal conclusions with no supporting factual allegations.'” (quoting Sanders v. United States, 373 U.S. 1, 19 (1963))). If the motion is not summarily dismissed under Rule 4(b), Rule 8 requires the court to determine, after a review of the answer and the records of the case, whether an evidentiary hearing is required. If a petitioner presents a factual dispute, then “the habeas court must hold an evidentiary hearing to determine the truth of the petitioner's claims.” Huff v. United States, 734 F.3d 600, 607 (6th Cir. 2013) (quoting Valentine v. United States, 488 F.3d 325, 333 (6th Cir. 2007)). An evidentiary hearing is not required “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.” Valentine, 488 F.3d at 333 (quoting Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999)).

         B. Procedural Default

         Generally, a federal prisoner is procedurally barred from raising on collateral review a claim he did not raise on direct appeal unless that claim is ineffective assistance of counsel under the Sixth Amendment. Bousley v. United States, 523 U.S. 614, 621 (1998); Peveler v. United States, 269 F.3d 693, 698 (6th Cir. 2001); Elzy v. United States, 205 F.3d 882, 884 (6th Cir. 2000). A procedurally defaulted claim may be considered on collateral review if the petitioner can show: (1) cause for failure to raise the claim on direct appeal; and (2) actual prejudice resulting from the alleged violation. Bousely, 523 U.S. at 622; Peveler, 269 F.3d at 698-700; Elzy, 205 F.3d at 884. If the petitioner fails to show cause, then it is not necessary to consider whether petitioner suffered prejudice. Bousely, 523 U.S. at 623. Ineffective assistance of counsel is considered “cause” for failure to raise an issue on direct appeal. See Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000); Ratcliff v. United States, 999 F.2d 1023, 1026 (6th Cir. 1993); Elzy, 205 F.3d at 884.

         A petitioner may be able to obtain review of his claims even if he is unable to show cause and prejudice. In that circumstance, review would only occur if petitioner's case fits within a narrow class of cases permitting review for the purpose of preventing a fundamental miscarriage of justice. A concrete example of such miscarriage of justice would be submission of new evidence showing that a constitutional violation probably resulted in a conviction of one who is actually innocent. Bousley, 523 U.S. at 622-23 (citing Murray v. Carrier, 477 U.S. 478, 495-96 (1986)); see also Peveler, 269 F.3d at 698.

         II. FACTS

         On September 12, 2013, pursuant to a plea agreement, Petitioner pleaded guilty to one count of operating an illegal gambling business in violation of 18 U.S.C. § 1955. The plea agreement did not contain a waiver of direct or collateral appellate review [Doc. 11, Plea Agreement]. On January 9, 2014, Petitioner was sentenced to six months of imprisonment and two years of supervised release, with twelve months of supervised released to be served under home confinement [Doc. 22, Minute Entry for Sentencing Hearing]. Judgment was entered on January 31, 2014 [Doc. 25, Judgment]. In addition to his sentence and supervised release, he was fined $30, 000.00 [Id.]. Petitioner served his term of imprisonment and was subsequently released from supervision by the United States Probation Services on January 8, 2017.

         III. ...


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