United States District Court, E.D. Tennessee, Greeneville
RONNIE GREER UNITED STATES DISTRICT JUDGE
matter is before the Court on the “Motion Under 28
U.S.C. § 2255 To Vacate, Set Aside, Or Correct A
Sentence By A Person In Federal Custody, ” [Doc. 221],
filed by Justin Levon Bookwalter (“Bookwalter” or
“petitioner”). The United States has responded in
opposition, [Doc. 223], to which Bookwalter replied. [Doc.
226]. 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 DENIED.
Procedural and Factual Background
August 12, 2014, a sealed indictment was filed charging
Bookwalter and five co-defendants with conspiracy to
distribute and possess with the intent to distribute 280
grams or more of a mixture and substance containing a
detectable amount of cocaine base (“crack”) in
violation of Title 21 United States Code §§ 846,
841(a)(1) and (b)(1)(A). [Doc. 3]. On August 14, 2015, a plea
agreement was filed, [Doc. 121]. Bookwalter agreed to plead
guilty to the lesser included offense of Count One,
conspiracy to distribute and possess with the intent to
distribute 28 grams of “crack” cocaine.
[Id.]. Bookwalter's change of plea hearing was
held on August 27, 2015. [Doc. 130]. A Presentence
Investigation Report (“PSR”) was filed as to
Bookwalter on November 3, 2015. [Doc. 146]. A sentencing
hearing took place on March 30, 2016, during which Bookwalter
was sentenced to 96 months of imprisonment followed by a five
(5) year term of supervised release. [Doc. 192]. Bookwalter
did not file a direct appeal, but timely submitted this
motion to vacate on April 3, 2017. [Doc. 221].
Standard of Review This 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). 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 (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. 1978), 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. 1996), 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).
other than those of ineffective assistance of counsel are
procedurally defaulted if not raised on direct appeal.
Bousley v. United States, 523 U.S. 614, 621 (1998);
Peveler v. United States, 269 F.3d 693, 698 (6th
Cir. 2001). “In the case where the defendant has failed
to assert his claims on direct appeal and thus has
procedurally defaulted, in order to raise them in a §
2255 motion he also must show either that (1) he had good
cause for his failure to raise such arguments and he would
suffer prejudice if unable to proceed, or (2) he is actually
innocent.” Regalado v. United States, 334 F.3d
520, 528 (6th Cir. 2003). See also Bousley, 523 U.S.
at 622-23. This hurdle a petitioner faces to excuse
procedural default is “intentionally high[, ]…
for respect for the finality of judgments demands that
collateral attack generally not be allowed to do service for
an appeal.” Elzy v. United States, 205 F.3d
882, 884 (6th Cir. 2000).
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 F.2d 1073, 1081 (3rd
considering the first prong of the test set forth in
Strickland, the appropriate measure of attorney
performance is “reasonableness under prevailing
professional norms.” Strickland, 466 U.S. at
688. A defendant asserting a claim of ineffective assistance
of counsel must “identify the acts or omissions of
counsel that are alleged not to have been the result of
reasonable professional judgment.” Id. at 690.
The evaluation of the objective reasonableness of
counsel's performance must be made “from
counsel's perspective at the time of the alleged error
and in light of all the circumstances, and the standard of
review is highly deferential.” Kimmelman v.
Morrison, 477 U.S. 365, 381 (1986).
second prong of the Strickland test requires the
petitioner show counsel's deficient performance
prejudiced the defense. Thus, “[a]n error by counsel,
even if professionally unreasonable, does not warrant setting
aside the judgment of a criminal proceeding if the error had
no effect on the judgment.” Strickland, 466
U.S. at 691. The petitioner must show “there is a
reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different.” Id. at 694. The
Strickland Court emphasized both prongs must be
established in order to meet the claimant's burden, and
if either prong is not satisfied the claim must be rejected,
Although we have discussed the performance component of an
ineffectiveness claim prior to the prejudice component, there
is no reason for a court deciding an ineffective assistance
claim to approach the inquiry in the same order or even to
address both components of the inquiry if the defendant makes
an insufficient showing on one . . . . If it is easier to
dispose of an ineffectiveness claim on the ground of lack of
sufficient prejudice, which we expect will often be so, that
course should be followed. Courts should strive to ensure