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Hinkle v. United States

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

July 22, 2019




         Before the Court is Petitioner Sherise Hinkle's pro se motion to vacate, set aside, or correct her sentence under 28 U.S.C. § 2255 [Doc. 1].[1] The United States responded in opposition to Petitioner's motion [Doc. 4]. Petitioner did not reply to the Government's response. The Court finds the materials thus submitted, together with the record of the underlying criminal case, conclusively show that Petitioner is not entitled to relief on the claims asserted in her motion. Accordingly, the Court will decide this matter without an evidentiary hearing. See United States v. Todaro, 982 F.2d 1025, 1028 (6th Cir. 1993).

         For the reasons discussed below, the Court will find that Petitioner's § 2255 motion is without merit and, thus, will DENY and DISMISS the motion WITH PREJUDICE.


         Petitioner was charged in count one of a one-count information with conspiracy to distribute and possession with the intent to distribute 50 grams or more of methamphetamine, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A) [Docs. 4, 10, No. 2:15-CR-66]. On June 12, 2015, Petitioner agreed to plead guilty, pursuant to a negotiated plea agreement, to the methamphetamine conspiracy as charged in the information [Doc. 5, No. 2:15-CR-66]. As a factual basis for her plea, Petitioner stipulated to the following additional facts:

         The drug-trafficking conspiracy involved more than 50 grams of actual methamphetamine [Doc. 5 at 2, No. 2:15-CR-66]. The scheme operated by means of co-conspirators traveling from Northeast Tennessee to areas surrounding Atlanta, Georgia, to obtain methamphetamine and transporting the methamphetamine back to Northeast Tennessee [Id.]. The methamphetamine then would be distributed to others, including methamphetamine users and indicted and unindicted co-conspirators [Id.]. For her part in the conspiracy, Petitioner made multiple trips to Georgia, alone and with co-conspirators, to obtain methamphetamine from several sources, and she was aware that co-conspirators shared a common source of supply in Georgia [Id. at 3]. At one point, Petitioner assumed a significant role in the conspiracy and “fronted” or sold methamphetamine on two occasions in May, 2014, to a confidential informant. A few days after the first transaction, Petitioner facilitated payment for drugs she provided to the confidential informant by receiving the funds on her Green Dot card [Id. at 3].

         Officers, who were looking for a coconspirator on an outstanding warrant, found him hiding in Petitioner's residence. A subsequent search of the residence yielded 64 grams of methamphetamine that was intended for resale and two handguns [Id.]. Petitioner acknowledged that she should be held responsible for more than 500 grams but less than 1.5 kilograms of actual methamphetamine. Petitioner also agreed that a two-level enhancement for possession of a dangerous weapon or firearm under U.S.S.G. § 2D1.1(b)(1) should apply to her [Id.].

         On June 22, 2015, ten days after the filing of the plea agreement, Petitioner pled guilty to the methamphetamine conspiracy [Doc. 10, Minute Entry, No. 2:15-CR-66]. Thereafter, the United States Probation Office issued a Presentence Investigation Report (“PSR”) to assist the Court in sentencing Petitioner [Doc. 21, PSR (sealed), No. 2:15-CR-66].

         Using the quantity of drugs involved in the offense of at least 500 grams but less than 1.5 kilograms of actual methamphetamine, the probation officer who prepared the PSR determined that Petitioner's base offense level was 34 [Id. at ¶ 19]. A two-level enhancement for possession of a dangerous weapon, to which the parties had agreed, resulted in an adjusted offense level of 36 [Id. at ¶¶ 20, 24]. A three-level reduction for acceptance of responsibility decreased her total offense level to 33, which, along with a criminal history category of I, yielded an advisory Guidelines range of 135 to 168 months [Id. at ¶¶ 26-27, 34, 64]. Neither party objected to the PSR [Docs. 22, 25, No. 2:15-CR-66].

         Based on Petitioner's substantial assistance to the government, the Court imposed a 102-month term of imprisonment-below Petitioner's guidelines range and her 120-month statutory mandatory minimum sentence -and a 5-year term of supervised release [Doc. 21, PSR ¶ 60, Doc. 36 (Judgment), Doc. 37 (Statement of Reasons) (sealed), No. 2:15-CR-66]. Petitioner did not file a direct appeal, consonant with the appeal-waiver provision in the plea agreement [Doc. 5, ¶9(a), No. 2:15-CR-66]. Instead, she submitted this timely pro se § 2255 motion to vacate [Doc. 1].


         To obtain relief under 28 U.S.C. § 2255, a petitioner must demonstrate “(1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law . . . so fundamental as to render the entire proceeding invalid.” Short v. United States, 471 F.3d 686, 691 (6th Cir. 2006) (quoting Mallett v. United States, 334 F.3d 491, 496-97 (6th Cir. 2003)). 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); Jefferson v. United States, 730 F.3d 537, 549 (6th Cir. 2013) (applying Brecht test to § 2255 motion).

         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 that violated due process. Reed v. Farley, 512 U.S. 339, 354 (1994); Riggs v. United States, 209 F.3d 828, 831 (6th Cir. 2000). A petitioner “must clear a significantly higher hurdle than would exist on direct appeal” to secure collateral relief. United States v. Frady, 456 U.S. 152, 166 (1982); Regalado v. United States, 334 F.3d 520, 528 (6th Cir. 2003) (citing Frady, 456 U.S. at 166).

         When a petitioner files a § 2255 motion, she must set forth facts which entitle her 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).

         Claims 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 h[er] claims on direct appeal and thus has procedurally defaulted, in order to raise them in a § 2255 motion [s]he also must show either that (1) [s]he had good cause for h[er]failure to raise such arguments and [s]he would suffer prejudice if unable to proceed, or (2) [s]he is actually innocent.” Regalado, 334 F.3d at 528 [alterations added]; see also Bousley, 523 U.S. at 622-23. The hurdle a petitioner faces to overcome a 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).


         A. Waiver

         Respondent first relies on the plea agreement to assert that Petitioner has waived her right to file this § 2255 motion. As noted earlier in this opinion, in paragraph 9(b) in the plea agreement [Doc. 5, No. 2:15-CR-66], Petitioner waived her right to file a motion to vacate, except as to claims of ineffective assistance and prosecutorial misconduct. It is well recognized that a party may waive a provision intended for her benefit in a contract or statute. Shutte v. Thompson, 82 U.S. 151, 21 L.Ed. 123, 15 Wall. 151 (1872). Even fundamental constitutional rights may be waived, and the waiver is enforceable if it is made knowingly and voluntarily. “[A] defendant's informed and voluntary waiver of the right to collaterally attack a conviction and sentence is enforceable.” In re Acosta, 480 F.3d 421, 422 (6th Cir. 2007); accord Davila v. United States, 258 F.3d 448, 450-52 (6th Cir. 2001); Watson ...

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