United States District Court, E.D. Tennessee, Greeneville
RONNIE GREER UNITED STATES DISTRICT JUDGE.
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]. 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).
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.
PROCEDURAL AND FACTUAL BACKGROUND
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:
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].
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.].
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.
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].
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].
STANDARD OF REVIEW
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).
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).
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).
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).
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 ...