The opinion of the court was delivered by: S. Arthur Spiegel United States Senior District Judge
This matter is before the Court on the Petitioner Tommy Howard's ("Petitioner") Motion to Vacate Under 28 U.S.C. § 2255 (doc. 47), the Government's Response thereto (doc. 51), and Petitioner's Brief in Support (doc. 52). Petitioner filed simultaneously with his Motion to Vacate a Motion for Leave to File Delayed Brief in Support of that Motion (doc. 48). The Court granted his Motion for Leave to File Delayed Brief on April 18, 2006, and ordered Petitioner to file the brief in support within fourteen days (doc. 50). Petitioner did not file his Brief in Support during this period, but filed it some two months later (doc. 52) In the interest of justice, the Court will review his arguments, although untimely filed.
For the reasons indicated herein, the Court DENIES Petitioner Howard's Motion to Vacate Under 28 U.S.C. § 2255.
On April 7, 2003 the Cincinnati Police Department ("CPD")stopped Petitioner for a traffic violation (doc. 23). Petitioner did not have a valid driver's license, but possessed a temporary driver's permit (Id.). No licensed driver accompanied him in the car as required by Ohio law (Id.). Petitioner granted the request of the CPD to search his vehicle (Id.). The officers found a semi-automatic handgun underneath the driver's seat (Id.). Upon discovery of the weapon, Petitioner attempted to flee on foot from the officers (Id.). After a short chase, the officers apprehended Petitioner and the CPD continued its search of the automobile (Id.). The officers discovered powder cocaine, a digital scale, bags of marijuana, and several empty plastic baggies (Id.). The officers gave Petitioner the Miranda warnings and questioned him. Petitioner claimed that he found the guns and drugs in a bag on a neighboring street (Id.).
The government charged Petitioner with possession of ammunition by a convicted felon in violation of 18 U.S.C. § 922(g)(1), possession with the intent to distribute cocaine in violation of 21 U.S.C. § 841, and possession of a firearm during a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1) (Id.). Ultimately, a federal grand jury issued a four count indictment alleging: (1) possession of ammunition by a convicted felon in violation of 18 U.S.C. § 922(g)(1); (2) possession with the intent to distribute cocaine in violation of 21 U.S.C. § 841; (3) possession with the intent to distribute marijuana in violation of 21 U.S.C. § 841; and (4) possession of a firearm during a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1) (Id.). Petitioner entered a plea of guilty to Count Four, pursuant to a plea agreement (Id.). During his plea colloquy, Petitioner admitted carrying the firearm and possession of the narcotics (Id.).
The Court sentenced Petitioner to 292 months, five years supervised released, a $100.00 general assessment, and a $1,000.00 fine (Id.). Petitioner appealed this sentence; his direct appeal was denied (Id.).
II. Petitioner'S 28 U.S.C. § 2255 MOTION
Petitioner's 28 U.S.C. § 2255 Motion (doc. 47) and supporting brief (doc. 52) assert three grounds for relief. First, Petitioner claims that his Fifth Amendment right to be held to answer only for charges levied by the grand jury's indictment was violated when he was convicted of the "use" of a weapon, while he was indicted on a "possession" charge by the grand jury (doc. 52). Second, Petitioner charges that his guilty plea is unconstitutional because there was not an adequate factual basis to sustain a "use" conviction under 18 U.S.C. § 924(c) and that because he was unaware of this fact, his plea was involuntary (Id.). Finally, Petitioner alleges that because he was allowed to enter a guilty plea that he claims was both (1) for a crime for which he was not indicted and (2) did not have an adequate factual basis for conviction, his Fifth and Sixth Amendments rights to effective assistance of counsel were violated (Id.).
This matter falls within the scope of well-established precedent governing Habeas review. In Bousley v. United States, 523 U.S. 614, 621 (1998), the Supreme Court indicated:
We have strictly limited the circumstances under which a guilty plea may be attacked on collateral review. It is well settled that a voluntary and intelligent plea of guilty made by an accused person, who has been advised by competent counsel, may not be collaterally attacked.
Petitioner did not raise the current issues on direct appeal, and therefore to seek relief he must show cause and prejudice or actual innocence. Peveler v. United States, 269 F.3d 693 (6th Cir. 2001). For the following reasons, this Court finds each of Petitioner's claims without merit, and thus finds that he fails to make the ...