United States District Court, N.D. Ohio, Eastern Division
SARA LIOI, UNITED STATES DISTRICT JUDGE
the Court is the motion of petitioner Steven Pumper
(“petitioner” or “Pumper”) to vacate,
set aside, or correct his sentence pursuant to 28 U.S.C.
§ 2255. (Doc. No. 30 [“Mot.”].) Respondent
United States of America (“respondent” or
“government”) opposes the motion (Doc. No. 32
[“Opp'n”]), and petitioner has filed a reply.
(Doc. No. 33 [“Reply”].) For all of the foregoing
reasons, petitioner's motion is denied as time-barred.
2007, the Federal Bureau of Investigation launched a
large-scale, multi-year probe into potential public
corruption in Cuyahoga County, Ohio. The focus of the
investigation was allegations that one of the county's
three commissioners, James Dimora, along with the county
auditor, Frank Russo, had orchestrated a conspiracy whereby
the two men would benefit themselves, their
co-conspirator's and their designees, by using the power
and authority of their public offices to elicit monetary and
in-kind bribes in exchange for public contracts and
employment with the County.
a local contractor whose company received county building
contracts, was one of the first individuals approached by the
FBI, and one of the first to agree to cooperate with
authorities. As part of his cooperation, petitioner
participated in several proffer sessions with attorneys from
the Office of the United States Attorney for the Northern
District of Ohio. These sessions were governed by a proffer
agreement, dated October 10, 2008, which provided, in
[N]o statements made or other information provided by
[Pumper] during the proffer will be used directly against him
in any criminal trial, unless it involves the commission of a
crime of violence or a prosecution for perjury, making false
statements or obstruction of justice. [Also], the government
may make derivative use of any statement or information, and
may pursue any investigation leads suggested by any statement
or information, provided by [Pumper]. This provision is
necessary in order to eliminate the necessity for a
Kastigar hearing at which the government would have
to prove that the evidence it would introduce at trial is not
tainted by any statements made by or other information
provided by [Pumper] during the proffer.
(Doc. No. 30-9 (Proffer Letter) at 442.) Despite the fact
that he signed the agreement, petitioner claims to
“have no idea of [the] contents.” (Mot. at 396.)
17, 2009, pursuant to the terms of a plea agreement,
petitioner entered a plea of guilty to Counts 1-9 of an
Information charging petitioner with conspiracy to commit
bribery and bribery concerning programs receiving federal
funds, conspiracy to obstruct and obstruction of justice,
making materially false statements to law enforcement,
structuring, and mail fraud and honest services mail fraud.
(Doc. No. 1 (Information); Doc. No. 8 (Plea Agreement); Doc.
No. 5 (Minutes of Guilty Plea Hearing).) The plea agreement
contained an express provision waiving the right to bring a
direct appeal or to initiate post-conviction proceedings,
“including a proceeding under 28 U.S.C. §
2255.” (Plea Agreement at 55.) Pumper further agreed
“not to oppose any request of the United States that
his sentencing be postponed until [Pumper's] cooperation
is completed. [Pumper] knowingly waives any rights he may
have under the Speedy Trial Act, 18 U.S.C. §
3161.” (Id. at 63.) The government, in turn,
agreed to entertain any request by petitioner to schedule his
sentencing hearing prior to completing his cooperation.
parties' request, the Court agreed to defer sentencing
until Pumper had competed his cooperation. (Minutes of Guilty
Plea Hearing at 42.) On January 21, 2011, the matter was
reassigned to the undersigned, and petitioner's
sentencing was set for June 25, 2012. (Doc. No. 15 (Notice of
Sentencing Hearing).) At the government's request, the
date was continued to permit petitioner to continue to
provide assistance to the government and to allow him to
testify at the trials of certain co-conspirators. On December
4, 2013, petitioner was sentenced to a term of 97 months of
imprisonment, which represented a low-end guideline sentence
that was in accordance with the plea agreement, including the
recommended 3-level downward departure for his cooperation.
(Doc. No. 23 (Judgment).)
did not take a direct appeal, but on March 8, 2016, he filed
the present motion under 28 U.S.C. § 2255 to vacate his
sentence. The primary contention in his petition is his
belief that information he provided in his proffer was
impermissibly used to charge him. He also claims that he was
deprived of his right to a speedy trial by virtue of the
delay in sentencing, and deprived the effective assistance of
counsel, purportedly resulting from his counsel's
representation that petitioner had waived his right to an
appeal. Petitioner also maintains that the Court erred in
enhancing his sentence. He requests an evidentiary hearing.
Petitioner's Motion to Vacate Under § 2255
Standard of Review
federal prisoner may attack the validity of his sentence by
filing a motion to vacate, set aside, or correct the sentence
under 28 U.S.C. § 2255 in the district court where he
was sentenced. Section 2255 sets forth four grounds upon
which a federal prisoner may state a claim for relief:
“ the sentence was imposed in violation of the
Constitution or laws of the United States, or  that the
court was without jurisdiction to impose such sentence, or
 that the sentence was in excess of the maximum authorized
by law, or  [the sentence] is otherwise subject to
collateral attack[.]” 28 U.S.C. § 2255(a).
criminal defendant may not utilize a § 2255 motion as a
substitute for a direct appeal. Regalado v. United
States, 334 F.3d 520, 528 (6th Cir. 2003); Capaldi
v. Pontesso, 135 F.3d 1122, 1124 (6th Cir. 1998)
(“An application under § 2255 . . . should not be
considered a substitute for direct appeal.”); see
Brecht v. Abrahamson, 507 U.S. 619, 637-38, 113 S.Ct.
1710, 123 L.Ed.2d 353 (1993); Watson v. United
States, 165 F.3d 486, 488 (6th Cir. 1999). To assert a
claim not raised on direct appeal, a petitioner ordinarily
must show cause for the default and prejudice. See
Bousley v. United States, 523 U.S. 614, 622, 118 S.Ct.
1064, 140 L.Ed.2d 828 (1998); United States v.
Frady, 456 U.S. 1584, 1603-04, 102 S.Ct. 1584, 71
L.Ed.2d 816 (1998).
petitioner who entered a guilty plea must show an error of
constitutional magnitude that had a substantial and injurious
effect or influence on the proceedings. Griffin v. United
States, 330 F.3d 733, 736 (6th Cir. 2003) (citing
Abrahamson, 507 U.S. at 637). Therefore, a court may
only grant relief under § 2255 if the petitioner
demonstrates “‘a fundamental defect which
inherently results in a complete miscarriage of
justice.'” Id. at 736 (quoting Davis
v. United States, 417 U.S. 333, 346, 94 S.Ct. 2298, 41
L.Ed.2d 109 (1974)). A petitioner further bears the burden of
articulating sufficient facts to state a viable claim for
relief under § 2255. Vague and conclusory claims which
are not substantiated by allegations of specific facts with
some probability of verity are not enough to warrant relief.
A § 2255 motion may be dismissed if it only makes
conclusory statements without substantiating allegations of
specific facts and fails to state a claim cognizable under
§ 2255. Green v. Wingo, 454 F.2d 52, 53 (6th
Cir. 1972); O'Malley v. United States, 285 F.2d
733, 735 (6th Cir. 1961).
defendant challenges the validity of a plea, the
representations of the defendant, his lawyer, the prosecutor,
and the judge “constitute a formidable barrier in any
subsequent collateral proceedings.” Blackledge v.
Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 52 L.Ed.2d 136
(1977). Such “[s]olemn declarations in open court carry
a strong presumption of verity.” Id.
Subsequently-presented conclusory allegations that fly in the
face of the record are subject to summary dismissal.
Id. (citations omitted).
should hold an evidentiary hearing “[u]nless the motion
and the files and records of the case conclusively show that
the prisoner is entitled to no relief[.]” 28 U.S.C.
§ 2255(b). Thus, “no hearing is 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.'” Arredondo v. United States, 178
F.3d 778, 782 (6th Cir. 1999) (quoting Engelen v. United
States, 68 F.3d 238, 240 (8th Cir. 1995)); see also
Napier v. United States, No. 93-5412, 1993 WL 406795, at
*2 (6th Cir. Oct. 8, 1993) (“To be entitled to a
hearing, the prisoner must set forth detailed factual
allegations which, if true, would entitle him to relief under
§ 2255.”) (citing, among authorities,
Machibroda v. United States, 368 U.S. 487, 496, 82
S.Ct. 510, 7 L.Ed.2d 473 (1962)); cf. Valentine v. United
States, 488 F.3d 325, 334 (6th Cir. 2007) (finding that
the burden is met where the petitioner “offers more
than a mere assertion . . . he presents a factual narrative
of the events that is neither contradicted by the record nor
‘inherently incredible'”). Where (as here)
the judge considering the § 2255 motion also presided
over the sentencing hearing, the judge may rely on his or her
recollections of those proceedings. See Blanton v. United
States, 94 F.3d 227, 235 (6th Cir. 1996) (citation
Court finds that an evidentiary hearing is not warranted in
the present case. The undisputed facts in the record
demonstrate that petitioner's motion-filed more than two
years after his sentence became final-is time-barred under
the governing statute, and petitioner has not come forward
with any facts that would demonstrate that he is entitled to
Timeliness under ...