United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OPINION AND ORDER
NUGENT Senior United States District Judge
matter comes before the Court upon the Petitioner's
Motion to Vacate, Set Aside, or Correct Sentence under 28
U.S.C. § 2255. (ECF #662). Petitioner seeks to vacate
his sentence and conviction on Count One, Conspiracy to
Possess with the Intent to Distribute and/or Distribution of
Cocaine in violation of 21 U.S.C. §§ 846 &
841(a)(1) and (b)(1)(A) and Count Twenty-Eight, Felon in
Possession of a Firearm in violation of 18 U.S.C. §
922(g)(1). He alleges that his convictions are
unconstitutional. (ECF #662). For the reasons set forth
below, Petitioner's Motion is DENIED.
November 14, 2012, Petitioner pled guilty to Conspiracy and
to being a Felon in Possession of a firearm. (ECF #270).
Petitioner raised no objection to the Pre-sentence
Investigation Report (PSR). (ECF #337). Petitioner did,
untimely, object to two of the criminal history points. (ECF
#451). The government argued that (1) the Petitioner admitted
to engaging in the conduct required of the offense within the
relevant time period; and, (2) this additional two-level
enhancement was inconsequential because without the
enhancement Petitioner was still in criminal history category
VI. (Id.). Although it was untimely, the District
Court heard the argument, but ultimately overruled
Petitioner's objection. (Id.).
February 1, 2013, Petitioner was sentenced to the mandatory
minimum term of imprisonment of 240 months. (ECF #356).
Petitioner filed a timely appeal. (ECF #355). On April 1,
2014, the Court of Appeals affirmed Petitioner's
conviction. (ECF #455). Petitioner then filed a Motion for a
New Trial under Rule 33(b)(1) of the Federal Rules of
Criminal Procedure, (ECF #452), which the Court denied. (ECF
October 17, 2019, Petitioner filed a Motion to Vacate and
Correct Sentence under 28 U.S.C. § 2255. (ECF #662).
OF THE CASE
was a drug dealer with four prior drug distribution
convictions. (ECF #337). On October 26, 2011, officials from
Federal Bureau of Investigation executed a federal search
warrant at 460 Reynolds Avenue, Columbus, Ohio, the residence
of Petitioner. (ECF #12). The search yielded a Sig Sauer
automatic weapon, one magazine, .40 caliber rounds,
miscellaneous paper, photographs, mail, a copy of a photo ID
for Petitioner, a Kodiak EasyShare, two Samsung TMobile cell
phones, a notebook, 9mm rounds, books, and New York license
plates. (Id.). The wiretaps and later physical
surveillance revealed that Petitioner was responsible for
importing multiple kilograms of cocaine into the Stark
County, Ohio area. (Id.).
filed a Motion to Vacate, Set Aside, or Correct Sentence
under 28 U.S.C. § 2255. (ECF #662). Title 28, U.S.C,
§ 2255, sets forth the four grounds upon which a federal
prisoner may base a claim for relief: (1) that the sentence
was imposed in violation of the Constitution or the laws of
the United States; (2) that the court was without
jurisdiction to impose such sentence; (3) that the sentence
was in excess of the maximum authorized by law; or (4) that
the sentence is otherwise subject to collateral attack.
Hill v. United States, 368 U.S. 424, 426-27 (1962).
To prevail on a § 2255 motion, Petitioner must prove by
a preponderance of the evidence that his/her constitutional
rights were denied or infringed. United States v.
Wright, 624 F.2d 557, 558 (5th Cir. 1980).
well settled that a proper § 2255 motion does not reach
alleged errors that are not of a constitutional or
jurisdictional magnitude and that could have been reached by
a direct appeal. Stone v. Powell 428 U.S. 465, 477
(1976). To "obtain collateral relief a prisoner must
clear a significantly higher hurdle than would exist on
direct appeal." United States v. Fradv, 456
U.S. 152, 166 (1982). "Once the defendant's chance
to appeal has been waived or exhausted, however, we are
entitled to presume he stands fairly and finally
convicted." Id. at 164.
the Court in Clav v. United States, 537 U.S. 522,
525-27 (2003), held that where a defendant does not seek
certiorari review from the appellate court judgment, the
judgment becomes final when the time to petition for a writ
of certiorari expires. The petitioner in this case had a
window of ninety days after the Court of Appeals affirmed his
conviction to file a writ of certiorari; this window closed
on June 30, 2014. Petitioner now files his motion under
§ 2255 more than five years after his conviction became
final. Thus, the motion is time barred.
on the above rationale, Petitioner's Motion to Vacate,
Set Aside, or Correct Sentence under 28 U.S.C. § 2255 is
DENIED without an evidentiary hearing, as the files and
records of this Court establish that he is not entitled to
any relief. See Valentine v. United States, 488 F.3d
325, 333 (6th Cir. 2007) (no evidentiary hearing required
where "record conclusively shows that the petitioner is
entitled to no relief) (quoting Arredondo v. United
States, 178 F.3d 778, 782 (6th Cir. 1999));
Ross v. United States, 339 F.3d 483, 490 (6th Cir.
2003) (quoting Green v. United States, 65 F.3d 546
(6th Cir. 1995)). Petitioner has not complied with procedural
requirements, as he filed the ...