Clark v. United States

Decision Date11 September 2012
Docket NumberCase No. 4:02-cr-17 / 4:10-cv-39
PartiesTHOMAS H. CLARK, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
CourtU.S. District Court — Eastern District of Tennessee

Judge Edgar


Federal prisoner Thomas H. Clark moves for post-conviction relief under 28 U.S.C. § 2255.

I. Standard of Review Under 28 U.S.C. § 2255

28 U.S.C. § 2255(a) provides that a federal prisoner may make a motion to vacate, set aside, or correct a judgment of conviction or sentence on the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the federal district court lacked jurisdiction to impose the sentence, or that the sentence is in excess of the maximum authorized by federal law, or is otherwise subject to collateral attack.

As a threshold standard to relief a § 2255 motion must allege: (1) an error of constitutional magnitude; (2) a sentence was imposed outside the federal statutory limits; or (3) an error of fact or law that was so fundamental as to render the entire criminal proceeding invalid. Short v. United States, 471 F.3d 686, 691 (6th Cir. 2006); Pough v. United States, 442 F.3d 959, 964 (6th Cir. 2006); Mallett v. United States, 334 F.3d 491, 496-97 (6th Cir. 2003); Moss v. United States, 323 F.3d 445, 454 (6th Cir. 2003); Weinberger v. United States, 268 F.3d 346, 351 (6th Cir. 2001).

Clark bears the burden of establishing an error of federal constitutional magnitude which hada substantial and injurious effect or influence on the criminal proceedings. Reed v. Farley, 512 U.S. 339, 353 (1994); Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993); Humphress v. United States, 398 F.3d 855, 858 (6th Cir. 2005); Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003); Watson v. United States, 165 F.3d 486, 488 (6th Cir. 1999).

A § 2255 motion is not a substitute for a direct appeal. Where nonconstitutional issues are at stake, there is no basis for allowing a collateral attack under 28 U.S.C. § 2255 to do service for a direct appeal. Bousley v. United States, 523 U.S. 614, 621 (1998); United States v. Frady, 456 U.S. 152, 167-68 (1982); United States v. Timmreck, 441 U.S. 780, 784 (1979); Regalado v. United States, 334 F.3d 520, 528 (6th Cir. 2003); Grant v. United States, 72 F.3d 503, 506 (6th Cir. 1996). To obtain relief under 28 U.S.C. § 2255 for a nonconstitutional error, e.g. an error in calculating the applicable sentencing range under the United States Sentencing Guidelines, Clark must establish either: (1) a fundamental defect in the criminal proceedings which inherently resulted in a complete miscarriage of justice; or (2) an error so egregious that it amounts to a violation of due process. Reed, 512 U.S. at 353-54; Hill v. United States, 368 U.S. 424, 428 (1962); Jones v. United States, 178 F.3d 790, 796 (6th Cir. 1999); Watson, 165 F.3d at 488; Fair v. United States, 157 F.3d 427, 430 (6th Cir. 1998); Grant, 72 F.3d at 505-06.

An evidentiary hearing is unnecessary if there are no genuine issues of material fact in dispute and the record conclusively shows that Clark is not entitled to relief under § 2255. An evidentiary hearing is not required where the allegations and claims cannot be accepted as true because they are contradicted by the record, inherently incredible, or mere conclusions rather than statements of fact. Amr v. United States, 280 Fed. Appx. 480, 485 (6th Cir. 2008); Valentine v. United States, 488 F.3d 325, (6th Cir. 2007); Arredondo v. United States, 178 F.3d 778, 782 (6thCir. 1999); Brain v. United States, 2011 WL 1343344, * 2 (E.D. Tenn. April 8, 2011); Jones v. United States, 2010 WL 1882122, * 1 (E.D. Tenn. May 11, 2010).

The burden is on Clark to articulate sufficient facts to state a viable claim for relief. Vague, conclusory claims which are not substantiated by allegations of specific facts with some probability of verity are not enough to warrant an evidentiary hearing. A § 2255 motion may be dismissed if it 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); Brain, 2011 WL 1343344, at * 2; Jones, 2010 WL 1882122, at * 2.

II. Facts and Procedural History

On September 24, 2001, during an undercover narcotics investigation, a police officer purchased 0.4 grams of cocaine base (crack) from Clark at a house in Shelbyville, Tennessee. On March 13, 2002, a federal grand jury initially indicted Clark on a charge of distributing crack cocaine and he was placed on pretrial diversion. Clark was unable to stay out of trouble and he continued to engage in drug trafficking activity while possessing a firearm.

On June 6, 2003, police informant Michael Wilson ("Wilson") made a controlled purchase of 6.9 grams of crack cocaine from Clark and Katherine Haston ("Haston") inside a mobile home or trailer rented by Reginald Brown ("Brown"). Wilson told the police that Clark and Haston regularly sold crack cocaine from the trailer but they did not actually live or reside there.

On June 9, 2003, police officers assigned to a drug task force obtained a valid search warrant for Brown's trailer. Upon executing the search warrant on June 12, 2003, the police officers found five persons inside the trailer's kitchen: Clark, Haston , Brown, Wilson, and Karen Anderson. Whenthe search warrant was executed on June 12, 2003, Wilson was not acting as a government agent or informant. Wilson was not present in Brown's trailer on June 12, 2003 under the direction or supervision of the police. Although Wilson had previously been an informant in cooperation with the police, Wilson had chosen to continue his own criminal drug trafficking activity.

Pursuant to the search warrant the officers seized from the kitchen table two digital weight scales commonly used for distributing drugs along with three bags of crack cocaine weighing 19.2 grams, 6 grams, and 1.1 grams, respectively. A loaded 9 mm semi-automatic handgun was found in a kitchen cabinet. It was later determined that Clark often possessed the handgun and that it was Clark who placed the handgun inside the kitchen cabinet. The police also found more than three grams of marijuana on Clark's person.

On May 11, 2004, a federal grand jury returned a second superseding indictment against Clark and co-defendants Haston, Brown, and Wilson. Count One of the superseding indictment charged Clark, Haston, Brown, and Wilson with conspiracy to violate 21 U.S.C. § 841(a)(1), that is, to distribute and possess with the intent to distribute five grams or more of cocaine base (crack), all in violation of 21 U.S.C. § 846. Count Two charged that Clark distributed cocaine base (crack) in violation of 21 U.S.C. § 841(a)(1). Count Five charged that Clark and Haston, aided and abetted by each other, possessed with the intent to distribute five grams or more of cocaine base (crack) in violation of 21 U.S.C. §§ 2 and 841(a)(1).

Count Six charged that Clark and Haston, aided and abetted by each other, possessed a firearm, the loaded 9 mm semi-automatic handgun, in furtherance of the drug trafficking crimes charged in Counts One and Five in violation of 21 U.S.C. § 924(c). Count Seven charged that Clark, having previously been convicted of a felony, knowingly possessed in and affecting commerce afirearm, the loaded 9 mm semi-automatic handgun, which had previously been transported in interstate commerce, in violation of 21 U.S.C. § 922(g). Count Ten charged that Clark possessed marijuana in violation of 21 U.S.C. § 844.

Clark pleaded not guilty. Clark's counsel made a motion to suppress the evidence seized by the police during the execution of the search warrant at Brown's trailer. This Court held a hearing and denied Clark's motion to suppress. Prior to trial the government filed a notice informing Clark that, if convicted, his sentence would be enhanced based on his prior felony drug conviction.

The case went to trial in April 2005. At trial, an agent with the United States Bureau of Alcohol, Tobacco, Firearms and Explosives testified that the loaded 9 mm semi-automatic handgun found inside Brown's trailer had been manufactured in California. This established that the handgun had traveled in interstate commerce from California to Tennessee. Clark stipulated that he had a prior felony conviction and he was ineligible to lawfully possess a firearm.

Brown testified that Clark primarily functioned as Haston's bodyguard and Clark usually carried or possessed a firearm. Brown further testified that during the police execution of the search warrant at his trailer on June 12, 2003, Brown observed Clark take the 9 mm semi-automatic handgun from Clark's waistband and hide it in the kitchen cabinet. Brown testified that he had previously observed Clark carrying the same handgun on other occasions.

Karen Anderson testified that she had repeatedly obtained crack cocaine from Brown's trailer. Anderson usually dealt with Haston, but Anderson also occasionally purchased drugs from Clark. Anderson considered Clark to be Haston's bodyguard. Anderson testified that she saw Clark with a 9 mm handgun on several occasions. Anderson further testified that on June 12, 2003, shortly before the police executed the search warrant, Clark brought the handgun and bags of cocaine intoBrown's trailer.

The prosecution also called Todd Russell ("Russell") as a witness. Russell testified that he repeatedly purchased crack cocaine from Brown's trailer during the spring of 2003. Russell purchased drugs from Clark on one or two occasions, and from Haston more than ten times. Russell testified that Clark seemed to be acting as Haston's bodyguard or enforcer. Russell recalled going to Brown's trailer one night to buy crack cocaine and encountering Clark pointing a gun at Russell when the door was opened. Russell further testified that on a...

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