Fudge v. U.S.

• Decision Date: 30 September 2009
• Docket Number: File No. 1:06-CV-695.
• Citation: 673 F.Supp.2d 568
• Parties: Melvin FUDGE, Movant, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — Western District of Michigan

673 F.Supp.2d 568

Melvin FUDGE, Movant, v. UNITED STATES of America, Respondent.

File No. 1:06-CV-695.

United States District Court, W.D. Michigan, Southern Division.

September 30, 2009.

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Melvin Fudge, Pine Knot, KY, pro se.

Hagen W. Frank, U.S. Attorney, Grand Rapids, MI, for Respondent.

OPINION

ROBERT HOLMES BELL, District Judge.

This matter is before the Court on Movant Melvin Fudge's motion pursuant to 28 U.S.C. § 2255 to vacate, set aside or correct his sentence. Defendant filed his original § 2255 motion on September 25, 2006. (Dkt. No. 1.) The United States filed a response on January 3, 2007. (Dkt. No. 8.) Movant filed a reply on February 5, 2007. (Dkt. No. 11.) Movant filed a motion to amend (Dkt. No. 13), which the Court granted in part and denied in part. (Dkt. Nos. 14, 15, 05/14/2007 Op. & Order.) Respondent filed a response to the amended § 2255 motion. (Dkt. No. 17.) Movant filed a reply to the response. (Dkt. No. 19.)

I. Background

On March 5, 2004, police officers executed a search warrant to search Movant's apartment building. While executing the warrant, a witness across the street saw a sock thrown from the building and alerted the police officers. The officers examined the sock and discovered 36 grams of cocaine base ("crack") and 33 grams of powder cocaine. Officers then saw Movant running from the basement of the apartment building and pursued and arrested him. Officer Gene Tobin placed Movant in a police cruiser and later questioned him. Movant confessed to Officer Tobin that he had thrown the sock from the building. In the apartment building, officers discovered a police scanner, a box of plastic baggies, a digital scale, and two-way radios. Officers also discovered surveillance cameras aimed at the front and rear exits of the building that were wired to televisions in Movant's apartment.

On April 7, 2004, Movant was charged with one count of possession with intent to distribute 36 grams of cocaine base and 33 grams of cocaine, in violation of 21 U.S.C. § 841(a)(1) ("Count 1"), and one count of possession with intent to distribute 36 grams of cocaine base and 33 grams of cocaine within 1,000 feet of an elementary school in violation of 21 U.S.C. § 860(a) ("Count 2"). (United States v. Fudge, File No. 1:04-CR-77, Dkt. No. 1, Indictment.) On July 22, 2004, a jury convicted Movant on both counts. Movant was sentenced to 168 months of imprisonment and eight years of supervised release on Count 1, and life imprisonment and 10 years of supervised release on Count 2, to be served concurrently. (File No. 1:04-CR-77, Dkt. No. 58, J. in Crim. Case.) The Court also imposed a $100 assessment on each count, as well as a $10,000 fine. (Id.)

Movant's § 2255 motion alleges nine grounds on which his sentence should be vacated, set aside or corrected. First, Movant alleges that his Fourth Amendment rights were violated because a hearing was required by Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), but no Franks hearing was held. Second, Movant alleges that his Sixth Amendment rights were violated because his trial counsel was ineffective for failing to request a Franks hearing. Third, Movant alleges that his counsel on appeal was ineffective. Fourth, Movant alleges that his due process rights were violated by the use of perjured testimony. Fifth, Movant alleges that the Government failed to disclose evidence as required by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Sixth, Movant alleges that the evidence presented at trial was insufficient to support a finding that he possessed and intended to distribute the cocaine and cocaine base found outside of his apartment. Seventh, Movant alleges that his sentence was invalid under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and that his sentence constitutes cruel and unusual punishment under the Eighth Amendment. Eighth, Movant alleges that the trial court lacked subject-matter jurisdiction because the statutes under which he was tried and sentenced were not validly enacted. Ninth, Movant alleges that his trial counsel was ineffective because she did not object based on the Double Jeopardy Clause of the Fifth Amendment to Movant being convicted and sentenced under both § 841(a)(1) and § 860(a) for the same underlying conduct.

II. Standard

A prisoner who moves to vacate his sentence under § 2255 must show that:

[T]he sentence was imposed in violation of the Constitution or laws of the United States, that the court was without jurisdiction to impose such sentence, that the sentence was in excess of the maximum authorized by law, or that it is otherwise subject to collateral attack.

28 U.S.C. § 2255. To prevail on a § 2255 motion the movant "must demonstrate the existence of an error of constitutional magnitude which had a substantial and injurious effect or influence on the guilty plea or the jury's verdict." Humphress v. United States, 398 F.3d 855, 858 (6th Cir.2005) (quoting Griffin v. United States, 330 F.3d 733, 736 (6th Cir.2003)).

In order to obtain collateral relief under § 2255, a petitioner must clear a significantly higher hurdle than would exist on direct appeal. United States v. Frady, 456 U.S. 152, 166, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). A petitioner is procedurally barred from raising claims in a § 2255 motion, even those of constitutional magnitude, to which no contemporaneous objection was made or which were not presented on direct appeal. Frady, 456 U.S. at 167-68, 102 S.Ct. 1584; Nagi v United States, 90 F.3d 130, 134 (6th Cir. 1996). Generally, where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in a motion under § 2255 only if the defendant first demonstrates either cause for the default and actual prejudice or that he is actually innocent. Massaro v. United States, 538 U.S. 500, 504, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003); Bousley v. United States, 523 U.S. 614, 622, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). To satisfy the "cause" test, a petitioner must show that "some objective factor external to the defense" kept him from raising the issue earlier. Coleman v. Thompson, 501 U.S. 722, 753, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (quoting Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986)).

An ineffective assistance of counsel claim, however, is not subject to the procedural default rule. Massaro, 538 U.S. at 504, 123 S.Ct. 1690. An ineffective assistance of counsel claim may be raised in a collateral proceeding under § 2255, whether or not the petitioner could have raised the claim on direct appeal. Id.

In an action to vacate or correct the sentence, a court is required to grant a hearing to determine the issues and make findings of fact and conclusions of law "[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. Moreover,

[the statute] does not require a full blown evidentiary hearing in every instance .... Rather, the hearing conducted by the court, if any, must be tailored to the specific needs of the case, with due regard for the origin and complexity of the issues of fact and the thoroughness of the record on which (or perhaps, against which) the section 2255 motion is made.

Smith v. United States, 348 F.3d 545, 550-51 (6th Cir.2003) (quoting United States v. Todaro, 982 F.2d 1025, 1030 (6th Cir. 1993)). In addition, "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." Valentine v. United States, 488 F.3d 325, 333 (6th Cir.2007) (quoting Arredondo v. United States, 178 F.3d 778, 782 (6th Cir.1999)). Where the judge considering the § 2255 motion also conducted the trial, the judge may rely on his or her recollections of the trial. Blanton v. United States, 94 F.3d 227, 235 (6th Cir.1996).

III. Analysis

A. Ground One: Court's Failure to Hold a Franks Hearing

First, Movant alleges that the Court erred in failing to hold a Franks hearing to determine whether the search warrant was valid. See Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). However, it was the Movant's obligation, not the Court's, to request such a hearing and to make a "substantial preliminary showing" that it was warranted. See id. at 155-56, 98 S.Ct. 2674 (stating that "where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit ... the Fourth Amendment requires that a hearing be held at the defendant's request") (emphasis added). Movant has not indicated that the Court denied a request for such a hearing; indeed, Movant contends that his counsel was ineffective for failing to request such a hearing. (Dkt. No. 2, Movant's Mem. in Supp. 10.) Thus, Movant's claim that the Court was in error for not holding a hearing is without merit.

B. Ground Two: Ineffective Assistance of Counsel for Failure to Request a Franks Hearing.

Movant also alleges that his trial counsel was ineffective in failing to request a Franks hearing. Movant alleges that certain statements in the warrant used to uncover evidence of criminal conduct at his residence are false. In the affidavit in support of the warrant, Officer Gootjes stated:

Your affiant conducted a trash pull on February 24, 2004. Inside the trash bags were mail with the name of Melvin Fudge at 921 East Fulton Street #2. Inside the trash bags was cocaine and marijuana residue.... Your affiant conducted another trash pull on March 5, 2004. Inside the trash was mail with the name of...