Ray v. United States, 11–6436.

• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)
• Writing for the Court: O'MALLEY
• Citation: 721 F.3d 758
• Parties: Ronnie Travis RAY, Petitioner–Appellant, v. UNITED STATES of America, Respondent–Appellee.
• Docket Number: No. 11–6436.,11–6436.
• Decision Date: 01 August 2013

721 F.3d 758

Ronnie Travis RAY, Petitioner–Appellant,
v.
UNITED STATES of America, Respondent–Appellee.

No. 11–6436.

United States Court of Appeals,
Sixth Circuit.

Aug. 1, 2013.

[721 F.3d 759]

ON BRIEF:C. Mark Pickrell, The Pickrell Law Group, P.C., Nashville, Tennessee, for Appellant. Dan L. Newsom, United States Attorney's Office, Memphis, Tennessee, for Appellee.

Before: BATCHELDER, Chief Judge; COOK and O'MALLEY, Circuit Judges. ^*

[721 F.3d 760]

OPINION
O'MALLEY, Circuit Judge.

Petitioner–Appellant Ronnie Travis Ray (“Ray”), through counsel, appeals from the district court's order denying his motion to vacate his sentence filed pursuant to 28 U.S.C. § 2255. Although Ray requested oral argument, this panel unanimously agrees that argument is not necessary in this case. Fed. R.App. P. 34(a). Because the district court properly dismissed Ray's Fourth and Sixth Amendment claims, and did not abuse its discretion in entering judgment without an evidentiary hearing, we AFFIRM.

I. Background

In January 2004, Ray was indicted on five counts of conduct involving child pornography in violation of 18 U.S.C. §§ 2251(a), 2252(a)(1), and 2252(a)(4)(B). A jury convicted Ray on all counts on October 14, 2004, and he was sentenced to concurrent prison terms of 180 months on Count 1, 300 months on Count 2, and 600 months on Counts 3, 4, and 5. On appeal, this Court affirmed the convictions on all five counts, but vacated the sentence and remanded, finding that the district court failed to explain adequately its upward departure from the recommended sentencing guideline range. United States v. Ray, 189 Fed.Appx. 436, 449–50 (6th Cir.2006). In that decision, we noted that the evidence of Ray's guilt was “overwhelming.” Id. at 444 (“Here, there was overwhelming evidence that Ray induced minors into engaging in sexually explicit conduct, that he took photographs of the minors in question, and that he transported those photographs across state lines via e-mail.”). On remand, Ray was sentenced to concurrent terms of 180 months on Count 1, 300 months on Count 2, and 360 months on Counts 3, 4, and 5. This Court affirmed that sentence. United States v. Ray, No. 07–5673 (6th Cir. June 6, 2008).

In his pro se motion to vacate his sentence, Ray argued, among other things, that: (1) there was an illegal search and seizure in violation of the Fourth Amendment; and (2) trial counsel rendered ineffective assistance in violation of the Sixth Amendment.¹ In his Fourth Amendment claim—which was raised for the first time in his § 2255 motion—Ray asserts that the person who consented to the search of his home, Deborah Moore, lacked authority to do so.

The district court denied Ray's § 2255 motion on November 2, 2011 without a hearing, finding no grounds upon which to grant him a certificate of appealability. In relevant part, the district court found that: (1) Fourth Amendment issues ordinarily are not cognizable in a § 2255 motion; (2) the evidence adduced at trial revealed that Moore had, at a minimum, apparent authority to consent to the search; and (3) Ray failed to show that his counsel was ineffective. On October 11, 2012, this Court granted Ray a certificate of appealability on all issues presented in Ray's motion to vacate and appointed counsel to represent him.

II. Discussion

On appeal, Ray identifies three issues for review: (1) whether the district court erred by failing to grant an evidentiary hearing on the Fourth and Sixth Amendment issues raised in his § 2255 petition; (2) whether the search of his home was “objectively unreasonable” under the Fourth Amendment; and (3) whether defense counsel was ineffective. Although he identifies three issues, Ray's argument focuses solely on the question of whether the

[721 F.3d 761]

district court abused its discretion in dismissing his § 2255 motion without conducting an evidentiary hearing. According to Ray, a hearing is necessary to determine: (1) whether Moore had authority to consent to the search of his home; and (2) whether defense counsel should have moved to suppress the evidence gathered during the searches of his home.

We review the district court's denial of an evidentiary hearing for an abuse of discretion. Valentine v. United States, 488 F.3d 325, 333 (6th Cir.2007). “A district court abuses its discretion when it relies on clearly erroneous findings of fact, when it improperly applies the law, or when it uses an erroneous legal standard.” Kuhn v. Sulzer Orthopedics, Inc., 498 F.3d 365, 368–69 (6th Cir.2007).

When a factual dispute arises in a § 2255 proceeding, an evidentiary hearing is required “ ‘to determine the truth of the petitioner's claims.’ ” Valentine, 488 F.3d at 333 (quoting Turner v. United States, 183 F.3d 474, 477 (6th Cir.1999)). A hearing is not necessary, however, when a petitioner's claims “ ‘cannot be accepted as true because they are contradicted by the record, inherently incredible, or [are] conclusions rather than statements of fact.’ ” Id. (quoting Arredondo v. United States, 178 F.3d 778, 782 (6th Cir.1999)). Where, as here, the judge considering the § 2255 motion also presided over the trial, the judge may rely on her recollections of the trial. Blanton v. United States, 94 F.3d 227, 235 (6th Cir.1996).

It is well-established that a § 2255 motion “is not a substitute for a direct appeal.” Regalado v. United States, 334 F.3d 520, 528 (6th Cir.2003) (citing United States v. Frady, 456 U.S. 152, 167–68, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982)). Accordingly, claims that could have been raised on direct appeal, but were not, will not be entertained via a motion under § 2255 unless the petitioner shows: (1) cause and actual prejudice to excuse his failure to raise the claims previously; or (2) that he is “actually innocent” of the crime. Bousley v. United States, 523 U.S. 614, 622, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) (internal citations omitted). On appeal, Ray does not assert that he is actually innocent of the crimes for which he was convicted, but argues that his counsel's ineffectiveness excuses his...