Roberge v. United States

Decision Date12 August 2013
Docket NumberCase No. 1:10-cv-273,Case No. 1:04-cr-70
PartiesGARY ROBERGE, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
CourtU.S. District Court — Eastern District of Tennessee

Judge Edgar


Federal prisoner Gary Roberge ("Roberge") moves for post-conviction relief under 28 U.S.C. § 2255. After reviewing the record, the Court concludes that the pro se motion will be denied and dismissed with prejudice. The record conclusively shows that the motion is without merit and Roberge is not entitled to any relief under § 2255. There is no need for an evidentiary hearing.

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).

Roberge bears the burden of establishing an error of federal constitutional magnitude which had a 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, Roberge 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 Roberge 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 Roberge 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

The underlying facts are summarized in United States v. Roberge, 565 F.3d 1005 (6th Cir. 2009). Roberge resided in a house in Cleveland, Tennessee with his wife, Christel, and their teenage daughter, Yodi. Detective Brumley received reliable information that Yodi Roberge, who was then 16 years of age, had told another person that her father was "cooking" (manufacturing) methamphetamine in the basement of their home. Detective Brumley went to the high school where Yodi was a student and interviewed her. Yodi told Detective Brumley that Roberge was cooking methamphetamine in the basement of their home and the fumes burned or irritated her throat.

Detective Brumley obtained a search warrant. When police officers executed the search warrant at Roberge's house, they found him asleep in bed with a loaded assault rifle. In the basement, officers seized various items associated with the manufacture of methamphetamine including glass jars containing bi-layered liquids, iodine tincture, Coleman fuel cans, muriatic acid, and plastic tubing. The police found a functional methamphetamine laboratory in the basement, the same place where Yodi had observed Roberge using methamphetamine. The police also found aloaded shotgun and another rifle. The police seized a total of three firearms plus ammunition.

The Tennessee Bureau of Investigation (TBI) tested two samples of the bi-layered liquids and found methamphetamine in the top layer of each sample. Roberge's expert witness, a scientist at a forensics toxicology laboratory, evaluated the same samples. He found no methamphetamine in the first sample and trace amounts of methamphetamine in the second sample. Roberge's expert witness conceded it was possible that the TBI's testing may have consumed the layer containing methamphetamine in the first sample.

A federal grand jury returned a four-count indictment against Roberge. Count One charged that he possessed firearms and ammunition as an unlawful user of a controlled substance, methamphetamine, in violation of 18 U.S.C. § 922(g)(3). Count Two One charged Roberge with attempting to manufacture methamphetamine in violation of 21 U.S.C. §§ 846 and 841(a)(1). Count Three charged him with possessing equipment, chemicals, products, and materials which may be used to manufacture methamphetamine in violation of 21 U.S.C. § 843(a)(6). In Count Four, Roberge was charged with possessing a firearm in furtherance of drug-trafficking crimes in violation of 18 U.S.C. § 924(c)(1)(A)(i).

Roberge pleaded not guilty and the case went to trial. In her trial testimony, Yodi described her father's use of methamphetamine in the basement. Yodi testified that one or two months before the police executed the search warrant, Roberge asked Yodi to buy and provide him with seven bottles of rubbing alcohol and six or seven boxes of matchbooks. Yodi saw Roberge remove the striker strips from the matchbooks. Detective Brumley testified that soaking the match strips in alcohol would produce red phosphorous, a key component used to manufacture methamphetamine.

Yodi also testified that she saw Roberge washing glass jars and taking them into the basement, after which she noticed a "real funny smell" and her skin broke out. Todd Russell, aconvicted cocaine dealer who shared a jail cell with Roberge, testified that Roberge admitted to manufacturing and selling methamphetamine. The jury returned a verdict finding Roberge guilty on all four counts.

The probation office prepared a presentence report (PSR) and calculated the applicable advisory federal sentencing guidelines. Pursuant to U.S.S.G. § 2K2.1(a)(6)(1) the base offense level for Count One was 14. Two levels were added because the conviction under Count One involved three firearms. There was an adjusted offense level of 16 on Count One.

With regard to Count Two, Roberge possessed four 16-ounce bottles plus a one liter bottle of tincture of iodine for a combined total of 94 ounces of iodine. The PSR extrapolated 99.64 grams of methamphetamine from this quantity of iodine. Applying the standard DEA conversion formula, one ounce of tincture of iodine yields 1.06 grams of methamphetamine. Roberge could have used the 94 ounces of iodine to manufacture 99.64 grams of methamphetamine. The estimated 99.64 grams of methamphetamine resulted in a base offense level of 26 under U.S.S.G. § 2D1.1(c).

A six-level increase was added to the offense level because Roberge created a substantial risk of harm to the life of a child, namely his minor daughter. U.S.S.G. § 2D1.1(b)(10)(D). Yodi lived in the house where Roberge had his methamphetamine lab. Yodi reported that the fumes burned her throat and caused her skin to break out. Because Roberge used his daughter, who was less than 18 years of age, to procure precursor chemicals and thereby assist Roberge in his efforts to manufacture methamphetamine, two more levels were added pursuant to U.S.S.G. § 3B1.4. After applying these enhancements, there was an adjusted offense level of 34 on Count Two.

On Count Three, Roberge started out with a base offense level of 12 under U.S.S.G. § 2D1.12(a)(1). This was increased by two levels pursuant to U.S.S.G. § 2D1.12(b)(1) because he intended to manufacture methamphetamine. The cross-reference in U.S.S.G. § 2D1.12(c) increasedthe offense level to 32, based on his conviction on Count Two. There was also an additional two-level increase under U.S.S.G. § 3B1.4 because Roberge used his minor...

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