Decision Date14 April 2011
Docket NumberNo. 1:07-cv-49,No. 1:03-cr-257,1:07-cv-49,1:03-cr-257
CourtU.S. District Court — Eastern District of Tennessee



Judge Edgar

Rory Shankles ("Shankles") has filed a pro se motion for post-conviction relief pursuant to 28 U.S.C. § 2255 (Crim. Court File No. 271).1 Shankles pled guilty to Count One of an eighteen-count indictment. Count One charged Shankles along with nine other named codefendants and others know and unknown to the grand jury with conspiring to manufacture and distribute 50 grams or more of methamphetamine in violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(B).

In this § 2255 Shankles's claims he was denied his right to due process for the following reasons: (1) he was sentenced to 168 months in prison based on an unconstitutional statute; (2) the Court enhanced his sentence based on an unconstitutional statute, i.e., 21 U.S.C. § 851; and (3) he was convicted of an offense involving a Schedule II controlled substance when non-injectable methamphetamine is a Schedule III controlled substance. In addition, Shankles claims his counsel rendered ineffective assistance because he failed to investigate his case and challenge the drug quantity asserted by the government.2

The motion, together with the files and record in this case, "conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255; see also Rule 4(b) of the Rules Governing Section 2255 Proceedings in the United States District Courts. The Court determines an evidentiary hearing is not necessary and for the following reasons will DENY Shankles's § 2255 motion (Court File No. 271).

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

This Court must vacate and set aside the sentence if it finds that "the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, . . . ." 28 U.S.C. § 2255. Under Rule 4 of the Rules Governing Section 2255 Proceedings In The United States District Courts, the Court is to consider initially whether the face of the motion itself, together with the annexed exhibits and prior proceedings in the case, reveals the movant is not entitled to relief. If it plainly appears the movant is not entitled to relief, the Court may summarily dismiss the § 2255 motion under Rule 4.

When a defendant files a § 2255 motion, he must set forth facts which entitle him to relief. Green v. Wingo, 454 F.2d 52, 53 (6th Cir. 1972);3 O'Malley v. United States, 285 F.2d 733, 735 (6th Cir. 1961). "Conclusions, not substantiated by allegations of fact with some probability of verity, are not sufficient to warrant a hearing." Green v. Wingo, 454 F.2d at 53; O'Malley, 285 F.2d at 735(citations omitted). Therefore, a motion that merely states general conclusions of law without substantiating allegations with facts, is without legal merit. Loum v. Underwood, 262 F.2d 866, 867 (6th Cir. 1959); United States v. Johnson, 940 F. Supp. 167, 171 (W.D. Tenn. 1996).

"It is a 'well-settled principle that to obtain collateral review relief a prisoner must clear a significantly higher hurdle than would exist on direct appeal.'" Fair, 157 F.3d at 430, quoting United States v. Frady, 456 U.S. 152, 166 (1982). A defendant must show a "fundamental defect" in the proceedings which necessarily results in a complete miscarriage of justice or an egregious error which violates due process in order to prevail under 28 U.S.C. § 2255. See Fair, 157 F.3d at 430; Gall v. United States, 21 F.3d 107, 109 (6th Cir. 1994).

To warrant relief under 28 U.S.C. § 2255 because of constitutional error, the error must be one of constitutional magnitude which had a substantial and injurious effect or influence on the proceedings. Reed v. Farley, 512 U.S. 339, 353 (1994); Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (citation omitted) (§ 2254 case); Hill v. United States, 368 U.S. 424, 428 (1962); Clemmons v. Sowders, 34 F.3d 352, 354 (6th Cir. 1994); see also United States v. Cappas, 29 F.3d 1187, 1193 (7th Cir. 1994) (applying Brecht to a § 2255 motion). In other words, "[o]n collateral review, a trial error is deemed harmless unless it had a 'substantial and injurious effect or influence in determining the jury's verdict.'" Fair v. United States, 157 F.3d 427, 430 (6th Cir. 1998), (quoting Brecht v. Abrahamson, 507 U.S. at 637). If the sentencing court lacked jurisdiction, however, then the conviction is void and must be set aside. Williams v. United States, 582 F.2d 1039, 1041 (6th Cir.), cert. denied, 439 U.S. 988 (1978).

To warrant relief for a nonconstitutional error, however, a movant must demonstrate a fundamental defect in the proceedings resulted in a complete miscarriage of justice or an egregiouserror inconsistent with the rudimentary demands of fair procedure occurred during the criminal proceedings. Reed v. Farley, 512 U.S. at 354; Grant v. United States, 72 F.3d 503, 506 (6th Cir.), cert. denied, 517 U.S. 1200 (1996).

Having reviewed the materials thus submitted, together with the complete record of the underlying criminal case, the Court finds they show conclusively defendant is not entitled to relief on the claims asserted. Accordingly, the Court will decide the matter without an evidentiary hearing and explain the reasons the asserted grounds for relief are without merit. See United States v. Todaro, 982 F.2d 1025, 1028 (6th Cir.), cert. denied, 508 U.S. 943 (1993).

II. Background

On March 17, 2004, Shankles pled guilty to count one of an eighteen-count indictment. Shankles pled guilty to conspiring to manufacture and distribute 50 grams or more of methamphetamine in violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(B). He was subsequently sentenced to the custody of the United States Bureau of Prisons to be imprisoned for a term of 168 months. Shankles pursued a direct appeal and the Court of Appeals for the Sixth Circuit affirmed the district court's judgment (Criminal Court File No. 246).

The following recitation of facts is taken from the Presentence Report ("PSR"):

24. On May 17, 2003, a Chattanooga, Tennessee, Police Department (CPD) officer observed Robert Adkins' vehicle with a broken taillight in Chattanooga, Tennessee. The officer initiated a traffic stop. Robert Adkins was driving the vehicle and Damien Swanson was a passenger. Inside the vehicle, in plain view, the officer observed a hot plate, a gas can, and mason jars. Adkins did not have a driver's license. When he was removed from the car and placed under arrest, Adkins attempted to hide a bag of ephedrine when patted down. CPD officers also found a bag of red phosphorous in the vehicle. Adkins made a voluntary statement admitting to manufacturing (cooking) and selling methamphetamine.

25. On May 24, 2003, Christi Kinsey was driving her vehicle in East Ridge,Tennessee. There were outstanding warrants for her arrest and an East Ridge, Tennessee, police officer was aware of the warrants. He stopped the car and arrested her. When a search was conducted of the vehicle, the officers found jars with two-layered liquids, coffee filters, aluminum foil, and other items associated with manufacturing methamphetamine.

26. On July 17, 2003, Larry Gregg was the subject of a traffic stop in East Ridge. In plain view, the officers saw cans of Drano drain cleaner and rubber tubing. Gregg gave consent to search the car and officers found evidence of methamphetamine manufacturing including a jar containing a layered liquid, Coleman fuel, and other items. Agents with the Drug Enforcement Administration (DEA) responded to the scene and Gregg told one of the agents that he was delivering the items to Christi Kinsey and she was going to cook the methamphetamine.

27. On August 5, 2003, CPD officers responded to the King's Lodge hotel in Chattanooga, where a reported methamphetamine laboratory was in a hotel room. Officers found Larry Gregg in the room and he was arrested.

28. On August 21, 2003, a DEA agent went to Ft. Payne, Alabama, to interview Rory Shankles. Shankles was in custody in Alabama after being arrested there for methamphetamine offenses on August 5, 2003. After advice and waiver of rights, Shankles stated that from 1978 to 1984 he manufactured methamphetamine using cases of inhalant products. From 1989 to 1990, he assisted others in manufacturing methamphetamine using the chemical P2P. From 1992 until his arrest in Alabama, Shankles stated he cooked methamphetamine one to two times a week, averaging a yield of eight to twelve ounces of methamphetamine per cook. He stated he used the red phosphorous method since 1992. Shankles admitted that he frequently obtained chemicals and equipment for meth cooking in the Eastern District of Tennessee.

29. On October 17, 2003, officers with the East Ridge Police Department executed a search warrant at 701 Haven Hill Drive, East Ridge. This residence is a multifamily dwelling, formerly a single-family residence that has now been converted into apartments. The owner, Charles Harris, lived in the building. Stephanie Highfield lived in an apartment in the building, and her apartment was the subject of the search warrant. Jesse Highfield, Stephanie's brother, apparently lived in a bedroom which was part of both Charles Harris's apartment and in his sister's apartment. Jesse Highfield was in Stephanie Highfield's apartment when the search warrant was executed. He ran into the kitchen and attempted to dispose of some methamphetamine. Officers found equipment and chemicals throughout Stephanie Highfield's apartment as well as finished methamphetamine (exact amount unknown). Some of the items found included:

• Pyrex dishes with red stains

• Tubing

• 500 ml flask with red residue

• Funnels

• Unused coffee filters

• 10 boxes of 50-count book matches

• 2 bottles...

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