U.S. v. Osborne

Decision Date23 September 2003
Docket NumberNo. 1:02-CV-324.,No. 1:99-CR-51.,1:02-CV-324.,1:99-CR-51.
Citation286 F.Supp.2d 891
PartiesUNITED STATES of America, v. Mitchell D. OSBORNE.
CourtU.S. District Court — Eastern District of Tennessee

Mitchell D. Osborne, pro se, Memphis, TN, Charles G. Wright, Jr., Chattanooga, TN, for petitioner/defendant.

Paul W. Laymon, U.S. Department of Justice, Office of U.S. Attorney, Chattanooga, TN, for respondent.

MEMORANDUM

COLLIER, District Judge.

The defendant Mitchell D. Osborne ("Osborne") has filed a pro se motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 (Court File No.1). Osborne contends that his judgment of conviction and sentence should be vacated, set aside, or corrected because he received ineffective assistance of counsel. Osborne claims counsel was ineffective when he failed to amend his appellate brief with an Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) claim and when he waived petitioner's right to a full transcript on appeal.

It plainly appears from the motion and the records of this case that the movant is not entitled to any relief. The Court will DENY Osborne's § 2255 for the following reasons.

I. Motions

Osborne has filed a virtually indecipherable motion to amend his § 2255 motion (Court File No. 8). Osborne requests that he be allowed to amend his § 2255 motion or "to argue amendment 4 during the evidentiary stage as to his minor role in the offense of the conspiracy." (Court File No. 8).

"Several elements may be considered in determining whether to permit an amendment. Undue delay in filing, lack of notice to the opposing party, bad faith by the moving party, repeated failure to cure deficiencies by previous amendments, undue prejudice to the opposing party, and futility of amendment are all factors which may affect the decision." Coe v. Bell, 161 F.3d 320, 341 (6th Cir.1998), cert. denied, 528 U.S. 842, 120 S.Ct. 110, 145 L.Ed.2d 93 (1999). In this case, the Court considers the futility of amendment in deciding whether to grant the Rule 15(a) motion to amend. See Coe v. Bell, 161 F.3d at 341; Moss v. United States, 323 F.3d 445, 476 (6th Cir.2003), petition for cert. filed, (July 24, 2003) (No. 03-148).

Presumably, Osborne is referring to Amendments to the United States Sentencing Guidelines ("U.S.S.G.") that Congress submitted in May of 2002 which took effect on November 1, 2002. It appears that Amendment 4 was renamed as Amendment 640 in the U.S.S.G. Manual Supplement to Appendix C. The Court assumes Osborne is claiming Amendment 640, which amended § 2D1.1(a)(3) to provide for a base level offense of not more than 30 for certain offenders if they received an adjustment for a mitigating role, should retroactively apply to his sentence.

This argument is without merit. There is nothing to indicate the amendments are to be applied retroactively. Under U.S.S.G. § 1B1.10, certain listed amendments to the Guidelines are to be given retroactive effect and a defendant may seek a reduction in his sentence because of these retroactive amendments under § 3582(c). However, Amendment 4, renamed as Amendment as 640, is not given retroactive effect under § 1B1.10. Since the Guidelines do not provide that Amendment 640 is to be given retroactive effect, Osborne may not obtain a reduction of his sentence. Moreover, Osborne's sentence did not include an adjustment for his role in the offense because it was determined that Osborne worked in conjunction with the other defendants in this case (Presentence Investigation Report "PSR", at 5). Since the group met and discussed how to distribute the cocaine base which was obtained from California, no role adjustment was warranted.

Consequently, Osborne's motion to amend (Court File No. 8) will be DENIED because such a claim is futile because Amendment 604 does not apply retroactively to cases pending on collateral review and because Osborne is not entitled to a role adjustment.

Also before the Court is Osborne's motion to supplement the record with authority from the Court of Appeals for the Second Circuit (Court File No. 9). Osborne requests the Court allow him to supplement with United States v. Guevara, 277 F.3d 111 (2nd Cir.2001) which he asserts he has attached.1 This Court is bound by decisions of the Court of Appeals for the Sixth Circuit. Moreover, the case Osborne wishes to file as a supplement has been amended and now supports the government's position more than Osborne's. In United States v. Guevara, 298 F.3d 124 (2nd Cir.2002), cert. denied, ___ U.S. ___, 123 S.Ct. 1613, 155 L.Ed.2d 337 (2003), the Second Circuit amended its decision and held that overwhelming evidence demonstrated the conspiracy involved an amount of heroin required to support the sentence, thus precluding the Court of Appeal's from exercising its discretion to correct plain error arising from the failure to submit the drug quantity issue to the jury. Accordingly, the motion to supplement the record (Court File No. 9) will be DENIED.

II. 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);2 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); Mayes v. United States, 93 F.Supp.2d 882, 887 (E.D.Tenn.2000). 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); Mayes, F.Supp.2d at 887; United States v. Johnson, 940 F.Supp. 167, 171 (W.D.Tenn.1996).

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, 114 S.Ct. 2291, 129 L.Ed.2d 277 (1994); Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (citation omitted) (§ 2254 case); Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (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). If the sentencing court lacked jurisdiction, 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, 99 S.Ct. 584, 58 L.Ed.2d 661 (1978). To warrant relief for a nonconstitutional error requires a showing of a fundamental defect in the proceedings that resulted in a complete miscarriage of justice or an egregious error inconsistent with the rudimentary demands of fair procedure. Reed v. Farley, 512 U.S. at 354, 114 S.Ct. 2291; Grant v. United States, 72 F.3d 503, 506 (6th Cir.), cert. denied, 517 U.S. 1200, 116 S.Ct. 1701, 134 L.Ed.2d 800 (1996).

"On 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, 113 S.Ct. 1710. "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, 102 S.Ct. 1584, 71 L.Ed.2d 816 (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). A defendant bears the burden of establishing any claim asserted in his § 2255 motion. Mayes, 93 F.Supp.2d at 886

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 claim asserted. Accordingly, the Court will decide the matter and explain the reasons petitioner's 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, 113 S.Ct. 2424, 124 L.Ed.2d 645 (1993).

III. Background

On February 15, 2000, a jury found Osborne not guilty of Count One3, and guilty of Count Two4 of the indictment. He was subsequently sentenced to the custody of the United States Bureau of Prisons to be imprisoned for a term of 240 months. Osborne appealed his conviction and sentence alleging violations of the Fifth Amendment's Due Process Clause and an error by this Court in calculating the sentence. The Sixth Circuit affirmed his conviction and sentence on January 22, 2002. United States v. Thomas, 28 Fed.Appx. 427 (6th Cir.2002). Osborne filed this pro se § 2255 motion on October 2, 2002.

IV. Facts

The following recitation of facts...

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