UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE AT GREENEVILLE UNITED STATES OF AMERICA, ) Respondent, ) ) ) v. ) No: 2:06-CR-10 ) No: 2:11-CV-312 THEODORE A. HOGAN, ) Petitioner. ) MEMORANDUM OPINION This matter is before the Court on the motion of Theodore A. Hogan (“petitioner” or “Hogan”) To Vacate, Set Aside Or Correct Sentence Under 28 U.S.C § 2255, [Doc. 113].1 The United States has responded in opposition, [Doc. 121], and the petitioner has replied, [Doc. 127]. The matter is now ripe for disposition. The Court has determined that the files and records in the case conclusively establish that the petitioner is not entitled to relief under § 2255 and, therefore, no evidentiary hearing is necessary. For the reasons which follow, petitioner’s § 2255 motion lacks merit and will be DENIED.2 I. Procedural and Factual Background On March 14, 2006, the federal grand jury returned a four count indictment charging Hogan in Counts One, Two and Three with distribution of heroin and in Count Four with possession with intent to distribute dihydrocodeine, [Doc. 3]. On January 8, 2008, a superseding indictment was returned by the grand jury adding a fourth count of distribution of heroin and renumbering the original Count Four as Count Five, [Doc. 10]. On February 7, 2008, the United 1 All references are to docket entries in case No. 2:06-CR-10. 2 Petitioner has also filed a motion to expedite consideration of his petitioner under 28 U.S.C. § 2255, [Doc. 129]. The Clerk is directed to terminate the motion as MOOT. 1 Case 2:06-cr-00010-JRG Document 131 Filed 01/12/15 Page 1 of 23 PageID #: <pageID> States filed an information pursuant to 21 U.S.C. § 851(a)(1) giving notice of its intention to seek increased punishment by reason of two prior felony drug convictions, i.e., on November 14, 1994, in the United States District Court for the Eastern District of Tennessee, in case number 2:94-CR-46, of distribution of LSD, and on July 14, 1995, in the Criminal Court of Washington County, Tennessee, in case number 21078, of possession of hashish, [Doc. 21]. After extensive motion practice in the case, the case proceeded to a jury trial on June 10-11, 2008. The jury returned its verdict on June 11, 2008, and Hogan was convicted on Counts One through Four, [Doc. 70]. A presentence investigation report (“PSR”) was completed. The probation office determined that Hogan was a career offender based on his two prior felony drug convictions, resulting in an advisory guidelines range of 262 to 327 months of imprisonment. A sentencing hearing was held on November 17, 2008 and the Court imposed a sentence of 262 months, the bottom of the guidelines range. Judgment was entered on December 3, 2008, [Doc. 83], and Hogan’s notice of appeal was filed on December 4, 2008, [Doc. 84]. On November 4, 2010, the Sixth Circuit Court of Appeals affirmed Hogan’s convictions and sentence, [Doc. 102]. Hogan then timely filed the instant motion to vacate under 28 U.S.C. § 2255 on October 17, 2011. The following facts are taken from the opinion of the Sixth Circuit Court of Appeals: In November 2004 First Judicial District Drug Task Force agents Chris Pierce and Eric Borchgrevink outfitted confidential informant Roger Greenwell with money and a listening device and sent him to a residence in Carter County, Tennessee to purchase drugs from Kim Probst. Probst was not home when Greenwell arrived at her house, but as Greenwell left Probst’s property Defendant approached him and offered to sell him two bags of heroin. Providing Greenwell with his phone number, Defendant added that in the future he could sell Greenwell a bundle of heroin for $300. Greenwell returned to the agents, who searched Greenwell and took the heroin Greenwell had just purchased from Defendant. 2 Case 2:06-cr-00010-JRG Document 131 Filed 01/12/15 Page 2 of 23 PageID #: <pageID> Agents arranged two additional transactions between Defendant and Greenwell. Before each transaction, agents searched Greenwell, outfitted him with a listening device, and provided him with recorded currency. After each transaction, agents searched Greenwell, and recovered the heroin. During the November 5, 2004 transaction the agents surveilling the buy observed a blue Ford Taurus registered to Defendant pull up alongside Greenwell’s vehicle. The agents watched and listened as Defendant sold Greenwell a bundle of heroin. After the transaction’s completion, the agents pulled into the gas station to get a closer look at Defendant. Agent Pierce made mental note of Defendant’s appearance and the fact that he was wearing a blue Adidas jacket. The final transaction on November 10, 2004 was at Greenwell’s apartment. The primary purpose of this transaction was to arrest Defendant while he possessed the recorded currency. The transaction’s secondary purpose was to arrest Greenwell for Greenwell’s unrelated criminal activity based on information provided to agents from another informant, known as “Slim.” The agents observed Defendant’s blue Ford Taurus parked at Greenwell’s apartment complex. They also observed Greenwell and Defendant enter the complex. Agent Pierce arrested Defendant as he was leaving Greenwell’s apartment upon the transaction’s completion. Agents searched Defendant’s pockets incident to his arrest, and found eight bags of heroin, fourteen Lortab tablets, and $300 bearing the same serial numbers logged by the agents. Agents’ subsequent search of Defendant’s car revealed a large knife, several sandwich baggies fastened with a rubber band, three additional baggies containing heroin residue, and a blue Adidas jacket. Once Defendant was in custody, Agent Borchgrevink entered Greenwell’s apartment and recovered the heroin Greenwell purchased from Defendant, removed the listening device from Greenwell’s person, and arrested Greenwell on the unrelated charges. II. Standard of Review This Court must vacate and set aside petitioner’s 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 3 Case 2:06-cr-00010-JRG Document 131 Filed 01/12/15 Page 3 of 23 PageID #: <pageID> constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, . .” 28 U.S.C. § 2255. Under Rule 4 of the Governing Rules, the Court is to consider initially whether the face of the motion itself, together with the annexed exhibits and prior proceedings in the case, reveal 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); 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.” O’Malley, 285 F.2d at 735 (citations omitted). 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). 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. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (citation omitted) (§ 2254 case); 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 (1978). To warrant relief for a non-constitutional error, petitioner must show a fundamental defect in the proceeding 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. 339, 354 (1994); Grant v. United States, 72 F. 3d 503, 506 (6th Cir.), cert. denied, 517 U.S. 1200 (1996). In order to obtain collateral relief under § 2255, a 4 Case 2:06-cr-00010-JRG Document 131 Filed 01/12/15 Page 4 of 23 PageID #: <pageID> petitioner must clear a significantly higher hurdle than would exist on direct appeal. United States v. Frady, 456 U.S. 152 (1982). The Sixth Amendment provides, in pertinent part, “[i]n all criminal prosecutions, the accused shall enjoy the right . to have the Assistance of Counsel for his defense.” U.S. Const. amend. VI. A defendant has a Sixth Amendment right not just to counsel, but to “reasonably effective assistance” of counsel. Strickland v. Washington, 466 U.S. 668, 687 (1984). In Strickland, the Supreme Court set forth a two-pronged test for evaluating claims of ineffective assistance of counsel: First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.