Adams v. United States of America

Filing 5

MEMORANDUM OPINION AND ORDER dismissing 1 motion to vacate, set aside or correct sentence (2255), and denying as moot movant's motion for writ of ad respondendum; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF MICHIGAN S O U T H E R N DIVISION

R A Y M O N D WILLIAM ADAMS, M o v a n t, File No. 1:08-CV-514 v. H O N . ROBERT HOLMES BELL U N IT E D STATES OF AMERICA, R e sp o n d e n t. / M E M O R A N D U M OPINION AND ORDER S U M M A R I L Y DISMISSING § 2255 MOTION T h is matter comes before the Court on Movant Raymond William Adams's motion to vacate sentence under the "Savings Clause" or modify sentence pursuant to 28 U.S.C. § 2255, ¶ 5. (Dkt. No. 1.) O n February 24, 2006, Movant entered a plea of guilty in this Court to one count of c o n s p ira c y to distribute and possess with intent to distribute heroin in violation of 21 U.S.C. § § 846, 841(a)(1), (b)(1)(C). United States v. Adams, File No. 1:05-CR-260 (Dkt. No. 87, T r. of Plea Hrg.). On July 12, 2006, Movant was sentenced to eighty-four months in prison a n d three years of supervised release. At the time of sentencing the Court granted the g o v e rn m e n t's motion to dismiss the remaining two counts of the indictment. Movant did not a p p e al his conviction or sentence. On June 2, 2008, Movant filed this § 2255 motion.

R u le 4(b) of the Rules Governing Section 2255 Proceedings for the United States D istric t Courts provides that if it plainly appears from the face of the § 2255 motion, exhibits a n d prior proceedings that the moving party is not entitled to relief, the judge shall make an o rde r for its summary dismissal. Upon initial consideration of this motion, it plainly appears th a t Movant is not entitled to relief. In order to obtain collateral relief under § 2255, a petitioner must clear a significantly h ig h e r hurdle than would exist on direct appeal. United States v. Frady, 456 U.S. 152, 166 (1 9 8 2 ). A petitioner is procedurally barred from raising claims in a § 2255 motion of even c o n stitu tio n a l or jurisdictional magnitude to which no contemporaneous objection was made o r which were not presented on direct appeal. Frady, 456 U.S. at 167-68; Nagi v. United S ta te s, 90 F.3d 130, 134 (6th Cir. 1996). "Where a defendant has procedurally defaulted a c la im by failing to raise it on direct review, the claim may be raised in habeas only if the d e f e n d a n t can first demonstrate either `cause' and actual `prejudice,' or that he is `actually in n o c e n t.'" Bousley v. United States, 523 U.S. 614, 622 (1998) (citations omitted). Movant's § 2255 motion was not timely filed. A one-year limitation period applies to § 2255 motions. 28 U.S.C. § 2255(f). Movant did not file this motion within one year of th e date on which his judgment of conviction became final, nor has he alleged facts to s u g g e s t that the limitations period should run from any later date. In addition, Movant explains that the purpose of his § 2255 motion is "to obtain relief f ro m the incorrect information used to calculate and impose the sentence." (Dkt. No. 1 at 3.)

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I n his first claim Movant asserts that his criminal history was incorrectly calculated because p a ra g ra p h s 155 and 156 of the Presentence Report gave him a point for each of two juvenile c o n v ic tio n s pursuant to U.S.S.G. § 4A1.2(d)(2)(B) even though the juvenile records and p o lic e reports had not been received. In his second claim Movant asserts that paragraph 167 o f the Presentence Report improperly added two points to his criminal history score pursuant to U.S.S.G. § 4A1.1(d) for being on probation at the time the instant offense was committed. A ll the facts and circumstances underpinning Movant's allegations were available to h im at the time of his sentencing hearing. Movant has procedurally defaulted these claims b y failing to raise them either at sentencing or on direct appeal. Movant's procedural default c a n n o t be excused because he has not demonstrated cause and prejudice or actual innocence to overcome the procedural hurdle for review. Accordingly, because it plainly appears from the face of the § 2255 motion, exhibits a n d prior proceedings that Movant is not entitled to relief, IT IS HEREBY ORDERED that Movant's motion to vacate or modify sentence p u r su a n t to 28 U.S.C. § 2255 (Dkt. No. 1) is SUMMARILY DISMISSED pursuant to Rule 4 (b ) of the Rules Governing § 2255 Proceedings in the United States District Courts. IT IS FURTHER ORDERED that Movant's motion for writ of ad respondendum ( D k t . No. 4) is DENIED as moot.

Dated: October 24, 2008

/s/ Robert Holmes Bell ROBERT HOLMES BELL UNITED STATES DISTRICT JUDGE

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