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)

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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.) 2 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 3

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