Filed: Jan. 09, 2015
Latest Update: Jan. 09, 2015
Summary: REPORT AND RECOMMENDATIONS MICHAEL R. MERZ, Magistrate Judge. This case is before the Court upon the filing of a pro se Motion under 28 U.S.C. 2255 to Vacate, Set Aside, or Correct Sentence (Doc. No. 97). The Motion is before the Court for initial review pursuant to Rule 4(b) of the Rules Governing 2255 Cases which provides: The judge who receives the motion must promptly examine it. If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that t
Summary: REPORT AND RECOMMENDATIONS MICHAEL R. MERZ, Magistrate Judge. This case is before the Court upon the filing of a pro se Motion under 28 U.S.C. 2255 to Vacate, Set Aside, or Correct Sentence (Doc. No. 97). The Motion is before the Court for initial review pursuant to Rule 4(b) of the Rules Governing 2255 Cases which provides: The judge who receives the motion must promptly examine it. If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that th..
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REPORT AND RECOMMENDATIONS
MICHAEL R. MERZ, Magistrate Judge.
This case is before the Court upon the filing of a pro se Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (Doc. No. 97). The Motion is before the Court for initial review pursuant to Rule 4(b) of the Rules Governing § 2255 Cases which provides:
The judge who receives the motion must promptly examine it. If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party. If the motion is not dismissed, the judge must order the United States to file an answer, motion, or other response within a fixed time, or take other action the judge may order.
The Motion is referred, as are all habeas corpus and § 2255 motions, to the undersigned by the Dayton General Order of Reference.
The docket in this case reflects that Letner was indicted by the grand jury for this District on May 10, 2005 (Doc. No. 19). The case was tried to a jury in February 2006 and Letner was convicted on Counts 1, 2, 3, and 4, but acquitted on Counts 5 and 6 (Minute Entry, Doc. No. 70). Following a presentence investigation, Letner was sentenced to an aggregate sentence of 441 months, supervised release, and restitution (Doc. Nos. 75, 76). Letner appealed and the Sixth Circuit affirmed. United States v. Letner, 273 Fed. Appx. 491 (6th Cir. 2008). The instant Motion followed on January 8, 2015.
A prisoner seeking relief under 28 U.S.C. § 2255 must allege either "(1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law that was so fundamental as to render the entire proceeding invalid" Mallett v. United States, 334 F.3d 491, 496-97 (6th Cir. 2003). In other words, to warrant relief under § 2255, a prisoner must demonstrate the existence of an error of constitutional magnitude which had a substantial and injurious effect of influence on the guilty plea or the jury's verdict. Griffin v. United States, 330 F.3d 733, 737 (6th Cir. 2006), citing Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). To obtain relief under 28 U.S.C. § 2255, a defendant must establish the denial of a substantive right or defect in the trial that is inconsistent with the rudimentary demands of fair procedure. United States v. Timmreck, 441 U.S. 780 (1979); United States v. Ferguson, 918 F.2d 627, 630 (6th Cir. 1990)(per curiam). Relief under 28 U.S.C. § 2255 is available when a federal sentence was imposed in violation of the Constitution or laws of the United States or the trial court was without jurisdiction or the sentence is in excess of the maximum sentence allowed by law, or is "otherwise subject to collateral attack." United States v. Jalili, 925 F.2d 889, 893 (6th Cir. 1991).
Letner does not plead that his conviction was the result of any constitutional error. Instead, he seeks placement in some kind of sentence reduction program or drug treatment in lieu of incarceration (Motion, Doc. No. 97, PageID 1559). This sort of relief is not available under 28 U.S.C. § 2255. On that basis, the Motion should be dismissed without prejudice for failure to state a claim on which relief can be granted under § 2255. Because reasonable jurists would not disagree with this conclusion, Petitioner should be denied a certificate of appealability and the Court should certify to the Sixth Circuit that any appeal would be objectively frivolous and therefore should not be permitted to proceed in forma pauperis.
