The opinion of the court was delivered by: William W. Caldwell United States District Judge
On December 9, 2008, Defendant Thomas A. Taylor, an inmate at FCI - Englewood, located in Littleton, Colorado, filed a motion pursuant to 28 U.S.C. § 2255 (doc. 56). The Government filed an opposition brief in response to our Order to Show Cause. After review, we will deny the motion.
On June 14, 2007, Taylor pleaded guilty to two counts charging him with Mail Fraud in violation of 18 U.S.C. §§ 1341, 1342 and Felon in Possession of Firearms in violation of 18 U.S.C. § 922(g)(1) & (2). (doc. 26). On December 11, 2007, he was sentenced to 46 months imprisonment and ordered to pay restitution in the amount of $29,096. (doc. 40). Taylor did not file an appeal. On October 23, 2008, on motion by the Government pursuant to Rule 35(b) of the Federal Rules of Criminal Procedure, Taylor's sentence was reduced to 40 months imprisonment.
In his motion, Taylor raised four grounds for relief:
(1) ineffective assistance of counsel, (2) errors in sentencing, (3) Apprendi violation, and (4) sentence entrapment. After an initial review, we granted Taylor leave to supplement his Apprendi claim because this ground for relief was vague and conclusory. We then reviewed his motion pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings. Pursuant to Rule 4(b), we dismissed his sentence entrapment claim, and we initially dismissed his Apprendi claim due to his failure to supplement. We then issued an Order to Show Cause on his remaining claims. After receiving notice that Taylor did not receive our Order granting him leave to supplement, we allowed him more time to perfect his Apprendi claim. However, the deadline for doing so has come and gone. Therefore, we will consider the following grounds for relief: (1) Apprendi claim, (2) error in sentencing claim, and (3) ineffective assistance of counsel claim.
As previously indicated, Taylor's Apprendi claim is vague and conclusory. Vague and conclusory allegations are insufficient for a section 2255 motion. United States v. Thomas, 221 F.3d 430, 437 (3d Cir. 2000); see also Rule 2(b)(2) of the rules governing section 2255 proceedings ("[t]he motion must . . . "state the facts supporting each ground" for relief). A district court may dispose of such allegations without further investigation or grant leave to amend so that the defendant can supply the necessary specificity. Thomas, 221 F.3d at 437-438. We have granted the Defendant ample time to supplement his so-called Apprendi claim. As indicated earlier, he has failed to do so and we will deny this ground for relief without further investigation.
B. Procedural Default and Sentencing Claims
As noted, Taylor did not pursue a direct appeal of his conviction or sentence. The Government argues that Taylor procedurally defaulted his sentencing claim by not challenging its validity on direct review. In addition, the Government argues that any attempt by Taylor to withdraw his guilty plea is also procedurally defaulted.
By failing to pursue an appeal, Taylor's claims concerning his sentence, the presentence report, the Court's denial of a continuance of sentencing (and any supposed attempt to withdrawal his guilty plea) are procedurally defaulted unless he can show cause and prejudice to excuse the default. "It is well settled that a voluntary and intelligent plea of guilty made by an accused person, who has been advised by competent counsel, may not be collaterally attacked." Bousley v. United States, 523 U.S. 614, 621, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998)(citations omitted). Additionally, the validity of a guilty plea can only be attacked on collateral review if it was first challenged on direct review. Id. Failure to raise a claim on direct appeal results in procedural default of the claim, foreclosing collateral review unless the prisoner can show cause excusing the default and actual prejudice resulting from the errors. United States v. Frady, 456 U.S. 152, 167-68, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). See also United States v. Essig, 10 F.3d 968, 979 (3d Cir. 1993). A defendant may also overcome a procedural default if he can show that he is "actually innocent." United States v. Garth, 188 F.3d 99, 106 (3d Cir. 1999)(citations omitted). Actual innocence, meaning factual rather than legal innocence, requires a defendant to establish that "in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him." Id. at 107 (quoting Bousley, 523 U.S. at 623).
The "cause" prong for an exception to procedural default requires a showing that "some objective factor external to the defense impeded counsel's efforts" to raise the claim. Essig, 10 F.3d at 979 (internal quotations omitted). To establish actual prejudice, a defendant must show "not merely that the errors at...trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." Frady, 456 U.S. at 170. It is well settled that a ...