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United States of America v. Donte Parrish

December 21, 2011

UNITED STATES OF AMERICA, RESPONDENT
v.
DONTE PARRISH, PETITIONER



The opinion of the court was delivered by: Chief Judge Kane

MEMORANDUM ORDER

Currently pending before the Court is Petitioner Donte Parrish's motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. (Doc. No. 68.) For the reasons that follow, the Court will deny Petitioner's Section 2255 motion.

I. BACKGROUND

On October 19, 2005, Petitioner was indicted by a grand jury for possession of a firearm in furtherance of drug trafficking and for being a felon in possession of a firearm. (Doc. No. 1.) He was arrested on March 4, 2005, based on a warrant issued for Petitioner on other outstanding matters. (Doc. No. 49.) He was located at a residence, at which officers located four firearms, approximately $1,000 in cash, a gram of crack cocaine, two bags of marijuana, and multiple Percocet pills. The Government contends that officers obtained consent to search the residence from Petitioner's ex-girlfriend.*fn1 Petitioner confessed to ownership of the guns and drugs. On March 14, 2006, Petitioner signed a written guilty plea as to the offense of possession of a firearm in furtherance of drug trafficking. (Doc. No. 22.)

On April 11, 2006, Petitioner appeared before the Court and entered his guilty plea.

After the Court engaged Petitioner in a colloquy to ensure that he was entering his plea knowingly, voluntarily, and intelligently, the Court accepted the plea. (See Doc. No. 31.) On January 22, 2007, the Court sentenced Petitioner to 180 months of incarceration, three years of supervised release, and a $100 special assessment.*fn2 (Doc. No. 52.) Petitioner filed a notice of appeal on January 30, 2007, and his counsel filed an Anders motion and supporting brief. (Doc. Nos. 52, 54.) The Third Circuit affirmed the voluntariness of the guilty plea and reasonableness of the sentence. United States v. Parrish, 287 F. App'x 990 (3d Cir. 2008).

On June 10, 2011, Petitioner filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. Petitioner filed a notice of election on July 26, 2011, choosing to proceed with his Section 2255 motion. (Doc. No. 71.) On October 17, 2011, the United States filed a brief in opposition to Petitioner's motion. (Doc. No. 74.) On November 14, 2011, the Court received a reply brief from Petitioner, dated November 7, 2011. (Doc. No. 75.) The motion is now ripe for disposition.

II. STANDARD OF REVIEW

Under 28 U.S.C. § 2255, a federal prisoner may move the sentencing court to vacate, set aside, or correct the prisoner's sentence on the grounds that:

The sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack . . . .

28 U.S.C. § 2255. In evaluating a § 2255 motion, "the court must accept the truth of the movant's factual allegations unless they are clearly frivolous on the basis of the existing record." United States v. Booth, 432 F.3d 542, 545-46 (3d Cir. 2005).

Morever, the decision whether to hold a hearing when a prisoner moves to vacate a judgment under § 2255 is left to the sound discretion of the district court. Virgin Islands v. Forte, 865 F.2d 59, 62 (3d Cir. 1989). Where the record affirmatively indicates that a petitioner's claim for relief is without merit, the claim may be decided on the record without a hearing. See Virgin Islands v. Nicholas, 759 F.2d 1073, 1075 (3d Cir. 1985); Page v. United States, 462 F.2d 932, 933 (3d Cir. 1972). Thus, if the record, supplemented by the trial judge's personal knowledge, conclusively negates the factual predicates asserted in support of a § 2255 motion, or if the movant would not be entitled to relief as a matter of law even if the factual predicates as alleged in the motion are true, it is not an abuse of discretion to elect not to conduct an evidentiary hearing. See Nicholas, 759 F.2d at 1075. "[B]ald assertions and conclusory allegations do not afford a sufficient ground for an evidentiary hearing." Mayberry v. Petsock, 821 F.2d 179, 185 (3d Cir. 1987).

III. DISCUSSION

In the instant motion, Petitioner claims that his counsel was ineffective for: (1) failing to look into whether his ex-girlfriend consented to search her house; and (2) failing to seek suppression his confession. Petitioner also argues that he is actually innocent of violating 18 U.S.C. ยง 924(c). Because Petitioner's Section 2255 motion was filed over one year after his judgment ...


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