United States District Court, W.D. Pennsylvania
OPINION AND ORDER
MAURICE B. COHILL, JR. SENIOR UNITED STATES DISTRICT JUDGE
Presently before the Court is Petitioner James Lamont Johnson's Motion to Vacate, Set Aside, or Modify Sentence under 28 U.S.C. § 2255, filed at Criminal No. 12-52 Erie [ECF No. 98]. The Government has filed a Response to the Motion [ECF No. 102].
Mr. Johnson was charged with one count of Possession of an Unregistered Firearm, in violation of 26 U.S.C. § 5861(d). On May 17, 2013, Mr. Johnson was convicted by ajury of the charge in the indictment. On October 7, 2013, this Court sentenced Mr. Johnson to a term of imprisonment of 120 months with 3 years of supervised release to follow. Mr. Johnson appealed his sentence to the United States Court of Appeals for the Third Circuit, which affirmed the conviction and sentence on September 16, 2014. See United States v. Johnson. 578 Fed.Appx. 150 (3d Cir. 2014).
II. Standard of Review Under 28 U.S.C. § 2255
Section 2255 of Title 28 of the United States Code provides a means of collaterally attacking a sentence imposed after a conviction. See United States v. Cannistraro. 734 F.Supp. 1110, 1119 (D. N.J. 1989), affd 919 F.2d 133 (3d Cir. 1990), cert, denied 500 U.S. 916 (1991).
Pursuant to 28 U.S.C. § 2255, a federal prisoner may move the sentencing court to vacate, set aside, or correct a sentence:
[U]pon the ground 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 (2012). Relief under this provision is "generally available only in 'exceptional circumstances' to protect against a fundamental defect which inherently results in a complete miscarriage of justice or an omission inconsistent with the rudimentary demands of fair procedure." United States v. Gordon, 979 F.Supp. 337, 339 (E.D. Pa. 1997) (quoting Hill v. United States, 368 U.S. 424, 428 (1962).
When a Motion is made under 28 U.S.C. § 2255, the question of whether to order a hearing is committed to the sound discretion of the district court. In exercising that discretion, the court must accept the truth of Petitioner's allegations unless they are clearly frivolous on the basis of the existing record. See United States v. Day. 969 F.2d 39, 41-42 (3d Cir. 1992). Further, the court must order an evidentiary hearing to determine the facts unless the motion, files, and records of the case show conclusively that the petitioner is not entitled to relief See Id.; Gordon. 979 F.Supp. at 339.
We find no need for an evidentiary hearing here, as the record conclusively establishes that Mr. Turner is not entitled to the relief sought in the petition. See 28 U.S.C. § 2255. Accordingly, we will deny his motion for an evidentiary hearing.
Mr. Johnson raises two grounds for relief: (1) actual and factual innocence, and (2) illegal arrest [ECF No. 98 at 5, 6]. Specifically, he alleges as to actual and factual innocence that: "I was never afforded the opportunity to present evidence that will demonstrate my innocence....Neither of my attorneys' [sic] pursued my claims and did not challenge the Governments [sic] claims to bring these fabricated charges." [ECF No. 98 at 5]. Further, he alleges as to illegal arrest that: "There was no arrest warrants issued for my arrest PRIOR to [the] indictment." [ECF No. 98 at 6 (emphasis in original)].
Initially, Mr. Johnson is procedurally barred from raising both claims, as they could have been raised on direct review but were not. See Bousley v. United States. 523 U.S. 614, 621 (1998). Claims not raised in the district court and not raised on direct appeal are defaulted and may not be raised in a Section 2255 motion except under very specific circumstances. Id. "Where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can first demonstrate either 'cause' and actual 'prejudice, ' or that he is 'actually innocent.'" Id. at 622 (citing Murray v. Carrier, 477 U.S. 478, ...