United States District Court, E.D. Kentucky, Southern Division, Pikeville
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
EDWARD B. ATKINS, Magistrate Judge.
Montez Bridges brings this action pursuant to 28 U.S.C. § 2255 seeking to vacate, set aside, or correct his sentence. [R. 62]. Consistent with local practice, the matter has been referred to the undersigned to prepare a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons set forth herein, the Court recommends that Bridges' motion be denied.
II. FACTUAL & PROCEDURAL BACKGROUND
In October of 2007, while an inmate at the U.S. Penitentiary Big Sandy, Montez Bridges was charged by Indictment with one (1) count each of conspiracy to distribute methamphetamine, a schedule II controlled substance, in violation of 21 U.S.C. § 846, and conspiracy to defraud the United States, in violation of 18 U.S.C. § 371. [R. 2]. On March 5, 2008, Bridges pled guilty to the conspiracy to distribute methamphetamine charge, and the remaining conspiracy charge was dismissed upon motion of the United States. [R. 40]. Bridges entered into a non-binding plea agreement with the United States in which he waived his right to appeal and to collaterally attack his guilty plea, conviction, and sentence, including any order of restitution. [R. 37, at 4-5]. Thereafter, based on a total of thirteen (13) criminal history points which resulted in a criminal history category of VI and a total offense level of 15, the Court determined Bridges' guideline range of imprisonment to be 41-51 months. On August 20, 2008, the Court sentenced Bridges to a total of 51 months incarceration to run consecutively to the previously imposed sentence for which he was serving at U.S.P. Big Sandy, specifically including U.S. District Court (Chattanooga, Tennessee), cases #Ol-CR-7-02 and #Ol-CR-59-01, with three (3) years of supervised release to follow. [R. 56]. Bridges did not appeal his case to the Sixth Circuit Court of Appeals
Bridges now brings the instant Motion to Vacate [R. 62]. Therein, he argues that his criminal history category was computed incorrectly, and thus, he received an incorrect sentence. He specifically claims that he incorrectly received four (4) criminal history points for four (4) misdemeanor offenses. According to Bridges, his "criminal history points were raised by crimes that were not federal felonies, thus not meeting the federal felony statute' of 1 year and 1 day." [Id. at 2]. Bridges cites the following charges which he believes gave rise to the incorrect computation:
(1) Possession/Carrying Firearm within City Limits - sentenced to 30 days time served, Sessions Court - (2001), Chattanooga, TN.
(2) Possession of Crack Cocaine for Resale - sentenced to 11 months, 29 days, Sessions Court - (1998) Chattanooga, TN.
(3) Criminal Impersonation - sentenced to 6 months (1997-98) Criminal Impersonation - sentenced to 6 months (1998)
(4) Evading Arrest - sentenced between 6 months-11 months 29 days, Chatt, TN (1998)
[Id. at 1]. Bridges also cites "Simmons v. United States, (4th Cir. Enhancement decision: and" Miller v. United States , (Supreme Court Decision)" as "newly established law, " inquiring as to whether this case law applies to his case.
Because it is clear from the record alone that Bridges is not entitled to habeas relief, the undersigned did not order the Government to respond to the pending motion.
III. STANDARD OF REVIEW
Federal prisoners must file any motion to vacate within one (1) year of the date on which: 1) the judgment of conviction becomes final; 2) a governmental impediment to making the motion is removed; 3) a right was initially recognized by the Supreme Court, if that right was newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or 4) the facts supporting the claim could have been discovered with due diligence. 28 U.S.C. § 2255 (f)(1)-(4)). To prevail upon a motion for habeas relief under 28 U.S.C. § 2255, prisoners must allege that: 1) their conviction resulted from an error of constitutional magnitude; 2) their sentence was imposed outside the statutory limits; or 3) an error of fact or law occurred that was so fundamental as to render the entire proceedings invalid. Mallett v. United States , 334 F.3d 491, 496-97 (6th Cir. 2003), cert. denied, 540 U.S. 1133 (2004); see also Moss v. United States , 323 F.3d 445, 454 (6th Cir.), cert. denied, 540 U.S. 879 ...