United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER
DENYING DEFENDANT'S MOTION TO VACATE SENTENCE UNDER 28 U.S.C. § 2255 (DKT. 50)
AND DENYING A CERTIFICATE OF APPEALABILITY
MARK A. GOLDSMITH, District Judge.
Before the Court is Defendant Steven Scott Smiley, Jr.'s motion to vacate sentence, pursuant to 28 U.S.C. § 2255 (Dkt. 50). Defendant argues that he is innocent of the crime for which he was convicted, felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Defendant does not dispute that he possessed the firearm. Rather, Defendant claims that the 2007 state-court conviction that purportedly made it a federal crime for him to possess the gun in 2012 should not have counted, because he never served more than a year in jail. Id. at 5 (cm/ecf page). The Court now denies Defendant's motion, because it concludes Defendant misreads the applicable provision and cited authority.
A federal grand jury returned an indictment against Defendant on April 3, 2013, charging him with three counts of felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Indictment (Dkt. 10). The charges were based on three separate occasions of Defendant allegedly having possessed firearms. Id . The underlying conviction that purportedly made each of these instances of possession illegal was a January 26, 2007 conviction in Genesee County Circuit Court for carrying a concealed weapon. Id.
Defendant subsequently pled guilty pursuant to the terms of a Rule 11 plea agreement entered into between himself and the Government. Plea Agreement (Dkt. 25). Under the plea agreement, Defendant agreed to plead guilty to count two, and the Government agreed to dismiss counts one and three. That agreement also set forth the following stipulated facts:
On September 12, 2012, defendant knowingly possessed a firearm in the City of Flint, Eastern District of Michigan. Defendant was prohibited from possessing the firearm as he had been convicted of a crime punishable by a term of imprisonment for more than one year. Specifically, on or about January 26, 2007, defendant was convicted of carrying a concealed weapon in the 7th Circuit Court, Genesee County, a felony. Additionally, the firearm was manufactured outside the State of Michigan, and therefore crossed a state line prior to defendant's possession of it.
Id. at 2.
The Court sentenced Defendant to 71 months of imprisonment on January 21, 2014. See Judgment (Dkt. 49). Defendant filed the instant motion to vacate on August 20, 2014 (Dkt. 50). The Government filed a response (Dkt. 54), and Defendant filed a reply (Dkt. 55).
III. 28 U.S.C. § 2255 STANDARD
This motion is brought pursuant to 28 U.S.C. § 2255, which provides in pertinent part:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon 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, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
28 U.S.C. § 2255(a).
To prevail on a section 2255 motion, "a petitioner must demonstrate the existence of an error of constitutional magnitude which had a substantial and injurious effect or influence on the guilty plea or the jury's verdict." Humphress v. United States, 398 F.3d 855, 858 (6th Cir. 2005) (internal citation omitted). Non-constitutional errors are generally outside the scope of section 2255 relief. See United States v. Cofield, 233 F.3d 405, 407 (6th Cir. 2000). A movant can prevail on a section 2255 motion alleging non-constitutional error only by establishing "a fundamental defect which inherently results in a complete miscarriage of ...