United States District Court, E.D. Michigan, Southern Division
ORDER DENYING MOTION TO VACATE SENTENCE UNDER 28 U.S.C. § 2255
VICTORIA A. ROBERTS, District Judge.
Cordell Sain, a prisoner at the Federal Correctional Institute in Milan, Michigan, filed a pro se motion to vacate his sentence under 28 U.S.C. §2255 (§2255). Sain filed two previous motions to vacate; both were denied.
Sain brings this motion based upon the Report and Recommendation by the Honorable Mona K. Majzoub issued in connection with Sain's §2255 motion in a contemporary case (07-CR-20607), assigned to the Honorable Lawrence P. Zatkoff ("Zatkoff case"). In the Zatkoff case Sain was convicted of: (1) possessing marijuana with intent to distribute; (2) being a felon in possession of a firearm; and, (3) possessing a firearm in furtherance of a drug trafficking offense (07-CR-20607, Doc. 21). Sain was represented by retained counsel Rowland Short in the Zatkoff case; Short also represented Sain and his brother in the case before this Court.
The Report and Recommendation was critical of Short's representation of Sain in the Zatkoff case and this one, but only made a recommendation in the Zatkoff case. In this motion to vacate, Sain relies on the order by Judge Zatkoff, adopting that portion of the Report and Recommendation, that Sain be given the opportunity to accept the last best plea offer because of Short's ineffectiveness and failure to present the plea offer to Sain (07-CR-20607, Doc. 64). Short represented Sain through his conviction.
After Sain's conviction in the Zatkoff case, Sain made an oral motion with Judge Roberts for the withdrawal of attorney Short. Judge Roberts granted this motion. On August 25, 2008, the parties agreed to a continuance of the trial date and a finding of excludable delay because of the appointment of new counsel and to allow time for effective trial preparation (Doc. 174). In harmony with the stipulation, Judge Roberts entered an amended Criminal Trial Notice and Standing Order (Doc. 189). The order consisted of a new: (1) plea cut-off date; (2) trial date and time; (3) motion deadline; (4) motion hearing date; (5) motions in limine deadline; and, (6) pretrial conference and hearing on motions and limine date.
On October 7, 2008, Sain asked for new counsel in the Zatkoff case for purposes of sentencing. That request was granted; Martin Crandall was appointed. Sain filed a §2255 motion in the Zatkoff case which resulted in the Report and Recommendation critical of attorney Short in both the Zatkoff case and this one, and which provided Sain with his ground for filing this motion to vacate.
Sain has not met his burden of proof under §2255. He fails to show deficient performance of counsel and prejudice. For the reasons set forth below, Sain's motion to vacate his sentence under §2255 is DENIED. Further, Sain's request for new appointed counsel and an evidentiary hearing is DENIED.
II. PROCEDURAL HISTORY
Sain was sentenced to a statutory mandatory minimum 20-year sentence for conspiracy to possess and possession with intent to distribute one ton of marijuana, following his conviction by a jury (Doc. 296).
Sain's first motion to vacate, filed September 9, 2012, was for leave to file a §2255 motion because he had missed the filing date. He alleged excusable neglect (Doc. 358). The Court denied Sain's motion; it found his excusable neglect argument based on health challenges unpersuasive.
This Court denied Sain's motion to reconsider, filed on November 19, 2012 (Doc. 363). Sain argued - unpersuasively - that the Court miscalculated his deadline to file a habeas petition.
A. The Court Has Jurisdiction Over Sain's ...