United States District Court, E.D. Michigan, Southern Division
ORDER DENYING DEFENDANT'S MOTION TO VACATE SENTENCE UNDER 28 U.S.C. § 2255, ORDER DISMISSING CIVIL CASE NO. 14-11971, ORDER DENYING CERTIFICATE OF APPEALABILITY, and ORDER DENYING DEFENDANT'S MOTION TO AMEND
DENISE PAGE HOOD, District Judge.
Following a jury trial, Petitioner Defendant was convicted of one count of possession with intent to distribute 171 pounds of marijuana and one count of possession with intent to distribute more than seven kilograms of cocaine in violation of 21 U.S.C. § 841(a)(1). Defendant was sentenced to concurrent terms of 144 months on each count. Defendant appealed his conviction [Criminal Case No. 10-20770, Docket No. 42, July 24, 2012]. The Sixth Circuit Court of Appeals affirmed Defendant's conviction. United States v. Rodgers, 536 F.App'x 621 (6th Cir. 2013).
Now before the Court is Defendant's Motion to Vacate Sentence under 28 U.S.C. § 2255 [Criminal Case No. 10-20770, Docket No. 54, filed May 16, 2014]. The Government filed a Response [Criminal Case No. 10-20770, Docket No. 61, filed August 13, 2014]. Defendant filed a Reply to the Response [Criminal Case No. 10-20770, Docket No. 64, filed January 6, 2014]. For the reasons stated below, Defendant's Motion to Vacate Sentence is DENIED.
Also before the Court is Defendant's Motion to Amend the Motion to Vacate Sentence under 28 U.S.C. § 2255 [Criminal Case No. 10-20770, Docket No. 65, filed January 21, 2015]. For the reasons stated below, Defendant's Motion to Amend is DENIED.
Section 2255 authorizes a federal prisoner to move the district court to vacate a sentence. 28 U.S.C. § 2255(a). Motions brought under 28 U.S.C. § 2255 are subject to a one-year limitations period established by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Dunlap v. United States, 250 F.3d 1001, 1004-05 (6th Cir. 2001). The AEDPA established a one-year limitations period for § 2255 motions, generally running from "the date on which the judgment of conviction becomes final." 28 U.S.C. § 2255(f)(1). When a movant does not pursue a direct appeal to the court of appeals, the conviction becomes final on the date the time for filing such an appeal expires. Sanchez-Castellano v. United States, 358 F.3d 424, 428 (6th Cir. 2004).
Relief is procedurally barred when a petitioner fails to raise an issue at trial or on direct appeal, unless such petitioner can satisfy the "cause and prejudice" standard. United States v. Frady, 456 U.S. 152, 162-66 (1982). In order to satisfy this standard, a petitioner must demonstrate cause for his failure to object or raise the issue on direct appeal, and he must show that he suffered actual prejudice as a result of the alleged error. Id. Only after both cause and prejudice have been shown will the Court address the merits of the claim raised. Id. Sentencing errors not raised on direct appeal are subject to this cause and prejudice standard. See O'Neil v. United States, 992 F.2d 1217 (6th Cir. 1993). In addition, petitioner must raise all appealable issues on direct appeal, and may not use § 2255 as a substitute for a direct appeal. Frady, 456 U.S. at 165.
Generally, "a defendant may not raise ineffective assistance of counsel claims for the first time on direct appeal, since there has not been an opportunity to develop and include in the record evidence bearing on the merits of the allegations." United States v. Wunder, 919 F.2d 34, 37 (6th Cir. 1990). The proper procedure for a petitioner to raise a claim for ineffective assistance of counsel is to proceed under 28 U.S.C. § 2255. Id.
The Government claims that Petitioner's Motion should be dismissed because he failed to raise the issue of ineffective assistance of counsel at sentencing or on direct appeal. The Court disagrees. Petitioner followed the correct procedure in raising the issue in a § 2255 motion.
Under the Sixth Amendment, a defendant has a right to "have the Assistance of Counsel for his defence." U.S. Const. Amend. VI. A defendant under the Sixth Amendment has a right to "reasonably effective assistance of counsel." Strickland v. Washington, 466 U.S. 668, 687 (1984). In Strickland, the Supreme Court articulated a two prong test for ineffective counsel:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction... resulted from a breakdown of the adversary process that renders the result unreliable.
Id. "There is a strong presumption that legal counsel is competent." United States v. Osterbrock, 891 F.2d 1216, 1220 (6th Cir. 1989). In addition, a "reviewing court must give a highly deferential scrutiny to counsel's performance." Ward v. United States, 995 F.2d 1317, 1321 (6th Cir. 1993). "The reasonableness of counsel's performance is to be evaluated from counsel's perspective at the time of the alleged error and in light of all the circumstances." Kimmelman v. Morrison, 477 U.S. 365, 384 (1986). "The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. On appeal, the law does not "compel appointed counsel to press nonfrivolous points requested by the client, if counsel, as a matter of professional judgment, decides not to present those points." Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 3312, 77 L.Ed.2d 987 (1983).
In his Motion to Vacate Sentence under 28 U.S.C. § 2255 [Criminal Case No. 10-20770, Docket No. 54, filed May 16, 2014], Rodgers claims he received ineffective assistance of counsel based on his counsel's failure to force the Government to produce the confidential informant at trial or to verify that the confidential informant existed. Rodgers claims that he told counsel that the agents were lying and that they did not have an ...