United States District Court, W.D. Michigan, Southern Division
HOLMES BELL, UNITED STATES DISTRICT JUDGE
matter comes before the Court on Movant Gomez's motion to
vacate, set aside or correct sentence pursuant to 28 U.S.C.
§ 2255. (ECF No. 1.) On August 29, 2016, the Government
filed a response in opposition. (ECF No. 5.) On October 11,
2016, Movant filed a brief in support of his § 2255
motion. (ECF No. 6.) For the reasons that follow,
Movant's § 2255 motion is denied.
August 7, 2014, Movant pleaded guilty to aggravated felon
reentry, in violation of 8 U.S.C. §§ 1326(a),
(b)(2), and 1101(a)(43)(A). This Court sentenced Movant to 36
months in custody. Movant filed a direct appeal, arguing that
he received an excessive sentence because the Court
improperly applied a 16-level enhancement under U.S.S.G.
§ 2L1.2(b)(1)(A)(ii). On October 9, 2015, a divided
panel of the Sixth Circuit affirmed the sentence, holding
that Movant's prior conviction was a crime of violence.
United States v. Gomez, 628 F. App'x 400, 406-07
(6th Cir. 2015). Subsequently, Movant filed this motion to
vacate, set aside or correct sentence raising claims of
ineffective assistance of counsel for failure to argue that
the Michigan conviction for criminal sexual conduct with a
minor was not an aggravated felony under 8 U.S.C. §
1101(a)(43)(A) and was not a crime of violence under 18
U.S.C. § 16(b).
prisoner who moves to vacate his sentence under § 2255
must show that the sentence was imposed in violation of the
Constitution or laws of the United States, that the court was
without jurisdiction to impose such a sentence, that the
sentence was in excess of the maximum authorized by law, or
that it is otherwise subject to collateral attack. 28 U.S.C.
§ 2255. To prevail on a § 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) (quoting
Griffin v. United States, 330 F.3d 733, 736 (6th
errors are generally outside the scope of § 2255 relief.
United States v. Cofield, 233 F.3d 405, 407 (6th
Cir. 2000). A petitioner can prevail on a § 2255 motion
alleging non-constitutional error only by establishing a
“fundamental defect which inherently results in a
complete miscarriage of justice, or, an error so egregious
that it amounts to a violation of due process.”
Watson v. United States, 165 F.3d 486, 488 (6th Cir.
1999) (quoting United States v. Ferguson, 918 F.2d
627, 630 (6th Cir. 1990) (internal quotations omitted)).
general rule, claims not raised on direct appeal are
procedurally defaulted and may not be raised on collateral
review unless the petitioner shows either (1)
“cause” and “actual prejudice” or (2)
“actual innocence.” Massaro v. United
States, 538 U.S. 500, 504 (2003); Bousley v. United
States, 523 U.S. 614, 621-22 (1998); United States
v. Frady, 456 U.S. 152, 167-68 (1982). An ineffective
assistance of counsel claim, however, is not subject to the
procedural default rule. Massaro, 538 U.S. at 504.
An ineffective assistance of counsel claim may be raised in a
collateral proceeding under § 2255, whether or not the
petitioner could have raised the claim on direct appeal.
argues that his criminal sexual conduct conviction no longer
qualifies as an aggravated felony under 8 U.S.C. §
1101(a)(43)(A) or a crime of violence under 18 U.S.C. §
16(b) in light of Johnson v. United States, 135
S.Ct. 2551 (2015), and Welch v. United States, 136
S.Ct. 1257 (2016) (holding that Johnson applied
retroactively). In Johnson, the Supreme Court held
that the residual clause of the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e), was
unconstitutional. But Johnson and Welch do
not apply because Movant was not convicted of a violation
under § 922(g), and he was not sentenced under any
provision of § 924, including its residual clause.
Rather, Movant pleaded guilty to being present in the United
States after having been removed subsequent to his conviction
of an aggravated felony under 8 U.S.C. §§ 1326(a)
and (b)(2). “[T]he Johnson opinion itself
stressed that its reasoning did not control other statutes
that refer to predicate crimes.” United States v.
Taylor, 814 F.3d 340, 378 (6th Cir. 2016). The basis for
Movant's conviction is not related to the ACCA's
residual clause; therefore, Movant's Johnson
claim is meritless.
a § 2255 motion “may not be used to relitigate an
issue that was raised on appeal absent highly exceptional
circumstances, ” DuPont v. United States, 76
F.3d 108, 110 (6th Cir. 1996) (internal citations and
quotation marks omitted), or “an intervening change in
the case law, ” Wright v. United States, 182
F.3d 458, 467 (6th Cir. 1999). Movant argues that he received
an excessive sentence because the Court improperly applied a
16-level enhancement under U.S.S.G. § 2L1.2. The
Government contends that this claim must be denied because
Movant previously raised it on appeal and the Sixth Circuit
rejected it. The Court agrees. Gomez, 628 F.
App'x at 406-07 (“Based on the foregoing, we hold
that Gomez's conviction under Mich. Comp. Laws §
750.520d(1)(a) of criminal sexual conduct in the third degree
qualifies as a forcible sex offense and, thus, a crime of
violence under U.S.S.G. § 2L1.2.”).
has not shown that highly exceptional circumstances exist nor
has he shown an intervening change in the case law relevant
to his sentencing. Although the Sixth Circuit has held that
the definition of a “crime of violence” in 8
U.S.C. § 1101(a)(43)(F) is also unconstitutionally
vague, Shuti v. Lynch, 828 F.3d 440, 447 (6th Cir.
2016), Movant was not convicted or sentenced under §
1101(a)(43)(F). Nor did the Court rely on the definition of a
violent crime in 18 U.S.C. § 16 for his sentence
enhancement. Rather, the Court sentenced Movant based on the
specific predicate offense of sexual abuse of a minor under
§ 1101(a)(43)(A), as enumerated in U.S.S.G. §
2L1.2, Appl. Note 2. Neither Johnson nor
Shuti affected this enhancement. Thus, Movant has
not shown any intervening change in case law relevant to his
also raises two ineffective assistance of counsel claims.
There is a two-prong test to evaluate claims of ineffective
assistance of counsel. Strickland v. Washington, 466
U.S. 668, 687-88 (1984). A defendant must prove that (1)
counsel's performance fell below an objective standard of
reasonableness; and (2) counsel's deficient performance
prejudiced the defendant resulting in an unreliable or
fundamentally unfair outcome. Id. A court
considering a claim of ineffective assistance must
“indulge a strong presumption that counsel's
conduct falls within a wide range of professional
assistance.” Id. at 689. Movant bears the
burden of proof for each prong, and the Court may dismiss a
claim of ineffective assistance if he fails to carry his
burden of proof on either element. Strickland, 466
U.S. at 687, 697.
had the same attorney for his plea, sentencing, and direct
appeal. He argues that he had ineffective assistance of
counsel because his attorney failed to argue that his
Michigan conviction was not an aggravated felony or crime of
violence during sentencing. But counsel objected to the
16-level enhancement in his sentencing memorandum, arguing
that Movant's criminal sexual conduct conviction was not
a crime of violence. (Gomez, No. 1:14-cr-101,
Sentencing Mem. 2-4, ECF No. 23, PageID.54-56.) His attorney