United States District Court, W.D. Michigan, Southern Division
HOLMES BELL UNITED STATES DISTRICT JUDGE
matter comes before the Court on Movant's “motion
for resentencing pursuant to Johnson v. U.S.”,
which this Court has construed as a motion to vacate, set
aside or correct sentence under 28 U.S.C. § 2255. (ECF
No. 1.) On August 22, 2016, the Government filed a response
in opposition. (ECF No. 4.) For the reasons that follow,
Movant's § 2255 motion is denied.
February 29, 2012, Movant pleaded guilty to aggravated felon
reentry, in violation of 8 U.S.C. §§ 1326(a),
(b)(2), and 1101(a)(43)(B). This Court sentenced Movant to 60
months in custody. Movant filed a direct appeal, arguing that
the sentence was substantively unreasonable. On April 24,
2015, the Sixth Circuit unanimously affirmed his sentence.
Subsequently, Movant filed this motion raising a claim of
improper sentence enhancement based on Johnson v. United
States, 135 S.Ct. 2551 (2015).
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).
argues that the Court erroneously enhanced his sentence by
construing prior convictions as violent felonies under the
Armed Career Criminal Act (“ACCA”), 18 U.S.C.
§ 924. In Johnson, the Supreme Court held that
the residual clause of the ACCA, § 924(e), was
unconstitutional. Johnson, 135 S.Ct. at 2563. The
Government argues that Johnson is not relevant to
Movant's sentence, and the Court agrees. Movant was not
convicted of a violation of § 922(g), and he was not
sentenced under any provision of § 924, including its
residual clause. Rather, he was convicted of being present in
the United States after removal for an aggravated felony
conviction in violation of 8 U.S.C. § 1326(a), (b)(2).
predicate aggravated felony was a California conviction of
possession for sale of cocaine. (United States v.
Mederos-Burgos, No. 1:14-cr-1, PSR ¶ 34, ECF No.
20, PageID.52.) Movant received a 16-level enhancement for
this prior drug-trafficking offense. (Id. at ¶
18, PageID.50.) At sentencing, his attorney mistakenly stated
that the 16-level enhancement was for a crime of violence.
(Mederos-Burgos, No. 1:14-cr-1, Sent. Tr. 4, ECF No.
26, PageID.99.) But the Court relied upon Movant's drug
trafficking offense for the enhancement, not any crimes of
violence. (Id. at PageID.105-06.) Further, the
aggravated felony relied upon by the government and cited in
the indictment was § 1101(a)(43)(B), which applies to
illicit trafficking of a controlled substance, including a
drug-trafficking crime. This Court did not enhance
Movant's sentence under the residual clause of the ACCA,
so Johnson is inapposite, and Movant's claim is
reasons stated above, Movant's motion to vacate, set
aside, or correct the sentence imposed upon him by this Court
will be denied. Because the Court finds that the
“motion and the files and records of the case
conclusively show that the prisoner is entitled to no relief,
” 28 U.S.C. § 2255(b), no evidentiary hearing is
to 28 U.S.C. § 2253(c), the Court must also assess
whether to issue a certificate of appealability. To warrant
the grant of a certificate of appealability, Movant
“must demonstrate that reasonable jurists would find
the district court's assessment of the constitutional
claims debatable or wrong.” Slack v. McDaniel,
529 U.S. 473, 484 (2000). The Sixth Circuit has disapproved
of the issuance of blanket denials of a certificate of
appealability. Murphy v. Ohio, 263 F.3d 466 (6th
Cir. 2001). Rather, the district court must “engage in
a reasoned assessment of each claim” to determine
whether a certificate is warranted.” Id. at
467. Because Movant cannot make a substantial ...