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Jamar Ivee Street v. United States

United States District Court, W.D. Michigan, Southern Division

December 20, 2016

JAMAR IVEE STREET, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION

          ROBERT HOLMES BELL UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court on Movant Jamar Ivee Street's motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. (ECF No. 1.) On November 22, 2016, the Government filed a response in opposition. (ECF No. 5.) For the reasons that follow, Movant's § 2255 motion is denied.

         I.

         On June 28, 2011, a grand jury indicted Movant on three counts; first, felon in possession of a firearm, second, possession of a firearm in furtherance of a drug-trafficking crime, and third, possession of cocaine base with intent to distribute. On September 15, 2011, Movant pleaded guilty to the first and third counts in a written plea agreement. The written agreement contained a waiver of appeal and collateral attack, which provides:

Defendant understands that the law affords Defendant the right to appeal the sentence imposed. Acknowledging this, Defendant knowingly waives the right to appeal his sentence (and the manner in which the sentence was imposed) on the grounds set forth in Title 18, United States Code, Section 3742. Nevertheless, as a matter of law, Defendant retains the right to appeal a sentence that exceeds the statutory maximum or is based upon an unconstitutional factor, such as race, religion, national origin or gender. Defendant acknowledges that this waiver is in exchange for the substantial concessions made by the United States Attorney's Office in this Plea Agreement as enumerated in paragraphs 5A and 5B, including the significant benefit conferred upon the Defendant through the promise to dismiss Count 2, a violation of Title 18, Section 924(c), which allows Defendant to avoid being sentenced to mandatory minimum consecutive sentence of five years' imprisonment. Defendant also waives the right to challenge such a sentence and the manner in which it was determined in any collateral attack, including but not limited to, a motion brought under Title 28, United States Code, Section 2255 (except a challenge that goes to the validity of his waiver, such as a claim that the waiver was involuntary or the product of ineffective assistance of counsel). This Agreement does not affect in any way the right of the United States Attorney's Office to appeal the sentence imposed by the Court.

(United States v. Street, No. 1:11-cr-194, Plea Agreement, ¶ 9, ECF No. 16, PageID.36.)

         On January 13, 2012, the Court sentenced Movant to 120 months on Count 1, and a reduced sentence of 12 months on Count 3, to run consecutively, for a total sentence of 132 months. There were no objections to the sentence, and the Court informed Movant of his limited right to appeal and collaterally attack his sentence based on the terms of his plea agreement. Movant appealed his conviction and sentence to the Sixth Circuit Court of Appeals. On August 12, 2012, the Sixth Circuit denied Movant's appeal. (United States v. Street, No. 1:11-cr-194, USCA Order, ECF No. 26, PageID.95.) The court found that Movant waived his right to appeal his sentence, and that his appeal was without merit. (Id., PageID.96.) Movant did not file a petition for certiorari.

         On November 23, 2013, Movant filed a “motion for appropriate relief, ” arguing that the Court erroneously sentenced Movant on Counts 1 and 2, rather than Counts 1 and 3. (United States v. Street, No. 1:11-cr-194, ECF No. 30, PageID.106.) He also argued that the sentences for each count should have run concurrently, rather than consecutively. (Id. at PageID.105.) The Court denied the motion, finding Movant's claim were without merit because the Court properly sentenced him on Counts 1 and 3. (United States v. Street, No. 1:11-cr-194, ECF No. 40, PageID.141.) On November 14, 2014, Movant filed a pro se motion for reduction of sentence under Guideline Amendment 782. The Court denied that motion because Movant was sentenced under the career-offender guidelines, which were not affected by the amendment. (United States v. Street, No. 1:11-cr-194, ECF No. 38, PageID.137.) On September 19, 2016, Movant filed this motion to vacation, set aside, or correct his sentence under § 2255. (ECF No. 1.)

         II.

         A 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 Cir. 2003)).

         As a 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. Id.

         III.

         A. Collateral Attack Waiver

         Movant waived his right to collaterally attack his sentence. Movant's plea ...


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