United States District Court, W.D. Michigan, Southern Division
HOLMES BELL UNITED STATES DISTRICT JUDGE.
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.
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,
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.)
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
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.
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
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.
Collateral Attack Waiver
waived his right to collaterally attack his sentence.
Movant's plea ...