United States District Court, E.D. Michigan, Southern Division
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT'S MOTION TO VACATE, SET ASIDE, OR CORRECT
SENTENCE, AND DENYING CERTIFICATE OF
H. CLELAND UNITED STATES DISTRICT JUDGE.
before the court is Defendant David Lionel Hokes, Jr.'s
Motion to Vacate, Set Aside, or Correct Sentence under 28
U.S.C. § 2255 based on a retroactive, intervening change
in law. (Dkt. #42.) The Government has responded, (Dkt. #49),
and Defendant has replied, (Dkt. #50). Along with his reply,
Defendant filed a Motion for Retroactive Application of
Sentencing Guidelines Pursuant to 18 U.S.C. §
3582(c)(2), (Dkt. #51.), but requested that it be held in
abeyance until after resentencing on Superseding Count One.
The Government has not filed any response to this second
motion. For the following reasons, the court will grant in
part and deny in part Defendant's first motion and it
will not yet address Defendant's second motion.
was pulled over on July 5, 2006, and police administered a
test which determined his blood alcohol level to be 0.13.
Following a search of the car, they recovered a revolver from
the trunk. At the time, Defendant was a convicted felon and
was thus charged with possession of the firearm after having
been convicted of a felony offense. While released on bond
for this charge, Defendant then sold 28.7 grams of crack
cocaine to an undercover police informant. Thereafter, he was
charged by Grand Jury with: being a felon in possession of a
firearm and an armed career criminal (Superseding Count One);
distribution of crack cocaine (Superseding Count Two); and
commission of a federal offense while on release (Superseding
Count Three). Defendant entered a guilty plea on all three
superseding counts, and on June 17, 2008, was sentenced to
serve “180 months on Counts S1 and S2, to run
concurrent on 1 day on Count S3, to run consecutive to the
terms on Counts S1 and S2.” (Dkt. #39, Pg. ID 117.) No
appeal was filed before Defendant filed the instant petition
on October 29, 2015.
argues that his sentence as to Superseding Count One should
be vacated, as he should not have been sentenced as an Armed
Career Criminal. In support, he argues that one of his prior
convictions no longer qualifies as a crime of violence in
light of recent Supreme Court and Sixth Circuit case law.
Defendant reasons that since he now only has two prior
convictions, he is at least entitled to resentencing. In its
brief, the Government did not dispute this interpretation,
but it argues that the current 180-month sentence and
mandatory minimum under the Armed Career Criminal Act
(“ACCA”) is nonetheless appropriate, because the
parties had agreed to a sentencing range above that level. In
reply, Defendant argues that the mandatory minimum under the
ACCA or the previously agreed-upon range is irrelevant as his
new sentencing guideline range is 77 to 96 months.
also seeks to have his sentence as to Superseding Count Two
vacated under the Fair Sentencing Act of 2010. In opposition,
the Government argues that the filing was untimely, having
come more than one year after the judgment of his conviction
became final. It also argues that the Fair Sentencing Act
does not apply to individuals sentenced prior to August 3,
2010, such as Defendant. Defendant does not meaningfully
respond to these arguments, but indicates that he has filed a
motion for retroactive application on this offense to be held
in abeyance until after he is resentenced on Superseding
28 U.S.C. § 2255, a prisoner sentenced by a federal
court may “move the court which imposed the sentence to
vacate, set aside or correct the sentence” when
“the sentence was imposed in violation of the
Constitution or laws of the United States, or that the court
was without jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by law, or
is otherwise subject to collateral attack.” 28 U.S.C.
§ 2255. The defendant must demonstrate “the
existence of a fundamental defect which inherently results in
a complete miscarriage of justice, or an omission
inconsistent with the rudimentary demands of fair
procedure” in order to obtain relief. United States
v. Todaro, 982 F.2d 1025, 1030 (6th Cir. 1993) (citing
Hill v. United States, 368 U.S. 424, 428 (1962)).
has made a persuasive case for resentencing as to Superseding
Count One. The Supreme Court in Johnson v. United
States, held that the residual clause of the ACCA is
unconstitutionally vague. 135 S.Ct. 2551 (2015). The
Government readily agrees that Sixth Circuit precedent and
subsequent Supreme Court precedent is similarly in line with
resentencing on this count. See Mathis v. United
States, 136 S.Ct. 2243, 2245, 195 L.Ed.2d 604 (2016);
see also United States v. France, 394 F.App'x
246, 250 (6th Cir. 2010). Accordingly, the court will grant
Defendant's motion for resentencing on Superseding Count
other hand, it is just as plain that Defendant's request
for resentencing as to Superseding Count Two under §
2255 is time-barred. Defendant filed his petition more than
seven years after the court entered final judgment.
Plaintiff's petition was not time-barred as to
Superseding Count One because an exception to the one-year
limitations period exists for new rights recognized by the
Supreme Court after a conviction becomes final. See
Wiegand v. United States, 380 F.3d 890, 892-93 (6th Cir.
2004) (recognizing that “AEDPA established alternative
limitations periods, including one for new rights the Supreme
Court recognizes after the prisoner's conviction becomes
final” such that Defendant may file one year after
“the date on which the right asserted was initially
recognized by the Supreme Court . . .”). As conceded by
the government, such new rights exist for Superseding Count
One, but Defendant has made no showing that they exist for
Superseding Count Two. Thus, the court will grant
Defendant's motion for resentencing as to Superseding
Count One and deny the motion as to Superseding Count Two.
CERTIFICATE OF APPEALABILITY
order to appeal the court's decision, Defendant must
obtain a certificate of appealability. To obtain a
certificate of appealability, a prisoner must make a
substantial showing of the denial of a constitutional right.
28 U.S.C. § 2253(c)(2). To demonstrate this denial, the
applicant is required to show that reasonable jurists could
debate whether the petition should have been resolved in a
different manner, or that the issues presented were adequate
to deserve encouragement to proceed further. Slack v.
McDaniel, 529 U.S. 473, 483-84 (2000). A federal
district court may grant or deny a certificate of
appealability when the court issues a ruling on a motion
under Section 2255. Castro v. United States, 310
F.3d 900, 901 (6th Cir. 2002).
jurists of reason would not debate the court's analysis
with respect to any of Defendant's claims because they
are devoid of merit. The court ...