United States District Court, E.D. Michigan, Southern Division
AND ORDER GRANTING THE GOVERNMENT'S AMENDED MOTION FOR
RECONSIDERATION (DKT. 41); VACATING THIS COURT'S
SEPTEMBER 14, 2016 OPINION & ORDER (DKT. 39); DENYING
DEFENDANT'S MOTION TO VACATE HIS SENTENCE (DKT. 31); AND
GRANTING A CERTFICATE OF APPEALABILTIY
A. GOLDSMITH United States District Judge.
filed a motion to vacate his sentence under 28 U.S.C. §
2255 (Dkt. 31), invoking the Supreme Court's recent
decision in Johnson v. United States, 135 S.Ct.
2551, 2557 (2015). This Court granted that motion on
September 14, 2016 (Dkt. 39). In the process, the Court
rejected the Government's argument that the collateral
attack waiver contained within Defendant's Rule 11 Plea
Agreement (Dkt. 26) precluded the challenge to his sentence.
See 9/14/2016 Order at 3-6.
Government timely filed a motion for reconsideration,
continuing to argue that Defendant's collateral attack
waiver should be given dispositive effect (Dkt. 41). The
issues have been fully briefed, and a hearing was held on the
motion on October 21, 2016. The Court agrees with the
Government that, based on Sixth Circuit authority supplied
during the briefing on the motion for reconsideration, the
Court's initial opinion cannot be squared with that
authority. Accordingly, the September 14, 2016 order is
vacated, the motion for reconsideration is granted, and
Defendant's § 2255 motion is denied.
STANDARD OF DECISION
Federal Rules of Civil Procedure do not provide for a
“motion for reconsideration, ” but the local
rules in the Eastern District of Michigan do. See
E.D. Mich. L.R. 7.1(h). The local rule explains that the
decision to grant the motion is within the court's
discretion. To establish grounds for reconsideration,
“[t]he movant must not only demonstrate a palpable
defect by which the court and the parties . . . have been
misled but also show that correcting the defect will result
in a different disposition of the case.” E.D. Mich.
Plea Agreement, Defendant acknowledged that he
“knowingly and voluntarily waive[d] that right [to
collaterally attack his sentence] and agree[d] not to contest
his conviction or sentence in any post-conviction proceeding,
including - but not limited to - any proceeding under 28
U.S.C. § 2255.” Plea Agreement at 8.
This Court's Prior Basis for Rejecting the
Government's Waiver Argument
setting aside Defendant's waiver insofar as his argument
is based upon Johnson, this Court relied on
United States v. McBride, 826 F.3d 293 (6th Cir.
2016), a recent case that was before the Sixth Circuit on
direct appeal. In that case, the plea agreement memorialized
an “understanding” that the defendant would be
sentenced as a career offender because “he had at least
two prior crimes of violence convictions.” Id.
at 294. The court noted that this language could function as
a waiver of most challenges to his sentence; nevertheless,
the court held that “a defendant can abandon only
‘known rights, '” id. at
295 (quoting United States v. Olano, 507 U.S. 725,
733 (1993)) (emphasis in original), and that the defendant
“could not have intentionally relinquished a claim
based on Johnson, which was decided after his
sentencing, ” id.
its view that McBride applied to Defendant's
case, this Court stated:
The Government argues that McBride should be
distinguished from the instant case because “there is a
world of difference between what was essentially an
implied waiver by agreeing to guideline calculations
[i.e., McBride] versus an
affirmative waiver of one's statutory right to
collaterally challenge a conviction.” Gov't Resp.
at 7 (emphasis added). But the Government does not explain
what this “world of difference” might be; nor
does it offer any authorities drawing the distinction that
the Government invites the Court to make. There does not
appear to be anything about a broad waiver of one's
statutory right to collaterally challenge a conviction that
is somehow more worthy of enforcement than a defendant's
waiver of the right to collaterally attack a “career
9/14/2016 Order at 4.
to the briefing on the Government's motion for
consideration, however, this Court is now aware of United
States v. Alford, 436 F.3d 677 (6th Cir. 2006);
United States v. Amiker, 414 F.3d 606 (6th Cir.
2005); and United States v. Puckett, 422 F.3d 340
(6th Cir. 2005). Those cases draw a clear distinction between
the Guidelines-specific waiver seen in McBride and
the broad appeal/collateral attack waiver seen here.
Alford explained: “The plea agreement in
[United States v. Bradley, 400 F.3d 459, 463 (6th
Cir. 2005)] contained language by which the defendant agreed
to be sentenced under the Guidelines and also a
clause waiving the defendant's right to appeal.”
Alford, 436 F.3d at 679 (emphasis added).
“[T]he agreement presently before [the Alford]
court . . . contains no waiver of appeal clause. The absence
of such a waiver is dispositive.” Id. at 680.
“The mere fact that the defendant agreed to be, and
was, sentenced pursuant to the Sentencing Guidelines, does
not preclude him from raising on appeal an alleged
Booker error regarding his sentence.”
Id. (citing Puckett, 422 at 343
(“Puckett did not expressly waive his right to appeal
in the plea agreement, and thus the current situation falls
outside the reach of Bradley. The mere fact that
Puckett agreed to be, and was, sentenced pursuant to ...