United States District Court, E.D. Michigan, Northern Division
ORDER DENYING AND DISMISSING WITHOUT PREJUDICE
REQUEST FOR RDAP PARTICIPATION
L. LUDINGTON, UNITED STATES DISTRICT JUDGE
November 2009, a grand jury in the Eastern District of
Michigan returned a forty-nine count indictment against
fifteen defendants accused of conspiring to distribute
cocaine and cocaine base near Bay City, Michigan, in
violation of 21 U.S.C. §§ 841(a)(1) and 846. When
the grand jury issued a second superseding indictment on
August 5, 2010, the alleged conspiracy grew to include
twenty-five defendants and fifty-eight criminal charges. ECF
No. 182. Terry Marshall was one of these twenty-five
April 16, 2012, Terry Marshall pled guilty to one count of
conspiracy to distribute twenty-seven grams of cocaine base.
Pursuant to the Rule 11 plea agreement she executed on that
date, Marshall agreed with the government that her sentencing
guideline range was 140 to 175 months. She further agreed
that under the sentencing guidelines, her total offense level
was 32 and her criminal history was category five. The
government, in return, agreed to withdraw its notice of prior
convictions filed pursuant to 18 U.S.C. § 851, which
would have imposed a statutory mandatory minimum of life in
prison for the offense charged in the information.
Marshall was sentenced to 140 months' imprisonment on
August 13, 2012. Her sentence was not mandatory, but was
calculated under the 2011 Guidelines Manual, which
incorporates the Fair Sentencing Act guideline amendments.
Marshall did not appeal the judgment, and therefore her
conviction became final on August 27, 2012. See
Sanchez-Castellano v. United States, 358 F.3d 424, 428
(6th Cir. 2004) (judgment of conviction becomes final when
the time for filing a notice of appeal expires).
two years later, on June 24, 2014, Marshall filed a motion to
vacate her sentence under 28 U.S.C. § 2255, asserting
that she received ineffective assistance when trial counsel
allowed her to plead guilty to a sentence that she did not
qualify for. ECF No. 690. Because Marshall's § 2255
petition did not comply with the one-year limitations period
set forth in §2255(f), the Court granted Respondent
United States' motion to dismiss the petition on February
24, 2015. ECF No. 732. The Sixth Circuit subsequently denied
Petitioner authorization to file a second or subsequent
§ 2255 raising claim under Johnson v. United
States, 135 S.Ct. 2551 (2015), finding that
Johnson has no impact on her status as a career
offender. See ECF Nos. 792, 818.
January 17, 2017 Petitioner Terry Marshall filed a document
entitled “request for the court to participate in a
[residential substance abuse] program.” See
ECF No. 820. Petitioner argues that her Presentence
Investigation Report (“PSR”) does not contain
sufficient information about her prior drug use for her to
qualify for the program. She acknowledges that she did not
discuss any drug addiction issues with the probation officer
at the time of her prosecution.
extent Petitioner Marshall requests that the Court amend her
PSR, her request will be denied. Once the district court has
heard objections to the report and has imposed sentence, the
district court's jurisdiction over the defendant becomes
very limited. See United States v. Warner, 23 F.3d
287, 290 (10th Cir. 1994). The Federal Rules of Criminal
Procedure provide that, “within 14 days after receiving
the presentence report, the parties must state in writing any
objections, including objections to material information,
sentencing guideline ranges, and policy statements contained
in or omitted from the report.” Fed. R. Crim. P.
32(f)(1). By failing to object to a PSR during sentencing, a
defendant accepts all factual allegations contained in it and
waives his right to challenge the reliability of facts
contained in a PSR on a later attack. United States v.
Vonner, 516 F.3d 382, 385 (6th Cir. 2008). A district
court does not have jurisdiction to hear a defendant's
post-sentence motions to correct his PRS. See United
States v. Engs, 884 F.2d 894 (5th Cir. 1989); See
also United States v. McKinney, 602 Fed.Appx. 237,
240-41 (6th Cir. 2015).
did not object to her PSR at or before her sentencing, and
therefore waived the right to challenge the facts contained
in her PSR at this time. See U.S. v. Leath, 711 F.2d
119 (8th Cir. 1983) (holding that a claimant's
“Motion to Correct Presentence Report” could not
be construed as a 28 U.S.C. § 2255 motion or a 28 U.S.C.
§ 2241 motion, and remanding the motion to be dismissed
for lack of jurisdiction). Her request in this regard will
therefore be denied.
also appears to request permission from this Court to
participate in a residential substance abuse program. A
federal prisoner challenging the administration of a
prison's residential drug abuse program may do so by
filing a habeas petition under 28 U.S.C. § 2241. See
Sesi v. U.S. Bureau of Prisons, 238 F.3d 423 (table)
(6th Cir. Dec. 7, 2000) (affirming district court's
treatment of a complaint challenging administration of a drug
abuse program as a § 2241 habeas corpus petition). A
petitioner must exhaust administrative remedies before
seeking federal habeas corpus relief pursuant to 28 U.S.C.
§ 2241. Little v. Hopkins, 638 F.2d 953, 954
(6th Cir. 1981). See also Watts v. Bogan, 50 F.3d 11
(table) (6th Cir. Mar. 14, 1995). The petitioner bears the
burden of establishing exhaustion. Rust v. Zent, 17
F.3d 155, 160 (6th Cir. 1994); Caver v. Straub, 349
F.3d 340, 345 (6th Cir. 2003). Yet, “[a] prisoner's
failure to exhaust available . . . administrative remedies
may be excused where pursuing such remedies would be futile
or unable to afford the petitioner the relief he
seeks.” Fazzini v. Ne. Ohio Corr. Ctr., 473
F.3d 229, 236 (6th Cir. 2006).
has not alleged that she exhausted her administrative
remedies. Nor has she argued that attempting to exhaust her
administrative remedies would be futile. Her ...