United States District Court, E.D. Michigan, Northern Division
ORDER OVERRULING OBJECTIONS, ADOPTING REPORT
AND RECOMMENDATION, DENYING PETITIONER'S
MOTION TO VACATE SENTENCE, AND DENYING GOVERNMENT'S
MOTION TO DISMISS AS MOOT
L. LUDINGTON, United States District Judge
September 2, 2015, Defendant Stephon Deleon Pickett pled
guilty to one count of distributing cocaine base in violation
of 21 U.S.C. § 841(a)(1). ECF Nos. 14. On December 10,
2015 Defendant Pickett was sentenced to 151 months of
imprisonment, 36 months of supervised release, and a special
assessment of $100. His sentence was based in part upon his
designation as a career offender. Judgment was entered on
December 15, 2015. ECF No. 20.
filed a notice of appeal on December 17, 2015. ECF Nos. 21,
22. While his appeal was pending, on May 2, 2016 Defendant
Pickett filed a motion to vacate his sentence pursuant to 28
U.S.C. § 2255, arguing that his designations a career
offender was rendered unconstitutional by the Supreme
Court's decision in Johnson v. United States,
135 S.Ct. 2551 (2015) (striking down the residual clause of
the Armed Career Criminal Act as unconstitutionally vague).
See ECF No. 29. That motion was referred to
Magistrate Judge Patricia T. Morris. See ECF No. 32.
On May 31, 2016 the Government moved to dismiss Pickett's
petition on the grounds that his appeal was still pending.
See ECF No. 34. Before the court decided that
motion, the Sixth Circuit dismissed Defendant's appeal
based on an appellate-waiver provision contained in his plea
agreement. See ECF No. 36.
December 8, 2016 the magistrate judge issued her report,
recommending that Defendant Pickett's motion to vacate be
denied. See ECF No. 37. The magistrate judge
reasoned that Johnson was inapplicable to
Defendant's conviction and sentence because Pickett's
career offender status was based upon two prior drug
convictions. Id. Picket filed objections on January
4, 2017. See ECF No. 38.
to Federal Rule of Civil Procedure 72, a party may object to
and seek review of a magistrate judge's report and
recommendation. See Fed.R.Civ.P. 72(b)(2). Objections must be
stated with specificity. Thomas v. Arn, 474 U.S.
140, 151 (1985) (citation omitted). If objections are made,
“[t]he district judge must determine de novo any part
of the magistrate judge's disposition that has been
properly objected to.” Fed.R.Civ.P. 72(b)(3). De novo
review requires at least a review of the evidence before the
magistrate judge; the Court may not act solely on the basis
of a magistrate judge's report and recommendation.
See Hill v. Duriron Co., 656 F.2d 1208, 1215 (6th
Cir. 1981). After reviewing the evidence, the Court is free
to accept, reject, or modify the findings or recommendations
of the magistrate judge. See Lardie v. Birkett, 221
F.Supp.2d 806, 807 (E.D. Mich. 2002).
Pickett first objects to the Magistrate Judge's finding
that his career offender status is based upon prior drug
convictions. This objection is without merit, as Defendant
Picket had three qualifying prior controlled substance
offenses under U.S.S.G. § 4B1.2 at the time of his
sentencing. The Supreme Court's decision in
Johnson therefore does not implicate his designation
as a career offender under U.S.S.G. § 4B1.1.
alternative, Defendant argues that he should be granted leave
to amend his motion to vacate to add a claim of ineffective
assistance of counsel. He argues that his appellate counsel
informed him that career offender status was based upon a
prior felony assault. Defendant's proposed amendment
would be futile. To show he was denied the effective
assistance of counsel under federal constitutional standards,
a petitioner must satisfy a two prong test. First, he must
demonstrate that, considering all of the circumstances,
counsel's performance was so deficient that the attorney
was not functioning as the “counsel” guaranteed
by the Sixth Amendment. Strickland v. Washington,
466 U.S. 668, 687 (1984). Second, a petitioner must show that
such performance resulted in prejudice. Id. To
demonstrate prejudice, a petitioner must show that
“there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the
proceeding would have been different.” Id. at
694. Because Petitioner has not demonstrated that he was
prejudiced by his appellate counsel's alleged advice, or
that he would have obtained a more favorable outcome but for
his counsel's alleged advice, his objections will be
it is ORDERED that Defendant Pickett's objections, ECF
No. 38, are OVERRULED.
further ORDERED that the magistrate judge's report and
recommendation, ECF No. 37, is ADOPTED.
further ORDERED that the Government's motion to dismiss,
ECF No. 34, is DENIED as moot.
further ORDERED that Defendant Pickett's motion to
vacate, ECF No. ...