United States District Court, E.D. Michigan, Southern Division
Steven Whalen, United States Magistrate Judge
AND ORDER: (1) STAYING HABEAS PETITION PENDING THE OUTCOME OF
BECKLES V. UNITED STATES, (2) DENYING PETITIONER'S
MOTIONS FOR COUNSEL, MODIFICATION OF THE RECORD, AND RECUSAL,
AND (3) ADMINISTRATIVELY CLOSING THIS CASE UNTIL BECKLES V.
UNITED STATES IS DECIDED
HON. GERSHWIN A. DRAIN, United States District Court Judge
Joseph Sandlain, an incarcerated person, plead guilty to two
felonies and is currently serving his sentence in
Leavenworth, Kansas. Mr. Sandlain has eight pending motions
with the Court. Three motions involve Mr. Sandlain's
habeas corpus claims. See Dkt. Nos. 87, 89, and 90.
The other five motions involve appointment of counsel,
modification of the record, and recusal. See Dkt.
Nos. 94, 95, 96, 98, and 99. For the reasons that follow, the
Court will STAY Mr. Sandlain's habeas motion pending the
outcome of Beckles. The Court will DENY Mr.
Sandlain's Motions for counsel, modification and recusal.
April 28, 2014, a federal grand jury indicted Blake Joseph
Sandlain (“Petitioner” or “Mr.
Sandlain”) for: (1) being a felon in possession of a
firearm; (2) possession with the intent to distribute a
controlled substance; (3) maintaining drug-involved premises;
and (4) use a firearm in furtherance of a drug trafficking
crime. Dkt. No. 7. On September 9, 2014, this Court heard
argument on Mr. Sandlain's Motion to Suppress Evidence.
That hearing was adjourned, then continued on September 16,
2014. Dkt. No. 32.
September 16, 2014, this Court denied Mr. Sandlain's
Motion to Suppress. Dkt. No. 33. On January 8, 2015, Mr.
Sandlain entered into a plea agreement, which the Court
accepted. Dkt. No. 44. The Court sentenced Mr. Sandlain to
180 months imprisonment and supervised release for three
years. Dkt. No. 73. Mr. Sandlain did not appeal.
August 7, 2015, Mr. Sandlain moved to vacate his sentence
pursuant to 28 U.S.C. § 2255. See Dkt. No. 55.
This Court dismissed Mr. Sandlain's Section 2255 motion
with prejudice and did not issue a certificate of
appealability. Dkt. No. 72. On appeal, the Sixth Circuit
denied Mr. Sandlain's application for a certificate of
appealability and denied his motion to appoint counsel. Dkt.
No. 80. In its opinion, the Sixth Circuit indicated that
“Sandlain's classification as a career offender
during his sentencing proceedings might be affected by
Johnson v. United States, 135 S.Ct. 2551
Johnson, the Supreme Court held that the residual
clause of the Armed Career Criminal Act, that defines
“violent felony”, is unconstitutionally vague.
See Johnson, 135 S.Ct. at 2555, 2563. At the time of
Mr. Sandlain's sentencing, Section 4B1.2(a)(2) of the
Sentencing Guidelines contained identical language in its
definition of a “crime of violence”. Whether
Johnson applies to the Sentencing Guideline and
whether it will be retroactive will be decided by the Supreme
Court soon. See Beckles v. United States, 136 S.Ct.
2510 (2016). Based on Johnson and Beckles,
the Sixth Circuit authorized Mr. Sandlain to file a second
habeas motion because Mr. Sandlain “may be entitled to
relief from his career offender designation[.]” Dkt.
are currently eight motions pending before the Court: (1) Mr.
Sandlain's Application to file a Second or Successive
Motion to Vacate Sentence under 28 U.S.C. § 2255, Dkt.
No. 87; (2) Mr. Sandlain's Second or Successive Motion to
Vacate under 28 U.S.C. § 2255, Dkt. No. 89; (3) Mr.
Sandlain's Motion to Object to the Government Stay, Dkt.
No. 90; (4) Mr. Sandlain's Motion for Appointment of
Counsel, Dkt. No. 94; (5) Mr. Sandlain's Motion for
Correction or Modification of the Record, Dkt. No. 95; (6)
Mr. Sandlain's Motion to Remove the Beckles
Issue to Another Judge, Dkt. No. 96; (7) Mr. Sandlain's
Motion to Request Disposition of Appointment of Counsel, Dkt.
No. 98; and (8) Mr. Sandlain's Motion to Request
Disposition of Correction of the Record, Dkt. No. 99. The
Court will discuss each.
Mr. Sandlain's Motion to Remove the Beckles Issue to
motion filed on February 2, 2017, Mr. Sandlain requests that
the unresolved Beckles issue in this case “be
removed from Judge Gershwin Drain” and be placed
“before Chief Judge Rosen”. Dkt. No. 96, pp. 1, 6
(Pg. ID 632, 637). Mr. Sandlain argues that the Court is
personally biased against him.
at least the second time that Mr. Sandlain has argued that
this Court is personally biased against him. See
Dkt. No. 82, p. 6 (Pg. ID 552). Previously, Mr. Sandlain
argued that the Court was biased against him because the
Court denied Mr. Sandlain's initial Section 2255 Motion.
The Court previously explained to Mr. Sandlain,
“[r]eceing an adverse ruling does not mean the Court is
personally biased against Mr. Sandlain.” Dkt. No. 83,
p. 2 (Pg. ID 570). That statement remains true today.
to Mr. Sandlain, the Court's bias is evident in its
September 16, 2014 order, which denied Defendants' Motion
to Suppress. In that order, the Court recited the following
“In preparation for her routine parole home visit,
Officer Lopez-Glazer testified that she reviewed her file of
As a part of this review Officer Lopez-Glazer consulted
Sandlain's parole file, which contained Sandlain's
Offender Tracking Information System (“OTIS”) -
Offender Profile, which indicated that Defendant Sandlain had
given written consent to search his person and/or
property. Officer Lopez-Glazer ...