United States District Court, W.D. Michigan, Southern Division
MEMORANDUM OPINION AND ORDER
L. MALONEY UNITED STATES DISTRICT JUDGE.
filed a motion to vacate, set aside, or correct sentence
under 28 U.S.C. § 2255 (ECF No. 1), arguing that the
Comprehensive Crime Control Act of 1984 (“the
Act”) was unconstitutionally enacted and that, as a
result, his conviction and custody are illegal. Movant filed
a memorandum in support of his motion to vacate, set aside,
or correct sentence (ECF No. 6), as well as several
supplements (ECF Nos. 8, 9, 16). The Government has filed a
response in opposition (ECF No. 17), and Movant has filed a
reply (ECF No. 21). For the reasons that follow, Movant's
§ 2255 motion is denied.
23, 2009, the Court sentenced Movant to 36 months in custody
and 5 years of supervised release for possession of images of
a minor engaging in sexually explicit conduct, in violation
of 18 U.S.C. § 2252(a)(4)(B). (United States v.
England, No. 1:08-cr-215 (W.D. Mich.), J., ECF No. 57.)
On May 2, 2013, the Court revoked Movant's supervised
released and imposed a 46-month term of supervised release.
(Id. at J. for Revocation, ECF No. 80.)
4, 2014, United States Probation Officer Smith visited
Movant's residence and found violations of the conditions
of supervised release. In response, Officer Smith filed a
supervised release violation petition, alleging that Movant
possessed child pornography, circumvented the probation
officer's efforts to conduct a plain-view search of his
home, accessed a computer, and lied to his probation officer
about not accessing a computer. (Id. at Supervised
Release Violation Pet., ECF No. 84.) On May 19, 2015, the
Court found Movant guilty of those violations. The probation
officer prepared an updated presentence report, and a
psychological evaluation was conducted. During the sentencing
hearing, Movant's daughter-in-law testified that she saw
that Movant had a computer. On June 23, 2015, the Court
sentenced Movant to the statutorily-mandated-minimum term of
5 years in custody. (Id. at J. for Revocation, ECF
No. 98.) Movant did not file a direct appeal. Rather, he
filed this § 2255 motion to vacate, set aside, or
prisoner who moves to vacate his sentence under § 2255
must show that the sentence was imposed in violation of the
Constitution or laws of the United States, that the court was
without jurisdiction to impose such a sentence, that the
sentence was in excess of the maximum authorized by law, or
that it is otherwise subject to collateral attack. 28 U.S.C.
§ 2255. To prevail on a § 2255 motion
“‘a petitioner must demonstrate the existence of
an error of constitutional magnitude which had a substantial
and injurious effect or influence on the guilty plea or the
jury's verdict.'” Humphress v. United
States, 398 F.3d 855, 858 (6th Cir. 2005) (quoting
Griffin v. United States, 330 F.3d 733, 736 (6th
errors are generally outside the scope of § 2255 relief.
United States v. Cofield, 233 F.3d 405, 407 (6th
Cir. 2000). A petitioner can prevail on a § 2255 motion
alleging non-constitutional error only by establishing a
“fundamental defect which inherently results in a
complete miscarriage of justice, or, an error so egregious
that it amounts to a violation of due process.”
Watson v. United States, 165 F.3d 486, 488 (6th Cir.
1999) (quoting United States v. Ferguson, 918 F.2d
627, 630 (6th Cir. 1990) (internal quotations omitted)).
general rule, claims not raised on direct appeal are
procedurally defaulted and may not be raised on collateral
review unless the petitioner shows either (1)
“cause” and “actual prejudice” or (2)
“actual innocence.” Massaro v. United
States, 538 U.S. 500, 504 (2003); Bousley v. United
States, 523 U.S. 614, 621-22 (1998); United States
v. Frady, 456 U.S. 152, 167-68 (1982). An ineffective
assistance of counsel claim, however, is not subject to the
procedural default rule. Massaro, 538 U.S. at 504.
An ineffective assistance of counsel claim may be raised in a
collateral proceeding under § 2255, whether or not the
petitioner could have raised the claim on direct appeal.
Comprehensive Crime Control Act
original petition, Movant argues that the Act was
unconstitutionally enacted; therefore, his conviction and
custody are illegal. Movant did not raise this issue on
direct appeal nor has he shown cause and prejudice or actual
innocence to excuse his procedural default. Thus, he is
barred from raising this claim.
Ineffective Assistance of Counsel
memorandum in support of his § 2255 motion, Movant adds
additional claims of ineffective assistance of counsel and
judicial misconduct. Once again, Movant does not offer any
reasons to show cause and prejudice or actual innocence as to
the new judicial misconduct claim, so that claim is
procedurally defaulted. In the several supplements filed,
Movant also raises claims of Miranda violations and
illegally-seized materials, both of which are also
procedurally defaulted. ...