United States District Court, E.D. Michigan, Southern Division
OPINION & ORDER DENYING § 2255 MOTION AND
DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY
Sean F. Cox, Judge
Criminal Case Number 12-20218, Petitioner Adriane Foster
(“Petitioner”) pleaded guilty, pursuant to a Rule
11 Plea Agreement, to two counts of Robbery Affecting
Interstate Commerce, in violation of 18 U.S.C. § 1915,
and two counts of Using or Carrying a Firearm During and in
Relation to a Federal Crime of Violence, in violation of 18
U.S.C. § 924(c). (Doc. # 96, Rule 11 Plea Agreement).
This Court sentenced Petitioner to a total term of 240
matter is now before the Court on Petitioner's pro
se Motion to Vacate Sentence, (Doc. # 399, Pet. Br.),
brought pursuant to 28 U.S.C. § 2255. Petitioner's
request for relief is based upon the Supreme Court's
decision in Johnson v. United States, 135 S.Ct. 2251
(2015), which held that the residual clause of the Armed
Career Criminal Act (“ACCA”) was
unconstitutionally vague. The Government has filed a response
opposing Petitioner's motion, (Doc. #55, Gov. Resp.).
Petitioner has filed a reply to the Government's
response. (Doc. # 416, Pet. Reply).
the files and records of the case conclusively establish that
Petitioner is not entitled to relief as to any of the claims
set forth in this § 2255 motion, an evidentiary hearing
is not necessary and the decision is therefore ready for a
decision by this Court. For the reasons set forth below,
Petitioner's motion to vacate will be DENIED. Moreover,
the Court declines to issue a certificate of appealability.
April 18, 2013, Petitioner pleaded guilty “to Counts
Seven, Eight, Nine and Ten of the Second Superseding
Indictment which charge two counts each of Robbery Affecting
Interstate Commerce and Using or Carrying a Firearm During
and in Relation to a Federal Crime of Violence.” (Rule
11 Plea Agreement at ¶ 1A).
February 19, 2014, this Court sentenced Petitioner to 40
months on each, Counts 7 and 9, to run concurrent to each
other, to 80 months on Count 8, to run consecutive to all
other Counts, and to 120 months on Count 10, to run
consecutive to all other counts, for a total term of 240
months of imprisonment. (Doc. # 282). Petitioner did not file
a direct appeal.
August 16, 2016, Petitioner filed a Motion to Vacate
Sentence, brought pursuant to 28 U.S.C. § 2255. (Doc. #
399). Petitioner seeks to have his convictions vacated in
light of Johnson. The Government has filed a
response in opposition (Doc. # 408) and Petitioner has filed
a reply. (Doc. # 416).
motion is brought pursuant to 28 U.S.C. § 2255, which
A prisoner in custody under a sentence of a court established
by Act of Congress claiming the right to be released upon the
ground that the sentence imposed was in violation of the
Constitution or laws of the United States, or that the court
was without jurisdiction to impose such a sentence, or that
the sentence was in excess of the maximum authorized by law,
or is otherwise subject to collateral attack, may move the
court which imposed the sentence to vacate, set aside, or
correct the sentence. 28 U.S.C. § 2255(a). To prevail on
a § 2255 motion, “a petitioner must demonstrate
the existence of an error of constitutional magnitude which
has 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). A
movant 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.
Court must hold an evidentiary hearing on a § 2255
motion “[u]nless the motion and the files and records
of the case conclusively show that the prisoner is entitled
to no relief . . . .” 28 U.S.C. § 2255(b);
Blanton v. United States, 94 F.3d 227, 235 (6th Cir.
1996) (“evidentiary hearings are not required when . .
. the record conclusively shows that the petitioner is
entitled to no relief.”). Because the files and records
of the case conclusively show that Petitioner is not entitled
to relief as to any of the claims in this § 2255 motion,
an evidentiary hearing is not necessary and the matter is
ripe for a decision by this Court.
Government opposes Petitioner's motion on two alternative
grounds: (1) the motion is untimely; and (2) even if timely,
Johnson's holding does not extend to §
924(c) convictions. The Court agrees that Petitioner's
motion is time-barred by the AEDPA's one-year statute of
limitations. Moreover, even if timely, Petitioner's
motion fails on the ...