United States District Court, E.D. Michigan, Southern Division
OPINION & ORDER DENYING § 2255 MOTION (Doc.
# 417), DENYING MOTION FOR APPOINTMENT OF COUNSEL (Doc. #
388), AND DECLINING TO ISSUE A CERTIFICATE OF
F. Cox U.S. District Judge
Criminal Case Number 12-20218, Petitioner Raymond Adams
(“Petitioner”) pleaded guilty, pursuant to a Rule
11 Plea Agreement, to one count of Robbery Affecting
Interstate Commerce, in violation of 18 U.S.C. § 1951
and one count of Using or Carrying a Firearm During a Federal
Crime of Violence; Aiding and Abetting, in violation of 18
U.S.C. § 924(c). (Doc. # 374, Rule 11 Plea Agreement).
This Court sentenced Petitioner to a total term of 90 months.
(Doc. # 387).
matter is now before the Court on Petitioner's pro
se letter, construed by the Court as a Motion to Vacate
Sentence brought pursuant to 28 U.S.C. § 2255. (Doc. #
417, Pet. Br.). Petitioner's request for relief is based
upon the Supreme Court's decisions in Rosemond v.
United States, 135 S.Ct. 1240 (2014), which clarified
what is necessary to aid and abet a violation of §
924(c) and 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. # 409, Gov't
Resp.). Petitioner has not filed a reply to the
Government's response and time to do so has passed.
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. The motion is therefore ready for a
decision by this Court. For the reasons set forth below,
Petitioner's motion to vacate will be
DENIED and Petitioner's motion for
appointment of counsel is DENIED AS MOOT.
Moreover, the Court declines to issue a certificate of
December 10 2014, Petitioner pleaded guilty, pursuant to a
Rule 11 Plea Agreement, “to Counts One and Two of the
Sixth Superseding Indictment, which charge 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).
Court sentenced Petitioner to 6 months on Count 1 and to 84
months on Count 2, to run consecutively with the sentenced
imposed on Count 1. (Doc. # 387). Petitioner did not file a
25, 2016, Petitioner filed a pro se letter, titled
“Motion to be Appointed Counsel.” (Doc. # 388).
Petitioner requested counsel in light of the Supreme
Court's ruling in Johnson v. United States. On
May 19, 2016, Petitioner filed a second pro se
letter, which the Court has construed as a Motion to Vacate
Sentence pursuant to 28 U.S.C. § 2255. (Doc. # 417). In
it, Petitioner asserts that his § 924(c) aiding and
abetting conviction must be vacated in light of Rosemond
v. United States and Johnson v. United States.
The Government filed a brief in opposition to the motion on
September 29, 2016. (Doc. # 409).
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. 1999).
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