United States District Court, E.D. Michigan, Southern Division
K. MAJZOUB MAGISTRATE
OPINION AND ORDER DENYING MOTION TO ALTER OR AMEND
JUDGMENT  AND DENYING MOTION TO GRANT § 2255 MOTION
AND APPOINT COUNSEL 
STEPHEN J. MURPHY, III United States District Judge.
Michael Keller, confined at the Milan Federal Corrections
Institute in Milan, Michigan, moves to alter or set aside the
Court's order adopting the magistrate judge's report
and recommendation ("Report") and denying his
motion for relief under 28 U.S.C.
2255. See ECF 117. He also requests that the Court
appoint counsel and grant his § 2255 motion in light of
the Supreme Court's decisions in Johnson v. United
States, 135 S.Ct. 2551 (2015) and Welch v. United
States, 136 S.Ct. 1257 (2016). For the following
reasons, the Court will deny the motions.
Motion to Alter or Amend Judgment 
thrust of Keller's argument is that he should be granted
relief because he filed timely objections to the Report that
were never delivered to the Court. The Report was issued and
mailed to Keller on April 13, 2015. ECF 116. Keller claims he
did not receive the Report until April 22, 2015, and mailed
his objections to the Court and the prosecutor on May 2,
2015. ECF 122, PgID 1044-45. As evidence of this, he filed a
document dated May 2, 2015 and titled "Report and
Recommendation Objections." See ECF 121. But
these objections were not entered on the docket until
February 12, 2016, the same day the instant motion was filed.
Keller mailed his objections on May 2, 2015, the objections
would have been untimely. Under 28 U.S.C. § 636(b)(1)
and Federal Rules of Civil Procedure Rule 6(d) and
72(b)(1)(2), Keller had 17 days to file objections after a
copy of the Report was served by mail on April 13, 2015.
Applying the prisoner mailbox rule, Keller had to place his
objections into the prison's internal mailing system by
April 30, 2015. See Rule 3(d) of the Rules Governing
Section 2255 Cases in the United States District Courts;
Houston v. Lack, 487 U.S. 266, 273 (1988).
Keller's May 2, 2015 mailing was therefore untimely.
even if Keller mailed his objections on time and the Court
received them, the Court would still deny relief, because his
arguments lack merit. In his first objection, Keller argues
that the magistrate judge wrongly denied his ineffective
assistance of counsel claim regarding counsel's failure
to contest the alleged breach of his plea agreement. ECF 121,
PgID 1037-39. Keller's objection is without merit,
because he failed to show that his counsel's performance
fell below objective standard of reasonableness and that, but
for counsel's error, the outcome would have been
different. See Strickland v. Washington, 466 U.S.
668, 687 (1984). If counsel had objected to the
Government's breach of the Rule 11 during the sentencing,
there is no indication that the Court would have sentenced
Keller to a different term of imprisonment. Indeed, the final
168-month sentence conformed with the eventual "agreed
range" of a sentence between 135 and 168 months.
second objection, Keller contends that the magistrate judge
wrongly decided that Keller waived his right to challenge the
sentencing guidelines calculation in his plea agreement. ECF
121, PgID 1039-40. Specifically, Keller cites to an October
14, 2014 memorandum from the Department of Justice
instructing federal prosecutors to "no longer enforce
previously executed waivers of claims of ineffective
assistance of counsel." Id. Keller, like some
other prisoners, "appears to believe that the Department
of Justice policy statement has an impact on his § 2255
case and somehow nullifies the Magistrate's
recommendations regarding his ineffective assistance of
counsel claims." United States v. Terry, No.
611CR36GFVTHAI9, 2016 WL 1032809, at *2 (E.D. Ky. Mar. 15,
2016). But Keller misunderstands the nature of the memorandum
and the magistrate's Report. Pursuant to his plea
agreement-and as the Sixth Circuit found when it denied his
appeal-Keller waived the right to appeal his conviction and
sentence. ECF 60, PgID 653; United States v. Keller,
665 F.3d 711, 715-19 (6th Cir. 2011). And in any event,
"the Department of Justice policy statement . . . is not
binding on judges but instead serves as a guide for federal
prosecutors." Terry, No. 611CR36GFVTHAI9, 2016
WL 1032809, at *2. Here, the magistrate judge properly
considered Keller's ineffective assistance of counsel
claims. The Court will not reject her Report based on a
Department of Justice memorandum that is not binding on the
Court. Thus, had the Court considered Keller's
objections, both would have been overruled.
Motion to Grant § 2255 and Appoint Counsel
also requests that the Court appoint counsel to contest the
constitutionality of his prison sentence in light of the
United States Supreme Court's decisions in Johnson v.
United States, 135 S.Ct. 2551 (2015) and Welch v.
United States, 136 S.Ct. 1257 (2016). Specifically, he
argues that Johnson renders unconstitutional several
of the enhancements the Court applied to his sentence under
28 U.S.C. §§ 2K2.1(b)(1)(B), 2K1.3, and
2K2.1(b)(6). Those enhancements, he argues, are void because
they "fall under the 'residual clause' of the
guidelines, " and require re-sentencing. ECF 123, PgID
1052-53. As an initial matter, the Court need not address
Keller's arguments, because his original § 2255
motion was denied, and he has not filed a successive motion
asserting the new argument. In any event, the argument is
without merit. In Johnson, the Supreme Court held
that the imposition of an increased sentence under the
residual clause of the Armed Career Criminal Act (ACCA)
violates due process because the clause is so vague that it
"denies fair notice to defendants and invites arbitrary
enforcement by judges." 135 S.Ct. at 2557. And in
Welch, the Court held that Johnson applied
retroactively on collateral review. 136 S.Ct. at 1265. In
Beckles v. United States, however, the Court held
that the United States Sentencing Guidelines are "not
amenable to a vagueness challenge." 137 S.Ct. 886, 894
(2017). Accordingly, Keller's vagueness challenge to his
sentencing enhancements is without merit, and there is no
reason to appoint counsel to re-assert it.
it is hereby ORDERED that Keller's Motions to Alter or
Amend Judgment  and Grant § 2255 Motion ...