United States District Court, E.D. Michigan, Southern Division
OPINION & ORDER DENYING § 2255 MOTION AND
DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY
F. Cox United States District Court Judge
Criminal Case Number 11-20752, Defendant/Petitioner Derrick
Terry (“Terry”) pleaded guilty, pursuant to a
Rule 11 agreement, to one count of conspiracy to possess with
intent to distribute and to distribute marijuana, cocaine,
and cocaine base. This Court sentenced him to 220 months of
imprisonment. Terry's conviction was affirmed on direct
appeal. The matter is now before the Court on Terry's
pro se Motion to Vacate Sentence, brought pursuant
to 28 U.S.C. § 2255. Because the files and records of
the case conclusively show that Terry is entitled to no
relief as to the claims in this § 2255 motion, an
evidentiary hearing is not necessary and the matter is ripe
for a decision by this Court. For the reasons set forth
below, the Court denies the motion and declines to issue a
certificate of appealability.
was one of several defendants indicted in this drug
conspiracy case. Terry was represented by appointed counsel,
April 3, 2013, Terry pleaded guilty, pursuant to a Rule 11
Plea Agreement, to Count One of the Indictment, which charged
“a violation of 21 U.S.C. §§ 841(a)(1) and
§ 846, conspiracy to distribute and to possess with
intent to distribute controlled substances.” (Rule 11
Plea Agreement, D.E. No. 384, at Pg ID 1929).
Rule 11 Plea Agreement provided that either party could
withdraw from the agreement if the Court were to decide not
to accept the parties' agreed sentence. (Id. at
Pg ID 1932). It also contained an appellate-waiver provision
that stated as follows:
6. WAIVER OF APPEAL
Defendant waives any right he may have to appeal his
conviction. If the sentence imposed does not exceed the
maximum allowed by Part 3 of this agreement, defendant also
waives any right he may have to appeal his sentence. If the
sentence imposes is within the guideline range determined by
Paragraph 2B the government agrees not to appeal the
sentence, but retains its right to appeal any sentence below
(Id. at Pg ID 1933).
Rule 11 Plea Agreement, the parties agreed that the
applicable guidelines range was 235-293 months. (Id.
at Pg ID 1930). But, pursuant to Fed. R. Crim. Pro.
11(c)(1)(C), Terry and the Government agreed to a specific
sentencing range of 216 to 240 months imprisonment.
(Id. at Pg ID 1931).
Judgment (D.E. No. 456), issued on October 9, 2013, reflects
that Terry pleaded guilty to Count 1 of the Indictment, which
charged Conspiracy to possess with intent to distribute and
to distribute marijuana, cocaine and cocaine base, in
violation of 21 U.S.C. § 841(a)(1) and 846. Any
remaining counts were dismissed. This Court sentenced Terry
to a total term of imprisonment of 220 months. Thus, this
Court sentenced Terry within the range specified in his Rule
11 Plea Agreement. The sentence imposed was just four months
over the agreed upon minimum sentence.
by new counsel, Terry filed a direct appeal challenging his
conviction. The Sixth Circuit affirmed. United States v.
Terry, 613 F. App'x 540 (6th Cir. 2015). In his
direct appeal, Terry did not challenge his sentence.
Id. at 542 (noting that Terry “has not
challenged his sentence.”). In challenging his
conviction, Terry argued that “his guilty plea was not
knowing and voluntary because the district court failed to
comply with Federal Rule of Criminal Procedure 11.”
Id. at 541. The Sixth Circuit rejected that argument
2, 2016, Terry filed a pro se motion seeking relief
under 28 U.S.C. § 2255. Terry also filed a brief in
support of his motion.
Government opposes Terry's Petition, asserting that it
should be denied for multiple reasons. Terry filed a reply
brief. Thus, the motion has been fully briefed by the
November 16, 2016, on an unrelated motion, this Court issued
an “Order Regarding Motion For Sentence Reduction
Pursuant to 18 U.S.C. § 3582(c)(2)” wherein this
Court reduced Terry's sentence from 220 months to 176
months of imprisonment. (D.E. No. 638).
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 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.
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).
seeking to set aside their sentences pursuant to 28 U.S.C.
section 2255 have the burden of establishing their case by a
preponderance of the evidence. McQueen v. U.S., 58
F. App'x 73, 76 (6th Cir. 2003). It is well established
that when a defendant files a section 2255 motion, he or she
must set forth facts establishing entitlement to relief.
Green v. Wingo, 454 F.2d 52, 53 (6th Cir. 1972);
O'Malley v. United States, 285 F.2d 733, 735
(6th Cir. 1961). “Conclusions, not substantiated by
allegations of fact with some probability of verity, are not
sufficient to warrant a hearing.” Green, 454
F.2d at 53; O'Malley, 285 F.2d at 735 (citations
omitted). Moreover, no hearing is required where the
petitioner's allegations cannot be accepted as true
because they are contradicted by the record or are inherently
incredible. Ewing v. United States, 651 F. App'x
405, 409 (6th Cir. 2016). Where, as here, the judge
considering the § 2255 motion also conducted the
proceedings below, the judge may rely on his recollections of
those proceedings. Id.
the files and records of the case conclusively show that
Terry is entitled to no relief as to the claims in his §
2255 motion, an evidentiary hearing is not necessary and the
matter is ripe for a decision by this Court.
pending motion, Terry asserts that his counsel, both trial
and appellate counsel, provided ineffective assistance to
asserts that the ineffective assistance of his trial counsel
led to Terry entering a guilty plea that was not knowing and
voluntary. As an initial matter, the Court notes that the
Sixth Circuit has already considered and rejected, on direct
appeal, a similar argument. See United States v.
Terry, 613 F. App'x at 541-42.
support of his current argument that his plea was not
knowingly and voluntarily made, Terry now argues that his
counsel failed to advise him of the sentencing consequences
of his plea. (D.E. No. 614 at Pg ID 3065-66).
Government notes in its response, regardless of what
Terry's counsel told him, Terry was sufficiently advised
by this Court during the plea hearing about the sentencing
consequences of pleading guilty, as the record establishes:
THE COURT: Okay. Sir, could you raise your right hand? Do you
affirm the testimony you're about to give will be the
truth, the ...