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United States v. Ray

United States District Court, E.D. Michigan, Northern Division

April 20, 2017

UNITED STATES OF AMERICA, Plaintiff/ Respondent,
v.
KENYA DESHON RAY, Defendant/ Petitioner.

          ORDER OVERRULING OBJECTIONS, ADOPTING REPORT AND RECOMMENDATION, DENYING PETITIONER'S MOTION TO VACATE SENTENCE, DENYING CERTIFICATE OF APPEALABILITY AND DENYING LEAVE TO PROCEED IFP ON APPEAL

          THOMAS L. LUDINGTON United States District Judge

         On May 11, 2012 an information was entered charging Defendant Kenya Deshon Ray with one count of possessing with the intent to distribute 28 grams or more of cocaine base in violation of 21 U.S.C. 841(a)(1). See ECF No. 9. On May 11, 2012, Ray waived his right to prosecution by indictment. That same day, Ray entered a guilty plea as to the charge pursuant to a Rule 11 plea agreement. See ECF No. 13. On September 6, 2012 Ray was sentenced as a career offender to 188 months' imprisonment, which was the low end of the applicable guideline range. See Plea Agreement p. 4, ECF No. 12. Judgment was entered on September 10, 2012. See ECF No. 18. Ray did not file any direct appeal.

         Over three years later, on May 2, 2016, Petitioner Ray filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255, arguing that his sentence was rendered unconstitutional by the Supreme Court's decision Johnson v. United States, 135 S.Ct. 2551, 2562, 192 L.Ed.2d 569 (2015) (striking down the residual clause of the Armed Career Criminal Act as unconstitutionally vague in violation of the due process clause of the Fifth Amendment). See ECF No. 19. Ray's motion was referred to Magistrate Judge Patricia T. Morris. See ECF No. 22. On January 19, 2017 the magistrate judge issued her report, recommending that Ray's motion to vacate be denied. See ECF No. 29. The magistrate judge reasoned that Johnson was inapplicable to Ray's conviction and sentence because, even if Johnson was found applicable to the United States Sentencing Guidelines, Ray's predicate offense of assault with a dangerous weapon did not fall under the residual clause. She therefore concluded that Ray's motion was both untimely and without merit. Ray filed objections to the report on February 13, 2017. See ECF No. 30.

         I.

         Pursuant to Federal Rule of Civil Procedure 72, a party may object to and seek review of a magistrate judge's report and recommendation. See Fed.R.Civ.P. 72(b)(2). Objections must be stated with specificity. Thomas v. Arn, 474 U.S. 140, 151 (1985) (citation omitted). If objections are made, “[t]he district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to.” Fed.R.Civ.P. 72(b)(3). De novo review requires at least a review of the evidence before the magistrate judge; the Court may not act solely on the basis of a magistrate judge's report and recommendation. See Hill v. Duriron Co., 656 F.2d 1208, 1215 (6th Cir. 1981). After reviewing the evidence, the Court is free to accept, reject, or modify the findings or recommendations of the magistrate judge. See Lardie v. Birkett, 221 F.Supp.2d 806, 807 (E.D. Mich. 2002).

         A.

         Through his objections, Ray first argues that the magistrate judge erred in finding Johnson inapplicable to his status as a career offender under the sentencing guidelines. This argument is without merit. On March 6, 2017 the Supreme Court reached a decision in Beckles, holding that the sentencing guidelines are not subject to void for vagueness challenges under the Fifth Amendment Due Process clause. See Beckles v. United States, No. 15-8544, 2017 WL 855781, at *3 (U.S. Mar. 6, 2017). In other words, the Supreme Court definitively held that petitioners challenging their career offender status under the sentencing guidelines could not rely on the rule articulated in Johnson.

         B.

         Ray also argues for the first time that a controlled substance offense underlying his career offender status in not a proper predicate offense under the Supreme Court's decision in Mathis v. United States, 136 S.Ct. 2243, 2251, 195 L.Ed.2d 604 (2016) (holding that, for the purpose of determining whether an offense qualifies as a predicate under the Armed Career Criminal Act, the court takes a categorical approach, looking to the statutory elements of the offense rather the particular means of commission). Ray did not raise any claim under Mathis in his original petition. By failing to do so, and by failing to timely move to amend his petition in order to add a claim under Mathis, Ray waived his ability to assert such a claim through objections to a report and recommendation. “[W]hile the Magistrate Judge Act, 28 U.S.C. § 631 et seq., permits de novo review by the district court if timely objections are filed, absent compelling reasons, it does not allow parties to raise at the district court stage new arguments or issues that were not presented to the magistrate.” Murr v. United States, 200 F.3d 895, 902 n.1 (6th Cir.2000) (citing Marshall v. Chater, 75 F.3d 1421 (10th Cir.1996) (stating that “[i]ssues raised for the first time in objections to the magistrate judge's recommendation are deemed waived”).

         Even so, Ray's claim under Mathis is time barred. A motion seeking relief under § 2255 is untimely if it is not filed within a 1-year period of limitation. 28 U.S.C. § 2255(f). That limitation period shall run from the latest of

(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the ...

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