United States District Court, E.D. Michigan, Northern Division
ORDER OVERRULING OBJECTIONS, ADOPTING REPORT AND
RECOMMENDATION, DENYING MOTION TO VACATE SENTENCE, DENYING
PETITIONER'S ADDITIONAL PENDING MOTIONS, DENYING
RESPONDENT'S MOTION TO DISMISS AS MOOT, DENYING A
CERTIFICATE OF APPEALABILITY AND DENYING LEAVE TO APPEAL IN
L. Ludington United States District Judge
27, 2015 an indictment was issued charging Petitioner Samuel
Lee Curney with one count of distribution of heroin in
violation of 21 U.S.C. § 841(a)(1). Curney pled guilty
to the charge, and was sentenced to 140 months of
imprisonment on November 5, 2015. His sentence was based in
part upon a career offender enhancement pursuant to USSG
§ 4B1.1. Judgment was entered in November 12, 2015.
See ECF No. 19.
October 31, 2016 Petitioner Curney filed a motion purportedly
seeking relief pursuant to Federal Rule of Criminal Procedure
52(b). See ECF No. 23. With Curney's consent,
that motion was construed as a motion to vacate his sentence
pursuant to 28 U.S.C. § 2255. See ECF Nos.
26-28. The matter was then referred to Magistrate Judge
Patricia T. Morris, along with Curney's subsequent
requests for relief. See ECF Nos. 24, 30, 31, 35,
April 3, 2017 the magistrate judge issued her report,
recommending that Curney's motion to vacate his sentence
be denied. See ECF No. 40. She also recommended that
Curney's additional requests for relief be denied.
Id. Curney filed objections on April 25, 2017, which
will be accepted as filed. See ECF No. 41. For the
reasons stated below, Curney's objections will be
overruled and the report and recommendation will be adopted.
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).
Curney first objects to the magistrate judge's finding
that his counsel was not ineffective for failing to challenge
the career offender enhancement. There is no dispute that
Curney had one qualifying controlled substance offense based
upon a 2009 conviction for delivering cocaine. Curney argues,
however, that his 2008 conviction under Michigan Compiled Law
333.7401(1)(a)(iv) for possessing with attempt to deliver a
controlled substance is not a qualifying predicate offense
because it involved an attempt. Michigan Compiled Law
333.7401 holds that a person “shall not manufacture,
create, deliver, or possess with intent to manufacture,
create, or deliver, a controlled substance
….” Id. (emphasis added). Where a
person commits an offense involving less than 50 grams of a
narcotic drug classified in schedule 1 or 2, that person
“is guilty of a felony punishable by imprisonment for
not more than 20 years or a fine of not more than $25,
000.00, or both.” Mich. Comp. Laws 333.7401(2)(a)(iv).
explained by the magistrate judge, Curney's argument is
without merit. Under § 4B1.1, a defendant is a career
offender if “the defendant has at least two prior
felony convictions of either a crime of violence or a
controlled substance offense.” Id. The term
“controlled substance offense” is defined as
“an offense under federal or state law, punishable by a
term of imprisonment for a term exceeding one year, that
prohibits the manufacture, import export, distribution of a
controlled substance … or the possession of a
controlled substance (or a counterfeit substance) with intent
to manufacture, import, export, distribute, or
dispense.” USSG § 4B1.2(b) (emphasis added).
His attempted delivery conviction under Michigan Compiled Law
333.7401(a)(iv) is therefore a qualifying predicate offense
under the sentencing guidelines. See Hopkins v. United
States, No. 1:14-CV-401, 2017 WL 1544811, at *3 (W.D.
Mich. Apr. 28, 2017).
in addition to his qualifying controlled substance offenses,
at the time of his sentencing Curney had two qualifying
convictions for crimes of violence. Specifically, in 2012 and
again in 2013 Curney was convicted of assaulting,
restricting, or obstructing a police officer. These are
qualifying crimes of violence under the residual clause of
§ 4B1.1(a)(2). See Beckles v. United States, __
U.S. __, 2017 WL 855781, at *3 (Mar. 6, 2017) (holding that
the sentencing guidelines are not subject to void for
vagueness challenges under the Fifth Amendment Due Process
clause). Because Curney had four qualifying predicate
offenses, his counsel was not ineffective for failing to
challenge the career offender enhancement. Curney's first
objection will be overruled.
Curney next objects to the magistrate judge's
determination that the Supreme Court's decision in
Mathis v. United States, 136 S.Ct. 2243, 2251, 195
L.Ed.2d 604 (2016), and the Fifth Circuit's decision in
United States v. Hinkle, 832 F.3d 569 (5th Cir.
2016), do not apply to his case. This objection is without
merit. In an unpublished case, the Sixth Circuit recently
held that M.C.L. 333.7401(2)(a) is not subject to challenges
under Mathis and Hinkle because the statute
sets forth separate offenses, not alternative means for
committing the same offense. United States v. Tibbs,
No. 15-1060, 2017 WL 1314933, at *5 (6th Cir. Apr. 10, 2017).
Moreover, even if Curney was correct that his 2008 controlled
substance offense was not a qualifying offense, he would not
be entitled to any relief because his criminal history
includes three other qualifying offenses. The career offender
enhancement would thus still be appropriate under USSG §
final objection, Petitioner Curney argues that the magistrate
judge erred in recommending denial of his motion to amend his
petition, through which he sought to bring a claim of
prosecutorial misconduct. Without citation, Curney argues
that he should have been allowed to avoid federal prosecution
by pleading guilty to state charges carrying a guideline
range of 7-36 months under the Project Safe Neighborhood
initiative. He does not allege that he was offered any such
plea deal, much less that the federal prosecutor was involved
in any state court plea negotiations. United States v.
McConer, 530 F.3d 484, 494 (6th Cir. 2008) (holding that
a federal prosecutor is not liable for a state's improper
handling of a defendant's plea negotiations where the
prosecutor was not involved in the alleged violation). Curney
also has not alleged that the attorney representing him in
the hypothetical plea negotiations was ineffective. See
United States v. Morris,470 F.3d 596, 600 (6th Cir.
2006) (holding that a district court may allow a defendant to
reconsider a state plea offer where the prosecutor was