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Fairley v. United States

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

June 12, 2017

Christopher Fairley, Petitioner,
v.
United States of America, Respondent.

          OPINION AND ORDER DENYING MOTION TO VACATE SENTENCE [20]

          Judith E. Levy United States District Judge.

         Petitioner Christopher Fairley has filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255. (Dkt. 20.)

         For the reasons set forth below, the motion is denied.

         I. Background

         On February 21, 2013, Petitioner pleaded guilty to one count of felon in possession of a firearm, 18 U.S.C. § 922(g)(1) and 18 U.S.C. § 924(a)(2). (Dkts. 11, 15.) The Rule 11 plea agreement stated that "[t]here are no sentencing guideline disputes, " and "defendant's guideline range is 84 to 105 months." (Dkt. 11 at 3.) On July 22, 2013, The Honorable Gerald E. Rosen sentenced Petitioner to a term of eighty-four (84) months imprisonment and three years of supervised release. (Dkt. 15.)

         Petitioner did not appeal his conviction or sentence, stating that "[c]ounsel explained there was no need to appeal." (Dkt. 20 at 4.) Instead, on June 23, 2016, Petitioner filed a motion to vacate his sentence under 28 U.S.C. § 2255. (Dkt. 20.) To support his motion, Petitioner argues that the district court violated his Fifth Amendment right to due process when it erred in applying a four-level enhancement pursuant to the Armed Career Criminal Act, 18 U.S.C. § 924(e), where there was a "firearm [that had] an obliterated serial number, " because there were no facts to establish that Petitioner removed the serial number. (Id. at 4.) As a remedy, Petitioner requests that his sentence be reduced or vacated. (Id. at 12.)

         In his response brief, Petitioner further argues that the district court erred in finding a base offense level of 24, instead of 20, because he was not convicted of two or more felonies that qualified for the four-point sentencing enhancement. (Dkt. 28.)

         II. Legal Standard

         Under the Antiterrorism and Effective Death Penalty Act ("AEDPA") of 1996, a prisoner "claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States ... or that the sentence was in excess of the maximum authorized by law . . . may move the court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. § 2255(a). Thus, a prisoner seeking relief must allege either "(1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law that was so fundamental as to render the entire proceeding invalid." Short v. United States, 471 F.3d 686, 691 (6th Cir. 2006)) (quoting Mallett v. United States, 334 F.3d 491, 496-97 (6th Cir. 2003)).

         To prevail on a claim of constitutional error, a prisoner "must demonstrate the existence of an error of constitutional magnitude which had a substantial and injurious effect" on the proceedings. Hamblen v. United States, 591 F.3d 471, 473 (6th Cir. 2009) (citing Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003)). This standard "is in essence an assessment of the prejudicial impact of the constitutional violation." Fleming v. United States, 192 F.Supp.3d 841, 843 (E.D. Mich. 2016) (citing McCary v. Lewis, 255 F.App'x 78, 79 (6th Cir. 2007)).

         III. Analysis

         Petitioner argues that his sentence was imposed in violation of his due process rights, as set forth in Johnson v. United States, ___U.S.___, 135 S.Ct. 2551 (2015), because a four-level enhancement to the base offense level was erroneously applied, which increased his Guidelines range and therefore his sentence of eighty-four months. (Dkt. 20.) Respondent argues the motion to vacate is time-barred, procedurally defaulted, and lacks merit. (Dkt. 29.)

         Statute of Limitations

         Respondent argues that Petitioner's motion is time-barred by the one-year statute of limitations. (Dkt. 29 at 4-5.) Petitioner responds that the legal basis for his claim, Johnson v. United States, ___U.S.___, 135 S.Ct. 2551 (2015), as applied retroactively by Welch v. United States, ___ U.S.___, 136 S.Ct. 892 (2016), was not available ...


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