United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING MOTION TO
VACATE SENTENCE 
E. Levy United States District Judge.
Christopher Fairley has filed a motion to vacate his sentence
pursuant to 28 U.S.C. § 2255. (Dkt. 20.)
reasons set forth below, the motion is denied.
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.)
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.)
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.
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)).
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)).
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.)
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 ...