United States District Court, E.D. Michigan, Southern Division
OPINION & ORDER DENYING PETITIONER'S §
2255 MOTION TO VACATE SENTENCE AND RULING AS TO CERTIFICATE
F. Cox United States District Judge
Criminal Case Number 13-20582, Petitioner Duryane Chaney
(“Petitioner”) pleaded guilty, pursuant to a Rule
11 Plea Agreement, to one count of Felon in Possession of a
Firearm, in violation of 18 U.S.C. §§ 922(g),
924(e), and to one count of Intent to Distribute Cocaine, in
violation of 21 U.S.C. § 841(a)(1). (Doc. # 16, Rule 11
Plea Agreement). Petitioner was sentenced as an armed career
criminal to serve 188 months and 120 months, to run
matter is now before the Court on Petitioner's
“Motion to Vacate Sentence Pursuant to 28 USC
2255.” (Doc. # 47, Pet. Mo.). Petitioner's request
for relief is based upon the Supreme Court's decision in
Johnson v. United States, 135 S.Ct. 2251 (2015),
which held that the residual clause of the Armed Career
Criminal Act (“ACCA”) was unconstitutionally
vague. The Government has filed a response opposing
Petitioner's motion. (Doc. # 51, Gov't Resp.).
Petitioner has filed a reply. (Doc. # 52, Pet. Reply).
Petitioner has also filed two supplemental briefs, (Docs. #
53, 54), containing district court cases that Petitioner
argues support his position.
the parties fully briefed this matter, the Sixth Circuit
issued United States v. Matthews, 2017 WL 1857265
(6th Cir. May 8, 2017), holding that Michigan's unarmed
robbery statute constitutes a predicate violent felony for
purposes of the ACCA. The parties were permitted to file
supplemental briefs addressing the Matthews
decision. Petitioner filed his supplemental brief on June 27,
2017. (Doc. # 57). The Government chose not to
file a supplemental brief.
the files and records of the case conclusively establish that
Petitioner is not entitled to relief as to any of the claims
set forth in this § 2255 motion, an evidentiary hearing
is not necessary and the decision is therefore ready for a
decision by this Court.
reasons that follow, the Court shall DENY
Petitioner's motion. The Court will issue a certificate
of appealability only as to whether Petitioner's attempt
unarmed robbery conviction qualifies as a violent felony
under the ACCA because reasonable jurists have found this
question debatable. However, the Court declines to issue a
certificate of appealability as to Petitioner's remaining
relevant background facts are undisputed. Petitioner was
charged in a five-count First Superseding Information with:
one count of felon in possession of a firearm, in violation
of 18 U.S.C. § 922(g); one count of possession with
intent to distribute cocaine, in violation of 18 U.S.C.
§ 841(a)(1); one count of possession with intent to
distribute cocaine base, in violation of 841(a)(1); one count
of possession with intent to distribute heroin, in violation
of 18 U.S.C. § 841(a); and one count of possessing a
firearm in furtherance of a drug trafficking crime, in
violation of 18 U.S.C. 924(c)(1)(A).
pleaded guilty, pursuant to a Rule 11 Plea Agreement,
“to Counts One and Two of the First Superseding
Information, which charge felon in possession of a firearm,
Armed Career Criminal, in violation of 18 U.S.C. §§
922(g), 924(e), and possession with intent to distribute
cocaine, in violation of 21 U.S.C. § 841(a)(1).”
(Rule 11 Plea Agreement).
November 6, 2013, the probation department prepared a
presentence investigation report. (“PSIR”).
Petitioner's base offense level was calculated at 24
pursuant to United States Sentencing Guideline
(“USSG”) § 2K2.1(a)(2). (PSIR at ¶ 22).
Petitioner's offense level was increased four levels
pursuant to USSG § 2K2.1(b)(6)(B) because he committed
the instant offense subsequent to sustaining at least two
convictions of either a crime of violence or a controlled
substance. (Id. at ¶ 23).
was considered an armed career criminal because he had at
least three prior convictions for a violent felony or serious
drug offense, pursuant to 18 U.S.C. § 924(e).
(Id. at ¶ 28). As such, Chapter Four
Enhancements were applied, resulting in a base offense level
of 34 pursuant to USSG 4B1.4. (Id.). Petitioner
received a three level downward departure for acceptance of
responsibility pursuant to USSG § 3E1.1(a).
(Id. at ¶¶ 29-30). Petitioner's total
offense level was calculated at 31, and he had a criminal
history category of VI. The PSIR determined that the
applicable sentencing guideline range was 188-235 months of
PSIR identified the following prior “violent
felonies” or “serious drug offenses”: (1)
1981 attempt unarmed robbery; (2) 1990 assault with intent to
do great bodily harm and felonious assault; and (3) 2003
conspiracy to possess with intent to distribute cocaine.
(PSIR at ¶¶ 32, 34, 37). On March 14, 2014, the
Court sentenced Petitioner to 188 months and 120 months, to
December 2, 2015, Petitioner filed a pro se Motion
to Vacate Sentence pursuant to 28 U.S.C. § 2255. (Doc. #
35). On February 16, 2016, Petitioner filed a pro se
Motion to Amend pursuant to Rule 15(c). (Doc. # 42). On June
8, 2016, counsel for Petitioner filed the instant Motion to
Vacate Sentence (Doc. # 47, Pet. Mo.) and on July 27, 2016,
Petitioner's counsel withdrew the previous pro
se filings. (Doc. # 49). Petitioner's motion has
been fully briefed by the parties.
motion is brought pursuant to 28 U.S.C. § 2255, which
A prisoner in custody under a sentence of a court established
by Act of Congress claiming the right to be released upon the
ground that the sentence imposed was in violation of the
Constitution or laws of the United States, or that the court
was without jurisdiction to impose such a sentence, or that
the sentence was in excess of the maximum authorized by law,
or is otherwise subject to collateral attack, may move the
court which imposed the sentence to vacate, set aside, or
correct the sentence.
28 U.S.C. § 2255(a). To 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).
Court must hold an evidentiary hearing on a § 2255
motion “[u]nless the motion and the files and records
of the case conclusively show that the prisoner is entitled
to no relief . . . .” 28 U.S.C. § 2255(b);
Blanton v. United States, 94 F.3d 227, 235 (6th Cir.
1996) (“evidentiary hearings are not required when . .
. the record conclusively shows that the petitioner is
entitled to no relief.”).
Petitioner does not request an evidentiary hearing as to the
issues and there does not appear to be a need as the record
conclusively establishes ...