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United States v. Chaney

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

August 16, 2017

United States of America, Plaintiff,
v.
Duryane Chaney, Defendant.

          OPINION & ORDER DENYING PETITIONER'S § 2255 MOTION TO VACATE SENTENCE AND RULING AS TO CERTIFICATE OF APPEALABILITY

          Sean F. Cox United States District Judge

         In 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 concurrently.

         This 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.

         After 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.[1] (Doc. # 57). The Government chose not to file a supplemental brief.

         Because 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.

         For the 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 claims.

         BACKGROUND

         The 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).

         Petitioner 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).

         On 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).

         Petitioner 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 imprisonment.

         The 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 run concurrently.

         On 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.

         STANDARD

         Petitioner's motion is brought pursuant to 28 U.S.C. § 2255, which provides:

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).

         The 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.”).

         Here, 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 ...


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