United States District Court, E.D. Michigan, Southern Division
OPINION & ORDER DENYING PETITIONER'S §
2255 MOTION TO VACATE AND RULING ON CERTIFICATE OF
F. Cox United States District Judge
Criminal Case Number 11-20668, Petitioner Jeffrey Malone
(“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)(1),
924(e). (Doc. # 14, Plea Agreement at Pg ID 28). Judge
Lawrence Zatkoff sentenced Petitioner as an armed career
criminal to serve 108 months.
matter is now before the Court on Petitioner's Motion to
Vacate Sentence, brought pursuant to 28 U.S.C. 2255.
Petitioner's request for relief is based upon the Supreme
Court's decisions in Johnson v. United States,
135 S.Ct. 2251 (2015) and Mathis v. United States,
136 S.Ct. 2243 (2016). The Government has filed a response
opposing Petitioner's motion. (Doc. # 33, Gov't
Resp.). Petitioner has filed a reply and several supplemental
briefs. (Doc. # 34, Pet.'s Reply; Doc. # 34, Pet.'s
Supp'l Br.; Doc. # 39, Pet.'s Supp'l Br. (2)).
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 ready for a decision by
reasons that follow, the Court shall DENY
Petitioner's motion. The Court will issue a certificate
of appealability as to whether Petitioner's prior
second-degree home invasion convictions qualify as predicate
violent felonies under the ACCA. The Court declines to issue
a certificate of appealability as to Petitioner's
relevant background facts are undisputed. Petitioner was
charged in a one count Indictment with “Felon in
Possession of a Firearm; Armed Career Criminal, ” in
violation of 18 U.S.C. §§ 922(g)(1), 924(e), (Doc.
# 7), and pleaded guilty to “Count One of the
Indictment” pursuant to a Rule 11 Plea Agreement.
14, 2012, the probation department prepared a presentence
investigation report. (“PSR”). The 2011
Guidelines Manual was used to determine Petitioner's
offense level. Petitioner's base offense level was
calculated at 24 because Petitioner committed the instant
offense subsequent to sustaining at least two felony crimes
of violence, pursuant to USSG § 2K2.1(a)(2).
determined that Petitioner was an armed career criminal for
sustaining at least three prior convictions for a violent
felony or serious drug offense, pursuant to USSG §
4B1.4. The PSR identified the following as prior violent
felonies: (1) 1995 second-degree home invasion; (2) 1996
second-degree home invasion; and (3) 1997 arson personal
property. As such, Chapter Four Enhancements were applied,
resulting in an offense level of 33.
received a three level downward departure for acceptance of
responsibility pursuant to USSG § 3E1.1(a) and (b).
Petitioner's total offense level was calculated at 30,
and he had a criminal history category of V. The PSR
determined that the applicable sentencing guideline range was
180-188 months of imprisonment.
Government filed a § 5K1.1 motion for downward departure
based upon Petitioner's substantial assistance. On July
24, 2012, Judge Lawrence Zatkoff sentenced Petitioner to 108
months of imprisonment.
9, 2016, Petitioner filed a pro se motion to vacate
sentence pursuant to 28 U.S.C. § 2255, arguing that his
prior arson conviction does not qualify as a prior violent
felony in light of Johnson. (Doc. # 22, Pet.'s
Pro Se Br.). Petitioner also asserted two
ineffective assistance of counsel claims, which Petitioner
has since withdrawn. (See Doc. # 37, Pet.'s
Notice of Amendment). Petitioner filed a supplemental brief
arguing that his prior home invasion convictions no longer
qualify as predicate violent felonies under the ACCA.
Petitioner also filed a motion to appoint counsel, (Doc. #
27), which the Court did on November 14, 2016. (Doc. # 27).
counsel has since filed a “second supplement” to
Petitioner's original pro se § 2255 motion.
(Doc. # 31, Pet.'s Br.). In it, Petitioner argues that
his prior second-degree home invasion conviction under
Michigan law no longer qualifies as a “violent
felony” in light of Johnson and
Mathis. The Government has filed a response in
opposition (Doc. # 33, Gov't Resp.) and Petitioner has
filed a reply. (Doc. # 34, Pet.'s Reply).
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.”). Here, Petitioner does not
request an evidentiary ...