Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Malone

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

August 17, 2017

United States of America, Plaintiff/Respondent,
v.
Jeffrey Malone, Defendant/Petitioner. Civil No. 16-12123

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

          Sean F. Cox United States District Judge

         In 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.[1]

         This 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)).

         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 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 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 remaining claim.

         BACKGROUND

         The 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.

         On June 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).

         The PSR 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.

         Petitioner 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.

         The 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.

         On June 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).

         Petitioner's 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).

         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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.