United States District Court, E.D. Michigan, Southern Division
OPINION & ORDER DENYING DEFENDANT'S MOTION TO
VACATE SENTENCE (DKTS. 732, 743), DENYING
DEFENDANT'S MOTION FOR TRANSCRIPTS (DKT. 746), DENYING
DEFENDANT'S MOTION FOR LEAVE TO FILE A REPLY TO THE
GOVERNMENT'S RESPONSE BRIEF (DKT. 747), AND DENYING A
CERTIFICATE OF APPEALABILITY
MICHIGAN MARK A. GOLDSMITH UNITED STATES DISTRICT JUDGE
September 5, 2012, judgment entered against Defendant after
he was convicted of conspiracy to distribute and possess with
intent to distribute controlled substances, 21 U.S.C.
§§ 846, 841(a)(1); possession with intent to
distribute cocaine, 21 U.S.C. §§ 841(b)(1)(C),
841(a)(1); possession with intent to distribute heroin,
id.; felon in possession of a firearm, 18 U.S.C.
§§ 922(g)(1), 924(a)(2); and possession of a
firearm in furtherance of a drug trafficking crime, 18 U.S.C.
§ 924(c). See Judgment at 2 (Dkt. 569).
filing pro se, has filed two motions to vacate his sentence
(Dkts. 732, 743). The Government has responded. For the
reasons set forth below, the motions are denied.
FIRST MOTION TO VACATE SENTENCE (Dkt. 732)
invokes the Supreme Court's recent decision in
Johnson v. United States, 135 S.Ct. 2551 (2015),
which invalidated the so-called “residual clause”
in 18 U.S.C. § 924(e) because it was unconstitutionally
vague. Defendant, who was convicted of possession of a
firearm in furtherance of a drug trafficking crime under 18
U.S.C. § 924(c), argues that “[t]he § 924(e)
and § 924(c) residual clause[s] are virtually identical,
” and, as a result, Johnson should invalidate
his conviction. See Def. 1st Br. at 2 (Dkt. 732-1).
argument fails for two reasons. First, as pointed out by the
Government, Defendant was not convicted under the portion of
§ 924(c) pertaining to crimes of violence. See
Gov't Resp. at 3; see also 18 U.S.C. §
924(c)(1)(A) (“any person who, during and in relation
to any crime of violence or drug trafficking crime .
. ., uses or carries a firearm . . . .” (emphasis
added)). Thus, the statute's definitions of crimes of
violence, vague or not, are irrelevant to this case. Rather,
Defendant was convicted under the portion of § 924(c)
that is triggered due to the defendant's drug trafficking
addition, it is settled law in this circuit that
Johnson does not apply to § 924(c). See
United States v. Taylor, 814 F.3d 340 (6th Cir. 2016).
this motion is denied.
SECOND MOTION TO VACATE SENTENCE (Dkt.
Defendant's second motion to vacate, he claims that trial
and appellate counsel was ineffective. This argument attacks
counsel's performance in two areas: (i) counsel's
failure to perform an investigation that allegedly would have
revealed that he had a diminished role in the conspiracy; and
(ii) counsel's failure to successfully persuade either
this Court or the Court of Appeals that the jury should have
been instructed that it was free to attribute to Defendant a
lesser drug quantity than was attributed to the entire
conspiracy. The arguments are related; in each, Defendant
seeks to establish that he was responsible for a smaller
amount of drugs, either legally or factually. Because
Defendant fails to satisfy the ineffective-assistance
standard, these motions are denied.
Supreme Court set forth a two-prong test for evaluating
claims of ineffective assistance of counsel in Strickland
v. Washington, 466 U.S. 668 (1984). In order to
demonstrate ineffective assistance of counsel, a petitioner
must show both (i) that defense counsel's performance was
deficient and (ii) that petitioner suffered prejudice as a
result. Id. at 687. Deficiency of counsel is found
if counsel “made errors so serious that counsel was not
functioning as the ‘counsel' guaranteed the
defendant by the Sixth Amendment.” United States v.
Fortson, 194 F.3d 730, 736 (6th Cir. 1999). There is a
presumption that counsel's performance was reasonable.
United States v. Foreman, 323 F.3d 498, 503 (6th
Cir. 2003). “A court making the prejudice inquiry must
ask if the defendant has met the burden of showing that the
decision reached would reasonably likely have been different
absent the errors.” Strickland, 466 U.S. at
“Multiple Conspiracies” Theory
Defendant's first argument, he accuses the Government of
erroneously grouping several conspiracies under the umbrella
title of the “Dayton Mafia, ” when, in fact, that
term referred to “Dayton Mafia Records, ” a
legitimate business. See Def. 2nd Br. at 6.
Counsel's performance allegedly was deficient for failing
to conduct an independent investigation that would have
revealed Dayton Mafia Records to be a record label, rather
than a drug distribution conspiracy. Id. This fact
is relevant, says Defendant, because he was convicted and
sentenced for conspiracies other than the one in which
co-Defendant Lamonte Watson was running, and the use of a
legitimate business to form the “rim” in a
hub-and-spoke conspiracy wheel sidestepped the
Government's burden to show that the separate
conspiracies were, in fact, somehow related. See id.
(“The testimony from Woods and Knapp could establish a
conspiracy between [Defendant] and them, but in order to
connect this to Watson additional evidence was
needed.”). In addition to counsel's alleged failure
“to investigate this legitimate business venture,
” Defendant asserts that counsel failed “to
independently investigate the involvement of
[co-conspirators] Woods, Randle, Knapp, and . . . Ratcliff,
” and that this constituted deficient performance
because it resulted in this Court refusing to instruct the
jury on multiple conspiracies for want of evidence.
has failed to show prejudice regarding the term “Dayton
Mafia.” The Government points out that the term was
never used at trial, see 2nd Gov't Resp. at 10
(citing Tr. Tr. at 57-58 (Dkt. 585) (“Now that treads
upon what we had agreed not to bring up and that is the name
Dayton Mafia. We have agreed that I'm going to ask
Special Agent Wiggins that question substituting DM for
Dayton Mafia . . . .”)), and Defendant fails to explain
how the use of this term outside the presence of the jury was
misleading. Furthermore, as addressed below, Defendants'
true objection is not to the misappropriation of the name of
a legitimate business, but rather to the fact that too many
people were identified as being part of a single ...