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United States v. Elder

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

August 30, 2017

UNITED STATES OF AMERICA, Respondent,
v.
MARCUS ELDER, Movant.

         ORDER GRANTING MOTION TO VACATE SENTENCE UNDER 28 U.S.C. §2255 [DOC. 129] AND MOOTING MOTION TO CLARIFY SENTENCE [DOC. # 125]; MOTION TO CONDUCT PRELIMINARY REVIEW OF PENDING §2255 PETITION [DOC. 139]; AND, MOTION TO EXPAND THE SCOPE OF §2255 PROCEEDINGS RECORD [DOC. # 142]

          Hon. Victoria A Roberts, Judge

         I. INTRODUCTION

         Marcus Elder pled guilty to one count of felony conspiracy to distribute and to possess with intent to distribute a controlled substance. The Court sentenced him to 84 months in prison followed by four years of supervised release.

         Elder now moves the Court to vacate his sentence. He argues his attorney was ineffective for failing to: (1) consult him on his right to a direct appeal; (2) adequately prepare for his sentencing hearing and ask the Court to order his federal sentence to run concurrent to his undischarged state sentence; and, (3) move to dismiss the indictment.

         The Court believes at least one of Elder's claims has merit. Accordingly, the Court GRANTS Elder's motion to vacate his sentence. As a result, Elder's other motions are rendered moot.

         II. STANDARD OF REVIEW

         A federal custodial sentence may be vacated, set aside or corrected if: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose the sentence; (3) the sentence was in excess of the maximum authorized by law; or, (4) the sentence is otherwise subject to collateral attack. 28 U.S.C.A. § 2255(a).

         To prevail, “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). Elder says that trial counsel was ineffective. To prove constitutionally deficient counsel, Elder must satisfy a two-prong test. First, he must demonstrate that, considering all of the circumstances, counsel's performance was so deficient that the attorney was not functioning as the "counsel" guaranteed by the Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 687 (1984). In so doing, Elder must overcome a strong presumption that counsel's behavior lies within a wide range of reasonable professional assistance. Id. In other words, he must overcome the presumption that, under the circumstances, the challenged action might be sound trial strategy. Strickland, 466 U.S. at 689.

         Second, Elder must show that such performance prejudiced his defense. Id. To demonstrate prejudice, he must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. "Strickland's test for prejudice is a demanding one. ‘The likelihood of a different result must be substantial, not just conceivable.'" Storey v. Vasbinder, 657 F.3d 372, 379 (6th Cir. 2011). The Supreme Court's holding in Strickland places the burden on the defendant who raises a claim of ineffective assistance of counsel - and not the government - to show a reasonable probability that the result of the proceeding would have been different, but for counsel's allegedly deficient performance. See Wong v. Belmontes, 558 U.S. 15, 27 (2009).

         III. DISCUSSION

         A. Statute of Limitations

         The Government argues that Elder's motion to vacate his sentence under §2255 is untimely. The Court disagrees. §2255 motions are subject to a one year statute of limitations. Elder's one-year statute of limitations period began to run from the date the Court entered final judgment of conviction. See §2255(f). The Court entered the final judgment on July 31, 2015. While Elder's motion to vacate was not marked as filed until August 3, 2016, Elder says he gave it to FCI-Milan prison officials on August 27, 2016; presumably he meant July 27, 2016.

         Elder is a prisoner who represents himself. Pursuant to the federal pro se prisoner mailbox rule, Elder's motion is considered filed at the time he delivered it to prison authorities for filing. Scuba v. Brigano, 527 F.3d 479, 484 (6th Cir. 2007). (“Pursuant to the pro se mail box rule [defendant's] motion was filed at the time petitioner delivered it to the prison authorities for forwarding to the court clerk.” “The rationale for the rule is that the date the prisoner gives the petition to the prison can be readily ascertained, and any delays in receipt by the court can be attributed to the prison, and pro se litigants should not be penalized ...


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