United States District Court, E.D. Michigan, Southern Division
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]
Victoria A Roberts, Judge
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.
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.
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.
STANDARD OF REVIEW
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).
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.
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).
Statute of Limitations
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.
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