United States District Court, E.D. Michigan, Southern Division
ORDER DENYING MOTION UNDER 28 U.S.C. § 2255 TO
VACATE, SET ASIDE, OR CORRECT SENTENCE AND DISMISSING CIVIL
Page Hood Chief Judge, United States District Court
25, 2014, Defendant Durand Sinclair pled guilty to felon in
possession of a firearm in violation of Title 18 United
States Code Section 922(g) (Count One) as alleged in his
Indictment. (Doc. No. 59, Transcript of Rule 11 Plea
Agreement). Sinclair was sentenced to a term of 50 months,
followed by 24 months on supervised release. (Doc. No. 49,
Judgment as to Durand Sinclair). A Notice of Appeal was filed
by Sinclair on December 29, 2014. (Doc. No. 48). The Sixth
Circuit Court of Appeals affirmed Sinclair's conviction
and Judgment on December 30, 2015 and the Mandate was issued
on December 30, 2015. (Doc. Nos. 60, 61).
filed a Motion to Vacate, Set Aside, or Correct Sentence
under 28 U.S.C. § 2255 on March 17, 2016, amended on
June 22, 2016, adding a second ground for relief. (Doc. Nos.
62, 70). As grounds for relief, Sinclair claims (1) that his
trial counsel was ineffective and (2) that his conviction
under M.C.L. § 750.84 does not qualify as a crime of
violence categorically and that he should be resentenced. On
July 14, 2016 the matter was stayed pending a decision by the
United States Supreme Court in Beckles v. United
States. (Doc. No. 74). On March 22, 2017 the stay was
lifted. (Doc. No. 77) The Government then filed a response
brief in this matter. (Doc. No. 78) For the reasons set forth
below, the Court denies Sinclair's Motion to Vacate, Set
Aside, or Correct Sentence on both grounds.
Standard of Review
2255 authorizes a federal prisoner to move the district court
to vacate a sentence. 28 U.S.C. § 2255(a). Motions
brought under 28 U.S.C. § 2255 are subject to a one-year
limitations period established by the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”).
Dunlap v. United States, 250 F.3d 1001, 1004-05 (6th
Cir. 2001). The AEDPA established a one-year limitations
period for § 2255 motions, generally running from
“the date on which the judgment of conviction becomes
final.” 28 U.S.C. § 2255(f)(1). When a movant does
not pursue a direct appeal to the court of appeals, the
conviction becomes final on the date the time for filing such
an appeal expires. Sanchez-Castellano v. United
States, 358 F.3d 424, 428 (6th Cir. 2004). In order to
prevail in a § 2255 motion, a petitioner “must
allege three bases: (1) an error of constitutional magnitude;
(2) a sentence imposed outside of the statutory limits; or
(3) an error of fact or law that was so fundamental as to
render the entire proceeding invalid.” Weinberger
v. United States, 268 F.3d 346, 351 (6th Cir. 2001).
may not conduct a collateral review of a judgment where the
issues for review have been decided on direct appeal.
DuPont v. United States, 76 F.3d 108, 110-11 (6th
Cir. 1996). A court also may not conduct a collateral review
of an issue that has been procedurally defaulted by the
defendant's failure to raise the grounds for review on
direct appeal. Massaro v. United States, 530 U.S.
500, 504 (2003). Section 2255 is not a substitute for a
direct appeal and a defendant cannot use it to circumvent the
direct appeal process. United States v. Frady, 460
U.S.152, 164-65 (1982); Elzy v. United States, 205
F.3d 882, 884 (6th Cir. 2000).
defendant fails to raise claims on direct appeal and attempts
to raise them in a § 2255 motion, the defendant must
show good cause for the failure to raise the claims and
establish prejudice or the defendant must show he or she is
actually innocent. Regalado v. United States, 334
F.3d 520, 528 (6th Cir. 2003).
Ineffective Assistance of Counsel Claim: Failure to Challenge
the Affidavit/Franks v. Delaware
court of appeals typically will not review a claim of
ineffective assistance of counsel on direct appeal except in
rare cases where the error is apparent from the existing
record. United States v. Lopez-Medina, 461 F.3d 724,
737 (6th Cir. 2006). Under the Sixth Amendment, a defendant
has a right to “have the Assistance of Counsel for his
defence.” U.S. Const. Amend. VI. A defendant under the
Sixth Amendment has a right to “reasonably effective
assistance of counsel.” Strickland v.
Washington, 466 U.S. 668, 687 (1984). In
Strickland, the Supreme Court articulated a two
prong test for ineffective counsel:
First, the defendant must show that counsel's performance
was deficient. This requires showing that counsel made errors
so serious that counsel was not functioning as the
“counsel” guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that the deficient
performance prejudiced the defense. This requires showing
that counsel's errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.
Unless a defendant makes both showings, it cannot be said
that the conviction . . . resulted from a breakdown of the
adversary process that renders the result unreliable.
Id. “There is a strong presumption that legal
counsel is competent.” United States v.
Osterbock, 891 F.2d 1216, 1220 (6th Cir. 1989). In
addition, a “reviewing court must give a highly
deferential scrutiny to counsel's performance.”
Ward v. United States, 995 F.2d 1317, 1321
(6th Cir. 1993). “The reasonableness of counsel's
performance is to be evaluated from counsel's perspective
at the time of the alleged error and in light of all the
circumstances.” Kimmelman v. Morrison, 477
U.S. 365, 384 (1986). “The defendant must show that
there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different. A reasonable probability is a
probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694. Counsel
is not required to raise futile challenges in order to avoid
a claim of ineffective assistance. McQueen v.
Scroggy, 99 F.3d 1302, 1328 (6th Cir. 1996).
motion, Sinclair alleges an error of constitutional
magnitude-that his constitutional right to effective
assistance of counsel under the Sixth Amendment was violated.
Sinclair raises one argument in his pro se
ineffective assistance of trial counsel claim: counsel failed
to challenge the affidavit showing probable cause to search
the Snowden residence under Franks v. Delaware, 438
U.S. 154 (1978), when the affidavit misled the magistrate
judge into believing that it was Sinclair's residence by
use of the ...