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United States v. Sinclair

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

September 11, 2017

UNITED STATES OF AMERICA, Plaintiff-Respondent,
v.
DURAND SINCLAIR, Defendant-Petitioner. Civil Case No. 16-11000

          ORDER DENYING MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE AND DISMISSING CIVIL ACTION

          Denise Page Hood Chief Judge, United States District Court

         I. BACKGROUND

         On June 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).

         Sinclair 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.

         II. ANALYSIS

         A. Standard of Review

         Section 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).

         A court 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).

         Where a 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).

         B. Ineffective Assistance of Counsel Claim: Failure to Challenge the Affidavit/Franks v. Delaware

         The 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).

         In his 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 ...


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