United States District Court, E.D. Michigan, Southern Division
ORDER DENYING MOTIONS UNDER 28 U.S.C. § 2255 TO
VACATE, SET ASIDE, OR CORRECT SENTENCE (DOC. NOS 57, 63, 64),
ORDER DISMISSING CIVIL CASE NO. 16-12858 AND ORDER DENYING
CERTIFICATE OF APPEALABILITY
PAGE HOOD CHIEF JUDGE, UNITED STATES DISTRICT COURT
November 17, 2014, Defendant pled guilty to one count of
conspiracy to distribute 100 or more marijuana plants on or
about June 1, 2010, in violation of 21 U.S.C. §§
841(a) and 846. At the time, Defendant agreed that: (a) he
was a career offender because of prior convictions for
assault with intent to do great bodily harm less than murder
and attempted delivery of a controlled substance; and (b) his
applicable range pursuant to the U.S. Sentencing Guidelines
(the “Guidelines”) was 188-235 months, with a
mandatory 60 month sentence. Defendant's Rule 11 plea
agreement provided that he could not appeal his sentence if
the sentence did not exceed the maximum term under the
Guidelines (235 months). (Doc. No. 39, Para. 7). On May 21,
2015, the Court sentenced Defendant to 120 months in prison
for one count of conspiracy to distribute a controlled
substance. (Doc. No. 49).
5, 2015, Defendant filed a Notice of Appeal concerning his
sentence. (Doc. No. 50). On October 7, 2015, Defendant's
appeal was dismissed by the Sixth Circuit due to the appeal
waiver in his Rule 11 plea agreement. On August 3, 2016,
Defendant filed a motion to vacate his sentence under 28
U.S.C. § 2255, followed by amendments on February 14,
2017 and March 13, 2017. (Doc Nos. 57, 63, & 64). The
motion to vacate was stayed for several months pending a
ruling by the United States Supreme Court in Beckles v.
United States, 137 S.Ct. 886 (2017). The Government
filed a response to Defendants Section 2255 Motion on May 19,
2017, after the stay was lifted. (Doc. No. 66). Defendant
filed replies on June 8, 2017 and June 12, 2017. (Doc. Nos.
67 & 68).
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).
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.
Osterbrock, 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).
alleges that the Guidelines used to sentence him are
incorrect and he is actually innocent of being a career
offender. He also argues that his constitutional right to
effective assistance of counsel under the Sixth Amendment was
violated because his counsel did not raise an argument
regarding the constitutionality of his sentence on appeal and
did not explain the consequences of Defendant's appeal
Defendant was a Career Offender under the Guidelines
alleges that the Guidelines range used to sentence him was
incorrect because he is not a career offender. Under the
Guidelines, a defendant is considered to be a career offender
if “(1) the defendant was at least eighteen years old
at the time the defendant committed the instant offense of
conviction; (2) the instant offense of conviction is a felony
that is either a crime of violence or a controlled substance
offense; and (3) the defendant has at least two ...