United States District Court, E.D. Michigan, Southern Division
ORDER DENYING MOVANT'S MOTION TO VACATE, SET
ASIDE, OR CORRECT SENTENCE 
J. Tarnow, Senior United States District Judge
Earl Payton filed a Motion to Vacate, Set Aside, or Correct
Sentence pursuant to 28 U.S.C § 2255  on May 13,
2016. The Government filed a Response  on June 24, 2016.
Because Payton's Motion is time-barred, the Court
DENIES the Motion to Vacate, Set Aside, or
Correct Sentence .
and Procedural Background
Plea and Sentencing
January 25, 2008, Payton pleaded guilty to Conspiracy to
Possess with Intent to Distribute and to Distribute
Controlled Substances in violation of 21 U.S.C. §§
841(a)(1) and 846. Payton's plea was entered pursuant to
a Rule 11 Plea Agreement.
Plea Agreement provided a sentencing guidelines range of 262
to 327 months, based on the application of the career
offender provisions of the Sentencing Guidelines. [Dkt. #32
at 4]. The Plea Agreement listed three prior burglary
convictions and one prior controlled substance conviction.
The Plea Agreement further provided that “the court
must impose a sentence of no less than 20 years because
defendant has a prior felony drug conviction.” [Dkt.
#32 at 17]. At the Sentencing Hearing on April 24, 2008,
neither Payton, nor his counsel, raised any objections to the
PSR or sentencing guidelines range. The Court sentenced
Payton to 25 years of imprisonment.
7, 2008, Payton filed a Notice of Appeal . Payton
challenged his conviction on the grounds that: the plea was
unknowing; he was provided ineffective assistance of counsel
in entering the plea bargain; and his within guidelines
sentence was based on false information.
9, 2010, the Sixth Circuit affirmed Payton's conviction.
U.S. v. Payton, 380 Fed.App'x 509, 510 (6th Cir.
2010). The Sixth Circuit summarized the primary issue raised
on appeal as follows:
When Payton pled guilty, he and the government mistakenly
assumed he had two prior felony drug convictions. Taking this
premise as a given, the government promised, as part of
Payton's plea agreement, to file an information listing
only one of Payton's prior convictions rather than
enhanc[ing] the mandatory minimum sentence to life
imprisonment by listing the second conviction.
Payton, as it turns out, had just one prior felony drug
conviction, meaning that he faced a mandatory minimum if
convicted of 240 months, not life imprisonment. The apparent
source of the misunderstanding was that Michigan authorities
charged him with three additional drug-related felonies in
2005, but he eventually pled guilty to a misdemeanor.
As to the instant offense, Payton claims he would not have
pled guilty and would not have waived his Fifth and Sixth
Amendment trial rights had he known the government never had
the option of seeking a mandatory life sentence.
Id. at 511.
Sixth Circuit rejected Payton's argument. In holding that
Payton failed to satisfy the plain error standard, the Court
explained that the district court “had no obligation to
probe whether Payton benefitted from each promise by the
government in the plea agreement, and it thus had no reason
to probe his criminal history.” Id. at 512.
The Court further explained that Payton failed to demonstrate
that the plea “prejudicially affected his substantial
rights, ” particularly where he “had little to
gain by going to trial.” Id. (noting that
“proceeding to trial likely ...