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Wallace v. United States

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

February 8, 2018

Wayne Wallace, Petitioner,
v.
United States of America, Respondent.

          Anthony P. Patti Mag. Judge.

          ORDER DENYING PETITIONER'S MOTION TO VACATE SENTENCE [28] AND DENYING PETITIONER'S MOTION TO APPOINT COUNSEL [33]

          JUDITH E. LEVY United States District Judge.

         This matter is before the Court on petitioner Wayne Wallace's motion to vacate his sentence pursuant to 28 U.S.C. § 2255 (Dkt. 28) and his motion to appoint counsel pursuant to 18 U.S.C. § 300A (Dkt. 33). Petitioner argues that he received ineffective assistance of counsel at sentencing because his attorney failed to object to the application of a four-level sentencing enhancement for possession of a firearm in connection with another offense. For the reasons set forth more fully below, petitioners motions are DENIED.

         I. Introduction

         On August 25, 2016, petitioner Wallace was charged in a five-count indictment: one count of being a felon in possession of firearms in violation of 18 U.S.C. § 922(g)(1), one count of possession with intent to distribute tramadol in violation of 21 U.S.C. § 841(a)(1), one count of possession with intent to distribute oxycodone in violation of 21 U.S.C § 841(a)(1), one count of possessing a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A), and one count of being in possession of an unregistered firearm in violation of 26 U.S.C. § 5861(d). (Dkt. 9.) On January 4, 2017, petitioner pleaded guilty to two of the five counts: one count of being a felon in possession of firearms, and one count of possession with intent to distribute oxycodone. (Dkt. 23.) The remaining three counts were dismissed at sentencing.

         According to the agreed-upon factual basis for the plea agreement, petitioner was arrested on May 11, 2016, after he sold oxycodone to a confidential informant. (Dkt. 23 at 2.) Officers executed a search warrant at petitioner's residence two days later, during which police recovered 11 firearms, 28 oxycodone pills, and 468 tramadol pills. (Id. at 3.) The recovered firearms were: (1) a .45 caliber handgun loaded with 10 rounds of ammunition; (2) a .380 caliber handgun loaded with 6 rounds of ammunition; (3) a 9 mm handgun loaded with 10 rounds of ammunition; (4) a .45 caliber handgun loaded with 7 rounds of ammunition; (5) a 9 mm handgun loaded with 14 rounds of ammunition; (6) an unloaded 9 mm handgun; (7) two unloaded .38 caliber revolvers; (8) a .223 rifle loaded with 30 rounds of ammunition; (9) a 7.62x39 mm rifle loaded with 34 rounds of ammunition, and (10) a 9 mm fully automatic rifle loaded with 30 rounds of ammunition. (Id.)

         According to the Presentence Investigation Report (PSR), one of the 9 mm handguns was found on the floor in petitioner's bedroom near a bag of 28 oxycodone pills. (PSR at 6.) Additionally, the loaded .380 caliber handgun was found with 468 tramadol pills on petitioner's nightstand, the .38 caliber revolver was found in a case in petitioner's bedroom, and the remaining eight weapons were found between petitioner's mattress and bedframe. (Id.) A total of 1, 081 pieces of ammunition were located throughout the home. (Id.) A record check of the firearms revealed that none were registered and three were stolen. (Id.)

         The PSR was prepared on February 16, 2017. Pursuant to a stipulated order, objections to the report were to be filed by March 28, 2017. (Dkt. 24.) The PSR was revised on March 30, 2017, certifying that neither the government nor the petitioner filed any objections to the report. (PSR at A-1.)

         Petitioner's plea agreement set forth an agreed upon sentencing guideline range of 97 - 121 months, with the possibility that the guideline range would be higher if, and only if, the Court were to find that (1) the petitioner's criminal history category is higher than reflected on the plea agreement worksheets, or (2) the offense level should be higher because, after pleading guilty, the petitioner made a false statement to or withheld information from his probation officer, demonstrated a lack of acceptance of responsibility, obstructed justice, or completed any crime. (Dkt. 23 at 4-5.) The four-level enhancement for possession of a firearm in connection with another felony offense, pursuant to United States Sentencing Guidelines (U.S.S.G.) § 2K2.1(b)(6)(B), is listed in Worksheet A attached to the plea agreement. (Dkt. 23 at 10.) The plea agreement worksheets identified three points in petitioner's criminal history for a criminal history category of II (Dkt. 23 at 11); the PSR identified additional criminal history which raised the calculation to seven points, resulting in a criminal history category of IV. (PSR at 12.) Based on the updated calculations, the applicable sentencing guideline range set forth in the PSR was 121 - 151 months. Neither party objected to the updated guideline range calculation. (Dkt. 25 at 5 and Dkt. 26 at 2.)

         At sentencing, while arguing for a sentence below the applicable guideline range, petitioner's counsel conceded the fact that officers discovered drugs along with several guns at petitioner's home, and that petitioner admitted to trafficking drugs. Counsel emphasized, however, that there was no evidence - beyond the items found together during the search - that petitioner carried a weapon with him on any drug transaction, or that petitioner carried out any drug transactions in his home. (Sentencing Tr. May 10, 2017.) Ultimately, the Court imposed a sentence of 96 months - significantly below the agreed-upon guideline range, and below even the initial (lower) guideline range set forth in the plea agreement. (Dkt. 27.)

         II. Legal Standard

         Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”) of 1996, an inmate in federal custody who files a motion to vacate, set aside, or correct his sentence must demonstrate “that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such a sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” Shaw v. United States, 604 F.App'x. 473, 476 (6th Cir. 2015) (quoting 28 U.S.C. § 2255(a)). “A motion brought under § 2255 must allege one of three bases as a threshold standard: (1) an error of constitutional magnitude; (2) a sentence imposed outside 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) (citing United States v. Addonizio, 442 U.S. 178, 185- 86 (1979)).

         To prevail on a claim of constitutional error, a prisoner “must demonstrate the existence of an error of constitutional magnitude which had a substantial and injurious effect” on the proceedings. Hamblen v. United States, 591 F.3d 471, 473 (6th Cir. 2009) (citing Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003)). “Relief is warranted only where a petitioner has shown ‘a fundamental defect which inherently results in a complete miscarriage of justice.'” Griffen v. United States, 330 F.3d 733, 736 (6th Cir. 2003) (quoting Davis v. United States, 417 U.S. 333, 346 (1974)).

         To prevail under § 2255 on an ineffective assistance of counsel claim, “[petitioner] must establish (1) that his lawyer's performance was deficient as compared to an objective standard of reasonable performance, and (2) that there is a reasonable probability that the lawyer's errors prejudiced the outcome of the proceedings against him.” Arredondo v. United ...


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