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McKinney v. United States

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

February 14, 2018

BRENT McKINNEY, Petitioner,


          DAVID M. LAWSON United States District Judge

          Petitioner Brent McKinney was convicted by a jury after a four-day trial of several crimes stemming from his operation of a home-made methamphetamine laboratory in the basement of a home where a minor child lived. After trial, he renewed and fully briefed his mid-trial motion for judgment of acquittal, which was denied. He did not directly appeal his convictions or sentences.

         About a year later, McKinney filed the present motion to vacate his sentence under 28 U.S.C. § 2255 and motion to reduce his sentence under 18 U.S.C. § 3583(c). The Court appointed counsel for him under the Criminal Justice Act (CJA). In his section 2255 motion, McKinney alleged that his trial attorney was ineffective by failing to file any motion to suppress certain physical evidence that was seized by police during a warrantless search of the defendant's bedroom, and he asked for an evidentiary hearing and a new trial. Sometime later, McKinney apparently reached an impasse with his CJA-appointed attorney and asked that he be discharged. The Court obliged. McKinney then supplemented his motion with additional allegations of ineffective assistance of trial counsel, and raised another sentencing issue, this one based on a challenge to a sentencing guideline provision addressed in Johnson v. United States, __ U.S. __, 135 S.Ct. 2551 (2015). The government has responded to the section 2255 motion and supplements.

         An evidentiary hearing is not necessary to resolve the issues raised in any of the motions, and McKinney is not entitled to relief. The motion to vacate sentence (and its supplements) and the motion to reduce sentence will be denied.


         A grand jury charged McKinney with conspiracy to manufacture methamphetamine (Count 1); conspiracy to manufacture methamphetamine on a premises where a child is present (Count 2); maintaining a drug-involved premises (Count 3); endangering life while manufacturing methamphetamine (Count 4); unlawful possession of material or equipment used to manufacture methamphetamine (Count 5); and possessing a firearm during and in relation to a drug trafficking crime (Count 6). The trial jury acquitted him of the firearm charged and found him guilty of all the others.

         The investigation began with a tip and a search.

         City of Port Huron Police Officer Nicholas Godwin testified at trial about the search of the home where McKinney then lived with his co-defendants Robert Folliard and Amber King, who also testified at trial. On January 17, 2013, Godwin was working with the St. Clair County Drug Task Force, when a Port Huron police officer informed him about a call that had been received involving the welfare of a young girl. The officer reported to Godwin that Brent McKinney reportedly was cooking methamphetamine in a home at 2611 Gratiot, where McKinney lived with two other adults and a child. Godwin consulted his supervisor, who directed him to go to the residence and investigate the tip. Officers arrived at the home around 10:30 p.m. Godwin knocked on the door, and it was answered by Folliard. Godwin stated that police were there to check on the welfare of a young child and investigate the report that methamphetamine was being made in the house.

         Folliard stated that the child was upstairs in the house asleep, and his girlfriend, Ms. King, was upstairs in the shower. He told police that there was no methamphetamine manufacturing going on in the home. Folliard also told police that McKinney lived downstairs, in the basement, but that McKinney was not at home.

         Folliard let the officers into the house and told them they could look around the house if they wanted to. Officers went upstairs and observed a young girl sleeping in a bedroom. They then went back downstairs and spoke to Folliard again about McKinney and the report of methamphetamine manufacturing.

         After speaking with Folliard, the officers searched the main floor of the home and then went to the kitchen, where stairs led to the basement. As they went downstairs, Folliard warned the police that McKinney kept a pit bull in his room. Folliard followed the officers downstairs and then went into McKinney's bedroom to secure the dog. While they were standing in the common area of the basement, officers observed a 20-ounce soda bottle sitting near a laundry tote, with plastic tubing sealed to the top and leading outside. Godwin recognized the bottle apparatus as a “gas generator” commonly used for producing methamphetamine. After Folliard removed the dog from the bedroom and took it outside, police entered the room to see if McKinney was there, but he was not. While they were in the bedroom, officers saw in plain sight “a coffee grinder, cold packs, [what] appeared to be used coffee filters and some two-liter bottles that appeared to be old reaction vessels from the methamphetamine cooks.” Some of the items recovered subsequently were admitted as physical evidence at trial.

         Other witnesses testified that McKinney resided in a bedroom located in the basement of a house in Port Huron, Michigan owned by Folliard and King. Folliard and King lived on the first and second floors of that house with Folliard's six-year-old daughter. They had been charged as co-defendants with McKinney, but they pleaded guilty and testified against McKinney at trial. Together with other witnesses - also former co-defendants - they testified that they purchased pseudoephedrine at McKinney's request and furnished it to him as an ingredient for the methamphetamine he manufactured in the basement of Folliard's home. Those cooperating witnesses also described the leniency agreements they made with the government and were subject to cross-examination about them.

         McKinney made a mid-trial motion for judgment of acquittal, which the Court took under advisement. The jury returned its verdict, and on March 12, 2014, the Court denied the defendant's mid-trial motion for a judgment of acquittal in a published opinion. United States v. McKinney, 3 F.Supp.3d 664 (E.D. Mich. 2014).

         The sentencing hearing was held on March 13, 2014. In calculating the sentencing guideline range, the Court found that the base offense level was 16, which corresponded to responsibility for between 5 and 10 grams of methamphetamine, based on the 8.8 grams recovered and verified by police. See U.S.S.G. § 2D1.1(c)(12) (2013). The Court rejected the government's argument for assessment of a higher drug quantity and the probation department's recommendation for a two-level enhancement based on involvement of a firearm under § 2D1.1(b)(1). The Court then applied a “child endangerment” enhancement under guideline section 2D1.1(b)(13)(D), which requires either a six-level increase in the offense level or, if the resulting level is less than 30, an increase in the total offense level to 30. The Court rejected a recommendation of a four-level enhancement based on playing a “leadership role” in a drug conspiracy, leaving the defendant with a net offense level of 30. Combined with a criminal history category of V, the resulting guideline range was 151 to 188 months. The Court granted the defendant's request for a downward variance based on its consideration of his troubled family history and sentenced McKinney to a below-guidelines sentence of 100 months on Counts 1, 3, 4, and 5 of the indictment, to run concurrently, and 20 months on Count 2 to run consecutive to the sentence on Counts 1, 3, 4, and 5.

         McKinney filed his motion to reduce sentence on November 18, 2014 and his 2255 petition on March 25, 2015. He did not pursue any direct appeal of his conviction or his sentence.

         II. 2255 Motion

         A federal prisoner challenging his sentence under section 2255 must show that the sentence “was imposed in violation of the Constitution or laws of the United States, ” the sentencing court lacked jurisdiction, the sentence exceeds the maximum penalty allowed by law, or it “is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). “A prisoner seeking relief under 28 U.S.C. § 2255 must allege either: ‘(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.'” Short v. United States, 471 F.3d 686, 691 (6th Cir. 2006) (quoting Mallett v. United States, 334 F.3d 491, 496-97 (6th Cir. 2003)).

         A claim that could have been raised on direct appeal generally is not reviewable in a section 2255 motion. Bousley v. United States, 523 U.S. 614, 621 (1998). However, a claim that “cannot otherwise be reviewed for the first time on a § 2255 motion can be reviewed as part of a successful claim that counsel provided ineffective assistance.” Weinberger v. United States, 268 F.3d 346, 351 (6th Cir. 2001). Claims of ineffective assistance of counsel are properly raised in a section 2255 ...

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