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Dugan v. United States

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

February 28, 2018

JOHN DEREK DUGAN, Petitioner
v.
UNITED STATES OF AMERICA, Respondent.

          THOMAS L. LUDINGTON DISTRICT JUDGE.

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION ON PETITIONER'S 28 U.S.C. § 2255 MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE AND RESPONDENT'S MOTION TO DISMISS PETITION (DOCS. 22, 27)

          Patricia T. Morris United States Magistrate Judge.

         I. RECOMMENDATION

         For the reasons set forth below, IT IS RECOMMENDED that Petitioner's motion to vacate (Doc. 22) be DENIED and that Respondent's motion to dismiss (Doc. 27) be GRANTED.

         II. REPORT

         A. Introduction

         On February 11, 2015, Petitioner was charged in an indictment with two counts of distribution of cocaine in violation of 21 U.S.C. § 841(a)(1)(Counts 1 and 2), one count of distribution of hydromorphone in violation of 21 U.S.C. § 841(a)(1)(Count 3), one count of distribution of heroin in violation of 21 U.S.C. § 841(a)(1)(Count 4), and one count of possession with intent to distribute heroin in violation of 21 U.S.C. § 841(a)(1)(Count 5). Petitioner was detained pending trial. (Doc. 9.) Petitioner pleaded guilty to Count 5 of the indictment, pursuant to a Rule 11 plea agreement, on April 30, 2015. (Doc. 14.) On July 30, 2015, a sentencing hearing was held and on August 3, 2015, judgment entered committing Petitioner to the Bureau of Prisons for 140 months. (Doc. 21 at 2.)

         On December 19, 2017, Petitioner filed the instant motion to vacate sentence. (Doc. 22.) In lieu of a response, Respondent filed the instant motion to dismiss the petition (Doc. 27.)

         Petitioner's §2255 motion to vacate his sentence asserts that he should not have been sentenced under the career offender provision of the guidelines because his prior Michigan controlled substance convictions do not fall within the definition of a federal controlled susbtance offense under USSG 4B1.1. His prior convictions are for “del/mfr marijuana” in 2205, “delivery of cocaine < 50 grams” in 2006, “del/mfr marijuana” in 2006, “del/mfr marijuana” in 2012, and “delivery of narcotic < 50 grams” in 2012. (Doc. 14 at ¶ 52.)

         B. Law and Analysis

         1. Legal Standards

         To prevail on a § 2255 motion “‘a petitioner must demonstrate the existence of an error of constitutional magnitude which had a substantial and injurious effect or influence on the guilty plea or the jury's verdict.'” Humphress v. United States, 398 F.3d 855, 858 (6th Cir. 2005) (quoting Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003)). Non-constitutional errors are generally outside the scope of § 2255 relief. United States v. Cofield, 233 F.3d 405, 407 (6th Cir. 2000). A movant can prevail on a § 2255 motion alleging non-constitutional error only by establishing a “‘fundamental defect which inherently results in a complete miscarriage of justice, or, an error so egregious that it amounts to a violation of due process.'” Watson v. United States, 165 F.3d 486, 488 (6th Cir. 1999) (quoting United States v. Ferguson, 918 F.2d 627, 630 (6th Cir. 1990) (internal quotation marks omitted)).

         Claims of ineffective assistance of counsel are governed by the Supreme Court's rule pronounced in Strickland v. Washington, 466 U.S. 668 (1984). In Strickland, the Court enunciated a two-prong test that must be satisfied to prevail on an ineffective assistance of counsel claim. First, the movant must show that counsel's performance was deficient in that it fell below an objective standard of reasonableness. Id. at 688. “Constitutionally effective counsel must develop trial strategy in the true sense-not what bears a false label of ‘strategy'-based on what investigation reveals witnesses will actually testify to, not based on what counsel guesses they might say in the absence of a full investigation.” Ramonez v. Berghuis, 490 F.3d 482, 489 (6th Cir. 2007). Second, the movant must show that he was prejudiced by the deficiency to such an extent that the result of the proceeding is unreliable. Strickland, 466 U.S. at 688. It is not enough to show that the alleged error “had some conceivable effect on the outcome of the proceeding.” Id. at 693. Rather, the movant must show that, but for counsel's errors, the result would have been favorably different. Id. at 694. Failure to make the required showing under either prong of the Strickland test defeats the claim. Id. at 700.

         The Supreme Court has explained that “[t]he essence of an ineffective-assistance claim is that counsel's unprofessional errors so upset the adversarial balance between defense and prosecution that the trial was rendered unfair and the verdict rendered suspect.” Kimmelman v. Morrison, 477 U.S. 365, 374 (1986). This language highlights the Supreme Court's consistent view that the Sixth Amendment right to counsel is a safeguard to ensure fairness in the trial process.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;In Lockhart v. Fretwell, 506 U.S. 364, (1993), the Court clarified the meaning of ...


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