United States District Court, E.D. Michigan, Northern Division
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.
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.
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.)
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.)
§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.)
Law and Analysis
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)).
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.
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.
Lockhart v. Fretwell, 506 U.S. 364, (1993), the
Court clarified the meaning of ...