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Perrybey v. United States

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

May 10, 2018

AMEEN PERRYBEY, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER DENYING 28 U.S.C. § 2255 MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE [#77, #91] AND DENYING A CERTIFICATE OF APPEALABILITY

          GERSHWIN A. DRAIN United States District Judge

         I. INTRODUCTION AND PROCEDURAL BACKGROUND

         Presently before the Court is Petitioner Ameen Perrybey's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255, filed on June 28, 2016. Petitioner's § 2255 motion asserts that his counsel was ineffective during the plea negotiation process, as well as for failing to rectify an improper criminal history score, and lastly Petitioner asserts that the Supreme Court's recent decision in Johnson v. United States, 135 S.Ct. 2551(2015) requires that he be resentenced.

         On August 1, 2016, the Court entered an Order holding the matter in abeyance pursuant to the Sixth Circuit's decision in In re: Alford D. Embry, Movant, 831 F.3d 377 (6th Cir. 2016). On July 24, 2017, the Court entered an Order permitting Petitioner to file an amendment to his § 2255 motion to add a claim of ineffective assistance of counsel based on counsel's failure to seek credit for Petitioner's time in state custody. The Government filed a Response to Petitioner's § 2255 motion on September 28, 2017.

         II. FACTUAL BACKGROUND

         On May 13, 2014, Petitioner entered a guilty plea for conspiracy to possess with intent to distribute controlled substances in violation of 21 U.S.C. §§ 841(a)(1); 841(c) and 846. In the agreement, the parties anticipated a total offense level of 27 and a criminal history category of VI with a guidelines range of 130 to 162 months imprisonment. The offense level reflected both the weight of the drugs and a two-level enhancement based on the guns that were recovered during the execution of a search warrant at Petitioner's home. The government also requested that the Court reduce Petitioner's total offense level by two levels in anticipation of an upcoming amendment to the drug guidelines. This resulted in a guidelines range of 110 to 137 months imprisonment.

         At sentencing, the Government requested that the Court reduce Petitioner's guideline range by twenty percent and sentence him to a period of 96 months based on his agreement to cooperate against his co-defendants. The Court ultimately sentenced Petitioner to 90 months in custody. The judgment was entered on October 31, 2014.

         III. LAW & ANALYSIS

         A prisoner who moves to vacate his sentence under § 2255 must show that the sentence was imposed in violation of the Constitution or laws of the United States, that the court was without jurisdiction to impose such sentence, that the sentence was in excess of the maximum authorized by law, or that it is otherwise subject to collateral attack. 28 U.S.C. § 2255. In order for Petitioner to prevail under § 2255, he 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.” Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003). An action under § 2255 mandates that the district court grant a hearing “unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief . . . .” 28 U.S.C. § 2255.

         A threshold issue for § 2255 motions is whether the petitioner has brought the motion within the one-year statute of limitations period. 28 U.S.C. § 2255(f)(1)-(4). The statute provides in part:

A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of-
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court, and made retroactively ...

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