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Simon v. United States

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

March 7, 2019

LAMAR TERRELL SIMON, 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 (R. 627)

          PATRICIA T. MORRIS UNITED STATES MAGISTRATE JUDGE.

         I. RECOMMENDATION

         For the reasons set forth below, IT IS RECOMMENDED that Petitioner's motion to vacate (R. 627) be DENIED.

         II. REPORT

         A. Introduction

         On April 12, 2017, a First Superseding Indictment charged Petitioner with conspiracy to possess with intent to distribute and to distribute cocaine and heroin in violation of 21 U.S.C. § 846 and 841(a)(1) (Count 1) and with distribution of heroin and fentanyl in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) (Count 13). (R. 183.) A superseding information was filed on September 20, 2017, charging Petitioner with conspiracy to possess with intent to distribute and to distribute cocaine and heroin in violation of 21 U.S.C. § 846 and 841(a)(1) (Count 1). (R. 459.) Petitioner pleaded guilty to Count 1 of the superseding information and waived indictment, pursuant to a Rule 11 plea agreement, on September 20, 2017. (R. 463.) On January 11, 2018, a sentencing hearing was held and a judgment was entered the next day committing Petitioner to the Bureau of Prisons for 151 months. (R. 516.) Petitioner did not appeal his conviction or sentence.

         On January 10, 2019, Petitioner filed the instant motion to vacate sentence. (R. 627.) The government responded on February 12, 2019. (R. 643.)

         Petitioner's §2255 motion to vacate his sentence asserts that his trial counsel was ineffective for failing to object to the use of prior Michigan convictions for delivery of narcotics less than 50 grams and delivery of marijuana as predicate offenses for enhancement as a career offender under the sentencing guidelines, §4B1.2(b), citing Mathis v. United States, 136 S.Ct. 2243 (2016). (R. 627 at PageID.4797-4808.) In addition, Petitioner argues that his 2013 conviction does not qualify because he was not sentenced to more than one year in prison. The government responds that the Sixth Circuit recently considered and rejected the argument that it was improper for the trial court to use a Michigan conviction for delivery/manufacture of narcotics as a predicate offense under the career offender guidelines, citing United States v. House, 872 F.3d 748 (6th Cir. 2017). (R. 643 at PageID.4913-4915.) The government further argues that counsel cannot be deficient for failing to adopt arguments posed by Petitioner when those arguments are frivolous on the merits, citing Wilson-Simmons v. Lake County Sheriff's Dep't, 207 F.3d 818, 824 (6th Cir. 2000). (R. 643 at PageID.4915-4916.) Finally, the government notes that Petitioner's 2013 conviction was properly considered despite the fact that, as Petitioner argued, Petitioner did not serve a sentence of one year, since it is a crime punishable by imprisonment for more than one year. (R. 643 at PageID.4914-4915.)

         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-pronged 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.

         In Lockhart v. Fretwell, 506 U.S. 364, (1993), the Court clarified the meaning of “prejudice” under the Strickland standard:

Under our decisions, a criminal defendant alleging prejudice must show “that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” . . . Thus, an analysis focusing solely on the mere outcome determination, without attention to whether the ...

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