United States District Court, W.D. Michigan, Southern Division
J. QUIST UNITED STATES DISTRICT JUDGE.
Timothy Hawkins, has filed a Motion Under 28 U.S.C. §
2255 To Vacate, Set Aside, or Correct Sentence By a Person in
Federal Custody, seeking relief from his conviction by plea
to possession with intent to distribute heroin, cocaine, and
cocaine base, in violation of 21 U.S.C. §§
841(a)(1) and (b)(1)(C). On August 1, 2018, this Court
sentenced Hawkins to 144 months' imprisonment and three
years of supervised release. (No. 1:17-CR-197, ECF No. 38.)
The presentence report found that because of his criminal
history, Hawkins was a career offender, making his adjusted
offense level 32 instead of 26. After a three-level reduction
for acceptance of responsibility, Hawkins's total offense
level was 29. With a criminal history category of VI,
Hawkins's Sentencing Guidelines range was 151 to 188
months. At sentencing, Hawkins moved for a downward variance.
This Court granted Hawkins's motion and gave him “a
very slight departure to 144 months.” (No. 1:17-CR-197,
ECF No. 43 at PageID.232.)
appealed his plea and sentence. On January 11, 2019, the
United States Court of Appeals for the Sixth Circuit affirmed
the judgment. (No. 1:17-CR-197, ECF No. 44.)
filed the instant timely § 2255 motion on March 8, 2019.
Hawkins's sole statement in his motion, which the Court
considers his claim, is as follows: “Due to ineffective
assistance I was unable to make a downward departure request,
concerning the pending change in law which made my prior
conviction for Marijuana unable to use to enhance my [sic]
under § 851, therefore I seek resentencing.” (ECF
No. 1 at PageID.12.) Hawkins's brief provides a bit more
elaboration. As the Court understands it, Hawkins argues that
his counsel was ineffective for failing to seek a downward
variance or departure based on the change in definition of
“serious drug felony” under the First Step Act of
2018, which, as the Court understands Hawkins's argument,
would have precluded the use of Hawkins's prior
controlled substance offenses as predicates for application
of the career offender enhancement. Hawkins also appears to
argue that counsel should have argued that Hawkins's
prior marijuana convictions should not have been considered
for the career offender enhancement because recreational use
of marijuana is now legal in Michigan.
to Rule 4(b) of the Rules Governing Section 2255 Proceedings
for the United States District Courts, upon receiving a
§ 2255 Motion, the judge who imposed the sentence must
“promptly examine” the motion, and “[i]f it
plainly appears from the motion, any attached exhibits, and
the record of prior proceedings that the moving party is not
entitled to relief, the judge must dismiss the motion and
direct the clerk to notify the moving party.” Having
conducted the review required by Rule 4(b), the Court will
dismiss the motion because it is without merit.
other things, the First Step Act of 2018, Pub. L. No.
115-391, 132 Stat. 5194, amended the definition of what
constitutes a “serious drug felony” for purposes
of enhancements under 21 U.S.C. § 851. Hawkins contends
that his counsel, being aware of the impending change to the
definition of “serious drug felony” under 18
U.S.C. § 924(e)(2)(A) specified in the First Step Act,
should have argued that his prior conviction was not a
serious drug felony because Hawkins did not serve more than a
year on the sentence. (ECF No. 2 at PageID.16-17.)
argument that his counsel was ineffective lacks merit. As
noted above, the change to the definition of “serious
drug felony” made by § 401 of the First Step Act
pertained to enhancements under 21 U.S.C. § 851. Hawkins
was not sentenced based on an enhancement pursuant to §
851. In fact, Hawkins's Plea Agreement provided that the
government “agree[d] to move to dismiss the Information
and Notice of Prior Felony Drug conviction which would
enhance Defendant's sentence pursuant to 21 U.S.C. §
851.” (No. 1:17-CR-197, ECF No. 24 at PageID.83.) At
sentencing, the government explained to the Court that with
the § 851 enhancement, Hawkins would have been at a base
offense level of 34 under the career offender guideline, as
opposed to a base offense level of 31 without the
enhancement. (No. 1:17-CR-197, ECF No. 43 at PageID.218-19.)
Hawkins thus received the benefit of what the government
promised under the Plea Agreement by receiving a lower
sentence. Contrary to Hawkins's assertion, the First Step
Act did not affect the definition of “controlled
substance offense” under U.S.S.G. § 4B1.2(b).
Counsel cannot be ineffective for failing to raise a
meritless claim. Bradley v. Birkett, 192 Fed.Appx.
468, 475 (6th Cir. 2006).
Hawkins's argument based on the legality of recreational
use of marijuana in Michigan, the argument is frivolous.
First, recreational use of marijuana was not legalized in
Michigan until Michigan citizens voted on the issue in
November 2018. Marijuana use in Michigan was illegal at the
time Hawkins committed his controlled substance offenses.
More importantly, however, counsel was not required to make
an argument based on the results of an election that would
not occur for three more months. See Hooper v. United
States, No. 99-1287, 2000 WL 658037, at *2 (6th Cir. May
8, 2000) (noting that “this court has consistently held
that counsel is not required to be prescient”).
concluded that Hawkins is not entitled to relief, the Court
must consider whether a certificate of appealability should
issue under 28 U.S.C. § 2253(c)(2). A certificate should
issue if Hawkins has demonstrated a “substantial
showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). The Sixth Circuit has disapproved
issuance of blanket denials of a certificate of
appealability. Murphy v. Ohio, 263 F.3d 466, 467
(6th Cir. 2001). Rather, the district court must
“engage in a reasoned assessment of each claim”
to determine whether a certificate is warranted. Id.
at 467. Each issue must be considered under the standards set
forth by the Supreme Court in Slack v. McDaniel, 529
U.S. 473, 120 S.Ct. 1595 (2000). Murphy, 263 F.3d at
467. Consequently, this Court has considered Hawkins's
claim under the Slack standard.
Slack, 529 U.S. at 484, 120 S.Ct. at 1604, to
warrant a grant of the certificate, “[t]he petitioner
must demonstrate that reasonable jurists would find the
district court's assessment of the constitutional claims
debatable or wrong.” The Court finds that reasonable
jurists could not find that this Court's dismissal of
Hawkins's claim was debatable or wrong. Therefore, the
Court will deny Hawkins a certificate of appealability.
the Court will dismiss Hawkins's § 2255 Motion and