United States District Court, E.D. Michigan, Southern Division
OPINION & ORDER DENYING DEFENDANT'S MOTION TO
VACATE SENTENCE PURSUANT TO 28 U.S.C. § 2255 (Dkts. 294,
A. Goldsmith, United States District Judge.
Jerome Andrews pleaded guilty to four counts of interference
with commerce by robbery, 18 U.S.C. § 1951(a), and four
counts of use of a firearm during and in relation to a crime
of violence, 18 U.S.C. § 924(c). He was sentenced on
October 17, 2013, and did not appeal his conviction. Now, he
seeks relief under 28 U.S.C. § 2255 in light of the
Supreme Court's holdings in Dimaya v. Sessions,
138 S.Ct. 1204 (2018), and Dean v. United States,
137 S.Ct. 1170 (2017). For the reasons that follow, the Court
denies Andrews' request.
21, 2018, Defendant Jerome Andrews filed a letter with the
Court, wherein he requested the appointment of an attorney
and also referenced the Supreme Court's recent decision
in Dimaya, 138 S.Ct. 1204. See 5/21/2018
Request for Appointment of Counsel (Dkt. 294). On June 14,
2018, recognizing that Andrews' request could be
characterized as a motion to vacate, set aside, or correct
his sentence pursuant to 28 U.S.C. § 2255, this Court
issued an order requiring Andrews to inform the Court whether
he would like his filing to be construed as such a motion.
See 6/14/2018 Order regarding Defendant's
request (Dkt. 298).
subsequently filed a letter stating that he “would like
to amend both fillings [sic] as a 28 U.S.C. § 2255
motion.” See 8/8/2018 Letter (Dkt. 305). The
Court therefore construed his May 21, 2018 filing as a motion
for relief under § 2255. The Government then filed a
response to the motion (Dkt. 309).
STANDARD OF REVIEW
motion is brought pursuant to 28 U.S.C. § 2255, which
provides in pertinent part:
A prisoner in custody under sentence of a court established
by Act of Congress claiming the right to be released upon the
ground that the sentence was imposed in violation of the
Constitution or laws of the United States, or that the court
was without jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by law, or
is otherwise subject to collateral attack, may move the court
which imposed the sentence to vacate, set aside or correct
28 U.S.C. § 2255.
prevail on a § 2255 motion, “a petitioner must
demonstrate the existence of an error of constitutional
magnitude which has 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). Non-constitutional errors are
generally outside the scope of § 2255 relief. See
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, 175 F.3d 486, 488 (6th Cir. 1999).
should grant a hearing to determine the issues and make
findings of fact and conclusions of law on a § 2255
motion “[u]nless 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(b). No.
evidentiary hearing is required if the petitioner's
allegations “cannot be accepted as true because they
are contradicted by the record, inherently incredible, or
conclusions rather than statements of fact.”
Valentine v. United States, 488 F.3d 325, 333 (6th
Cir. 2007) (quoting Arredondo v. United States, 178
F.3d 778, 782 (6th Cir. 1999)). “If 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.” Rules
Governing § 2255 Cases, Rule 4(b).
filings contain only passing references to Sessions v.
Dimaya, 138 S.Ct. 1204 (2018), and Dean v. United
States, 137 S.Ct. 1170 (2017). In Dimaya, the
Supreme Court analyzed the definition of “aggravated
felony” in the Immigration and Nationality Act, 8
U.S.C. § 1101(a)(43). An “aggravated felony”
includes a “crime of violence, ” as defined in
section 16 of title 18, which covers:
(a) an offense that has as an element the use, attempted use,
or threatened use of physical force against the person or