United States District Court, E.D. Michigan, Southern Division
OPINION & ORDER (1) GRANTING DEFENDANT'S
MOTION TO RECONSIDER § 2255 EXTENSION (Dkt. 47); AND (2)
DENYING DEFENDANT'S MOTION TO VACATE SENTENCE
PURSUANT TO 28 U.S.C. § 2255 (Dkt. 48)
A. GOLDSMITH UNITED STATES DISTRICT JUDGE
March 15, 2017, the Honorable John O'Meara sentenced
Defendant Frank Washington to 120 months' imprisonment,
followed by thirty-six months' supervised release.
Judgment (Dkt. 38). Washington filed a motion asking the
Court to extend his time to file a motion to vacate his
sentence pursuant to 28 U.S.C. § 2255 (Dkt. 39), which
this Court denied for lack of jurisdiction. 4/23/2018 Order
(Dkt. 44). Washington then filed the two motions currently
pending before this Court: one asking the Court to reconsider
its decision denying his request for an extension, and one
requesting relief pursuant to 28 U.S.C. § 2255. For the
reasons that follow, the Court grants Washington's
request for an extension of time, but denies his § 2255
pleaded guilty to four counts of Hobbs Act robbery, 18 U.S.C.
§ 1951; and one count of use of a firearm during a crime
of violence, 18 U.S.C. § 924(c). Rule 11 Plea Agreement
(Dkt. 29). He was sentenced to 36 months on each of the Hobbs
Act counts, to run concurrently, and 84 months on the §
924(c) count. Judgment at 2.
December 14, 2017, Washington filed a motion for an extension
of time to file a motion pursuant to 28 U.S.C. § 2255.
His motion stated that he was placed in the Special Housing
Unit in October 2017, where he had limited access to the law
library. He therefore asked for an extension of the one-year
deadline to file a § 2255 motion. The Court denied his
request on April 23, 2018, as “a district court has no
jurisdiction to grant an extension for a § 2255 motion
that has not yet been filed.” 4/23/2018 Order at 1.
then filed his § 2555 motion, along with a request for
the Court to reconsider an extension, on June 12, 2018. In
his § 2255 motion, Washington argues that the Supreme
Court's decision in Sessions v. Dimaya, 138
S.Ct. 1204 (2018), requires this Court to set aside his
§ 924(c) conviction. Def. Mot. at 1.
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).
Court will first address Washington's request for an
extension of time to file his § 2255 motion, as this
determines whether the Court is able to consider the §
2255 motion. The ...