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United States v. Dorsey

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

May 31, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
DERAL DEWAYNE DORSEY, Defendant.

         OPINION AND ORDER GRANTING DEFENDANT'S MOTIONS FOR LEAVE TO SUPPLEMENT, DENYING DEFENDANT'S § 2255 MOTION TO VACATE HIS SENTENCE, DENYING A CERTIFICATE OF APPEALABILITY, AND DENYING AS MOOT DEFENDANT'S MOTION FOR A RESENTENCING HEARING

          ROBERT H. CLELAND UNITED STATES DISTRICT JUDGE.

         Pursuant to a Rule 11 agreement, Deral Dewayne Dorsey pleaded guilty to a being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). (ECF No. 27.) He was sentenced to 57 months imprisonment. (ECF No. 35.) Before the court is Defendant's Motion to Vacate Sentence under 28 U.S.C. § 2255. (ECF No. 38.)

         The government filed a response (ECF No. 46), and Defendant filed a reply (ECF No. 47). Defendant also filed a Motion for Leave to Supplement his § 2255 motion (ECF No. 42), Motion for Leave to Supplement his reply to the government's response (ECF No. 51), and Motion for a Resentencing Hearing (ECF No. 52). The court will grant Defendant's motions to supplement and consider his supplemental briefing (ECF Nos. 44, 50) in its analysis of the § 2255 motion.

         For the reasons stated below, Defendant's § 2255 Motion to Vacate Sentence will be denied. Consequently, his Motion for a Resentencing Hearing will be denied as moot.

         I. BACKGROUND

         The following facts are taken from Defendant's sentencing memorandum and request for downward variance. (ECF No. 31.) Police officers performed two controlled buys of heroin using a confidential informant at a residence in Westland, Michigan. (Id., PageID.164-65.) They subsequently obtained a search warrant for the residence, which they executed on December 4, 2014, after which they arrested Defendant. (Id.) Officers recovered five firearms inside the house. (Id., PageID.165.) During the search, officers also found .8 grams of heroin on Defendant's person, as well as some suspected marijuana. (Id.) A small amount of suspected Xanax was found elsewhere in the house. (Id.) Defendant admitted to the police that he snorted heroin. (Id., PageID.165, 166.) The heroin was chemically tested. (Id., PageID.166.)

         This account of the facts aligns with that in the Rule 11 plea agreement. (ECF No. 27.) The “factual basis for guilty plea” section explains that Defendant confirmed he lived at the residence searched and kept some of the firearms for protection. (Id., PageID.130.) The “relevant conduct” section details that Defendant consented to a strip search that day, approximately one gram of heroin was found in Defendant's groin area, and Defendant later confirmed that he sold heroin. (Id., PageID.133.)

         The Rule 11 agreement indicates that the government and Defendant disputed whether Defendant qualified for a four-point enhancement under § 2K2.1(b)(6)(B) of the U.S. Sentencing Guidelines. (Id., PageID.131.) As a result, the parties calculated different guideline ranges. The government proposed 46 to 57 months; Defendant suggested 33 to 41 months. (Id.) Defendant, through his counsel, argued in his sentencing memorandum and request for downward variance that there was insufficient evidence to support the four-point enhancement. (ECF No. 31, PageID.165-67.) Ultimately, he was sentenced to 57 months imprisonment. (ECF No. 35.)

         II. STANDARD

         Under § 2255, a prisoner sentenced by a federal court may “move the court which imposed the sentence to vacate, set aside or correct the sentence” on the grounds “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.” 28 U.S.C. § 2255(a). This statute “is not a substitute for a direct appeal, ” and “a prisoner must clear a significantly higher hurdle than would exist on direct appeal” to merit relief. Regalado v. United States, 334 F.3d 520, 528 (6th Cir. 2003) (citing United States v. Frady, 456 U.S. 152, 166-68 (1982)).

         Defendant grounds his motion upon the alleged inadequacy of his legal representation. To establish ineffective assistance of counsel under the Sixth Amendment, Defendant must satisfy the two-prong test set forth in Strickland v. Washington, 466 U.S. 668 (1984). First, Defendant must show that his counsel's performance was deficient, which “requires a showing that counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.” Id. at 687. Next, Defendant “must show that the deficient performance prejudiced the defense.” Id.

         III. DISCUSSION

         Defendant argues that he received ineffective assistance of counsel based on his attorney's failure to: object to the four-point enhancement under § 2K2.1(b)(6)(B); subpoena witnesses to verify the heroin purchases; subpoena a drug crime lab technician to testify regarding the heroin; and investigate the location of law enforcement individuals, as well as the existence of a police report and lab report confirming the substance seized was heroin. (ECF No. 38, PageID.201; ECF No. 44, PageID.227-29.) He cites Alleyne and Mathis to contest the heroin found on his person during the search being used as evidence to support the enhancement and argues that he is “actually innocent” of the enhancement because he was not convicted of a drug offense based upon the heroin. (ECF No. 38, PageID.202, 210, 212; ECF No. 44, PageID.230-31; ...


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