United States District Court, E.D. Michigan, Southern Division
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
H. CLELAND UNITED STATES DISTRICT JUDGE.
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.)
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.
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.
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.,
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.,
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.)
§ 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
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.”
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;