United States District Court, E.D. Michigan, Southern Division
ORDER DENYING DEFENDANT-PETITIONER'S MOTION UNDER
28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT
SENTENCE [28]
Nancy
G. Edmunds, United States District Judge.
I.
Background
On May
21, 2008, Defendant-Petitioner Tommy Lee Brooks pleaded
guilty to counts one and two of the indictment brought
against him-possession with intent to distribute controlled
substances (over five grams of cocaine base) in violation of
21 U.S.C. § 841(a)(1) and possession of a firearm in
furtherance of a drug trafficking crime in violation of 18
U.S.C. § 924(c). (Dkt. 20.) On August 19, 2008, the
Court sentenced Defendant to be imprisoned for a term of 120
months on count one and 60 months on count two to run
consecutive.[1] (Dkt. 22.) Defendant did not file a direct
appeal.
The
matter is now before the Court on Defendant's pro se
motion to vacate, set aside, or correct his sentence under 28
U.S.C. § 2255. (Dkts. 28, 33.) Defendant challenges his
conviction and sentence on count two and argues that he is
entitled to relief based upon the Supreme Court case of
Sessions v. Dimaya, 138 S.Ct. 1204 (2018). The
government opposes the motion. (Dkt. 32.) For the reasons set
forth below, the Court DENIES Defendant's § 2255
motion.
II.
Standard of Review
Under
§ 2255(a), “[a] prisoner in custody under sentence
of a [federal] court . . . claiming the right to be released
. . . may move the court which imposed the sentence to
vacate, set aside or correct the sentence.” To prevail
on a § 2255 motion, the petitioner must allege:
“(1) an error of constitutional magnitude; (2) a
sentence imposed outside the statutory limits; or (3) an
error of fact or law that was so fundamental as to render the
entire proceeding invalid.” Mallett v. United
States, 334 F.3d 491, 496-97 (6th Cir. 2003); see
also Anderson v. United States, 246 F.Supp.2d 758, 760
(E.D. Mich. 2003).
III.
Analysis
Under
§ 924(c)(1)(A), it is a federal crime to possess a
firearm in furtherance of “any crime of violence or
drug trafficking crime.” The statute defines
“drug trafficking crime” in § 924(c)(2) and
“crime of violence” in § 924(c)(3).
Defendant argues that his § 924(c) conviction should be
vacated because the language in the § 924(c)(3)(B)
residual clause is identical to the language in 18 U.S.C.
§ 16(b), which the Supreme Court found
unconstitutionally vague in Dimaya, 138 S.Ct. at
1210.
Here,
the offense underlying Defendant's § 924(c)
conviction-possession with intent to distribute controlled
substances in violation of § 841(a)(1) as charged in
count one of the indictment-is a drug trafficking crime, not
a crime of violence.[2] See § 924(c)(2). Therefore,
the definitions of “crime of violence” as set
forth in § 924(c)(3) are wholly inapplicable to
Defendant's conviction, and Dimaya has no impact
on this case. In sum, regardless of whether §
924(c)(3)(B) is unconstitutionally vague based on the Supreme
Court's reasoning in Dimaya, Defendant is not
entitled to relief.[3]
IV.
Certificate of Appealability
Federal
Rule of Appellate Procedure 22(b) provides that an appeal may
not proceed unless a certificate of appealability is issued
under 28 U.S.C. § 2253(c). Rule 11 of the Rules
Governing Section 2255 Proceedings states that a
“district court must issue or deny a certificate of
appealability when it enters a final order adverse to the
applicant.” To receive a certificate of appealability,
“a petitioner must show that reasonable jurists could
debate whether (or, for that matter, agree that) the petition
should have been resolved in a different manner or that the
issues presented were adequate to deserve encouragement to
proceed further.” Miller-El v. Cockrell, 537
U.S. 322, 336 (2003) (internal quotation marks and citation
omitted).
For the
reasons stated in this opinion, the Court will deny Defendant
a certificate of appealability because he has failed to show
that reasonable jurists could debate whether his petition
should have been resolved in a different matter.
V.
Conclusion
Based
upon the foregoing, it is ordered that Defendant's
petition for post-conviction relief is DENIED WITH PREJUDICE.
It is further ordered ...