United States District Court, E.D. Michigan, Southern Division
MEMORANDUM AND ORDER DENYING MOTION UNDER 28 U.S.C.
§ 2255 (DOC. 30) AND DECLINING TO ISSUE A CERTIFICATE OF
COHN UNITED STATES DISTRICT JUDGE.
a criminal case. Defendant/Petitioner, Dulante Harris,
proceeding pro se, has filed a motion vacate his sentence
under 28 U.S.C. § 2255 contending that his conviction
for car jacking does not qualify as a predicate “crime
of violence” to support his conviction under 18 U.S.C.
§ 924(c) after the Supreme Court's decisions in
Johnson v. United States, 135 S.Ct. 2551 (2015) and
Sessions v. Dimaya, 138 S.Ct. 1204 (2018). Harris
also argues that his counsel was ineffective for failing to
ask for a stay given the Supreme Court's decision in
Dimaya and that his plea agreement is void. The government
contends that the motion lacks merit. For the reasons that
follow, the motion will be denied for lack of merit.
evening in July 2017 Harris and a second gunman ambushed two
teenaged girls who were sitting in a 2017 Dodge Charger.
Harris pointed a gun at the young women and ordered them out
of the car. The victims exited the vehicle out of fear for
their lives. The assailants entered the Charger and fled the
scene. The victim driver contacted her father and then
reported the carjacking to the police. The next day, law
enforcement observed Harris driving the carjacked Dodge
Charger. Harris pulled the car into the driveway of a vacant
house and then walked to a nearby residence. The police
approached Harris as he sat on the front porch of that home.
Harris ran but was found hiding under clothing in a basement
closet. Harris was arrested and the closet was searched. In
the closet, the police found the key fob and vehicle
registration for the carjacked Charger. Police also located a
semi-automatic handgun inside the home. Harris was
subsequently picked out of a lineup by the victim driver.
was charged with carjacking and brandishing a firearm during
a crime of violence, in violation of 18 U.S.C. §§
2119 and 924(c). Harris plead guilty plea as charged under a
Rule 11 Agreement. Harris was sentenced to 30 days for the
carjacking followed by eighty-four (84) months imprisonment
for the use of the firearm. Harris did not appeal. Harris
then filed the instant motion under § 2255.
U.S.C. § 2255 provides:
A prisoner in custody under a sentence of a court established
by Act of Congress claiming the right to be released upon the
ground that the sentence imposed was in violation of the
Constitution or laws of the United States, or that the court
was without jurisdiction to impose such a 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 the sentence.
28 U.S.C. § 2255(a). To 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). 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, 165 F.3d
486, 488 (6th Cir. 1999).
“[§] 2255 is not a substitute for a direct appeal,
” Regalado v. United States, 334 F.3d 520, 528
(6th Cir. 2003) (citing United States v. Frady, 456
U.S. 152, 167-68 (1982)), “a prisoner must clear a
significantly higher hurdle than would exist on direct
appeal” to merit collateral relief, Frady, 456
U.S. at 166. Though 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
petitioner can prevail on a § 2255 motion alleging
non-constitutional error “by establish[ing] 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, 165 F.3d at 488 (internal quotation marks
omitted) (quoting United States v. Ferguson, 918
F.2d 627, 630 (6th Cir. 1990)). Accordingly, alleged
sentencing errors, including the proper application of the
guidelines, “does not warrant collateral relief under
§ 2255 absent a complete miscarriage of justice.”
Jones, 178 F.3d at 796.
has claimed ineffective assistance of counsel which may be
raised for the first time in a § 2255 motion.
Massaro v. United States, 538 U.S. 500, 508-09
(2003). To establish ineffective assistance of counsel under
the Sixth Amendment, Harris must satisfy the two-prong test
set forth in Strickland v. Washington, 466 U.S. 668
(1984). Harris must first 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 by the
Sixth Amendment.” Id. at 687. A court must
afford defense attorneys “wide latitude” and, in
analyzing their conduct under the Sixth Amendment, must make
“every effort” to “eliminate the distorting
effects of hindsight, to reconstruct the circumstances of
counsel's challenged conduct, and to evaluate the conduct
from counsel's perspective at the time.”
Id. at 689. Defense counsel are entitled to a
“strong presumption” that they made “all
significant decisions in the exercise of reasonable
professional judgment.” Cullen v. Pinholster,
131 S.Ct. 1388, 1407 (2011).
Harris succeeds in proving deficient performance, he must
next show that the deficient performance was prejudicial.
Prejudice requires more than “some conceivable effect
on the outcome of the proceeding, ” Harris must
demonstrate “a reasonable probability that, but for
counsel's unprofessional errors, the ...