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United States v. Gordon

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

July 29, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
ALXLEOTOLD GORDON, Defendant.

          OPINION AND ORDER DENYING DEFENDANT'S § 2255 MOTION AND DENYING A CERTIFICATE OF APPEALABILITY

          ROBERT H. CLELAND UNITED STATES DISTRICT JUDGE

         Pursuant to a Rule 11 agreement, Alxleotold Gordon pleaded guilty to: two counts of distribution of and possession with intent to distribute a controlled substance; one count of possession of a firearm in furtherance of a drug trafficking crime; and one count of possession of a firearm by a previously convicted felon. (ECF No. 54.) He was sentenced to 360 months imprisonment. (ECF No. 72.)

         Before the court is Defendant's Motion to Vacate Sentence under 28 U.S.C. § 2255. (ECF No. 79.) The Government filed a response (ECF No. 89), and Defendant filed a reply (ECF No. 91). Defendant also filed a letter requesting relief, which the court construes as a supplement to his § 2255 motion. (ECF No. 92.) For the reasons stated below, Defendant's motion will be denied.

         I. BACKGROUND

         On January 20, 2017, Defendant sold Lori Ann Pangborn heroin, which also contained fentanyl. (ECF No. 54, PageID.198.) Pangborn then delivered the drugs to an individual referred to as R.D. (Id., PageID.199.) Later that night, Westland EMS responded to a call of a man not breathing, found R.D. unresponsive, and pronounced him dead at the scene. (ECF No. 89, PageID.463.) As a result of his use of the drugs Pangborn and Defendant distributed, R.D. died from fentanyl toxicity. (ECF No. 54, PageID.199.)

         Four days later, Westland Police performed a search of Defendant's home and arrested him. (Id.) According to the Government, Defendant confessed after he was given Miranda warnings that he sold heroin to Pangborn and that she had informed him the person she delivered the latest heroin to had died. (ECF No. 89, PageID.464.)

         Defendant pleaded guilty pursuant to a Rule 11 agreement, which predicted a guideline range of 420 months to life. (ECF No. 54, PageID.200.) Defendant admitted that: he knowingly and intentionally possessed heroin and fentanyl with intent to distribute a mixture of both drugs; in furtherance of such activity, he was illegally in possession of firearms; and prior to this event he was convicted of criminal offenses punishable by more than one year in prison, and so was unable to legally possess any firearms. (Id., PageID.199.) He was sentenced to 360 months in custody, well below the guidelines range. (ECF No. 72.) The court commented at sentencing upon defense counsel's capable and sufficient advocacy for Defendant and confirmed with Defendant at both his plea hearing and sentencing his satisfaction with counsel's representation. (ECF No. 84, PageID.445; ECF No. 78, PageID.371, 392.)

         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)).

         Consequently, “[t]o prevail on a § 2255 motion alleging constitutional error, the petitioner must establish an error of constitutional magnitude which had a substantial and injurious effect or influence on the proceedings.” Watson v. United States, 165 F.3d 486, 488 (6th Cir. 1999) (citing Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993)). 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 and citations omitted).

         Defendant grounds his motion in part 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 makes three arguments in his motion. The first alleges a due process violation based on an error of the court, while the second and third allege ineffective assistance of counsel. Defendant also requests an evidentiary hearing. The court will address each of Defendant's arguments in turn.

         First, Defendant argues that the court was “clearly erroneous” in determining that R.D.'s death was caused by Defendant's distribution of fentanyl-laced heroin to Pangborn. (ECF No. 79, PageID.395, 402.) He refers to this as “an unsupported factual finding” and claims there was insufficient evidence for the court to find that the heroin he gave to Pangborn was the “exact same heroin” that resulted in R.D.'s death. (Id., PageID.403.) Additionally, Defendant argues ‚Äúthat the factual determination as to ...


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