United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING DEFENDANT'S § 2255
MOTION AND DENYING A CERTIFICATE OF APPEALABILITY
H. CLELAND UNITED STATES DISTRICT JUDGE
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.)
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.
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.)
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,
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.)
§ 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
“[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).
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.”
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.
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
“that the factual determination as to ...