United States District Court, E.D. Michigan, Northern Division
L. LUDINGTON DISTRICT JUDGE.
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION ON
PETITIONER'S 28 U.S.C. § 2255 MOTION TO VACATE, SET
ASIDE, OR CORRECT SENTENCE (R.77)
Patricia T. Morris United States Magistrate Judge.
reasons set forth below, IT IS RECOMMENDED
that Petitioner's motion to vacate (R.77) be
DENIED and that the civil case be
to a Rule 11 plea agreement, Petitioner pleaded guilty to sex
trafficking of a minor in violation of 18 U.S.C. § 1591.
(R.33, 35, 37.) A sentencing hearing was held and on May 30,
judgment entered and Petitioner was sentenced to 190 months
incarceration and 5 years supervised release. (R.47.)
Petitioner did not file an appeal. After an extension of time
was granted, Petitioner filed the instant motion to vacate
under 28 U.S.C. § 2255. (R.77.) After extensions of time
were granted, Respondent filed a response on June 25, 2019.
(R.88.) The instant motion has been referred to the
undersigned (R.79) and is ready for report and
Law and Analysis
prevail on a § 2255 motion “‘a petitioner
must demonstrate the existence of an error of constitutional
magnitude which had 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) (quoting Griffin v. United
States, 330 F.3d 733, 736 (6th Cir. 2003)).
Non-constitutional errors are generally outside the scope of
section 2255 relief. United States v. Cofield, 233
F.3d 405, 407 (6th Cir. 2000). A movant can prevail on a
section 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) (quoting United States v.
Ferguson, 918 F.2d 627, 630 (6th Cir. 1990) (internal
quotation marks omitted)). Ineffective assistance of counsel
claims “may be brought in a collateral proceeding under
§ 2255 whether or not the petitioner could have raised
the claim on direct appeal.” Massaro v. United
States, 538 U.S. 500, 504 (2003).
of ineffective assistance of counsel are governed by the U.S.
Supreme Court's rule pronounced in Strickland v.
Washington, 466 U.S. 668 (1984). In Strickland,
the Court enunciated a two-pronged test that must be
satisfied to prevail on an ineffective assistance of counsel
claim. First, the movant must show that counsel's
performance was deficient in that it fell below an objective
standard of reasonableness. Id. at 688.
“Constitutionally effective counsel must develop trial
strategy in the true sense - not what bears a false label of
‘strategy' - based on what investigation reveals
witnesses will actually testify to, not based on what counsel
guesses they might say in the absence of a full
investigation.” Ramonez v. Berghuis, 490 F.3d
482, 488 (6th Cir. 2007). Second, the movant must show that
he was prejudiced by the deficiency to such an extent that
the result of the proceeding is unreliable.
Strickland, 466 U.S. at 688. It is not enough to
show that the alleged error “had some conceivable
affect on the outcome of the proceeding.” Id.
Rather, the movant must show that, but for counsel's
errors, the result would have been favorably different.
Id. at 693. Failure to make the required showing
under either prong of the Strickland test defeats
the claim. Id. at 700.
Supreme Court has explained that “[t]he essence of an
ineffective-assistance claim is that counsel's
unprofessional errors so upset the adversarial balance
between defense and prosecution that the trial was rendered
unfair and the verdict rendered suspect.” Kimmelman
v. Morrison, 477 U.S. 365, 374 (1986). This language
highlights the Supreme Court's consistent view that the
Sixth Amendment right to counsel is a safeguard to ensure
fairness in the trial process.
Lockhart v. Fretwell, 506 U.S. 364 (1993), the Court
clarified the meaning of “prejudice” under the
Strickland standard, explaining:
Under our decisions, a criminal defendant alleging prejudice
must show “that counsel's errors were so serious as
to deprive the defendant of a fair trial, a trial whose
result is reliable.” . . . Thus, an analysis focusing
solely on the mere outcome determination, without attention
to whether the ...