United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING DEFENDANT'S MOTION TO
VACATE SENTENCE UNDER 28 U.S.C. § 2255, DENYING
DEFENDANT'S MOTION TO AMEND, AND DENYING AS MOOT
DEFENDANT'S MOTIONS TO COMPEL
H. CLELAND UNITED STATES DISTRICT JUDGE.
Fonville was convicted by a jury of possession with intent to
distribute 28 grams or more of crack cocaine in violation of
21 U.S.C. § 841(a)(1). (ECF No. 33.) He was sentenced to
97 months imprisonment. (ECF No. 40, PageID.244.) His
conviction and sentence were affirmed by the Sixth Circuit on
direct appeal. (ECF No. 57.)
the court is Defendant's Motion to Vacate Sentence under
28 U.S.C. § 2255. (ECF No. 62.) The government filed a
response (ECF No. 67), and Defendant filed a reply (ECF No.
69). Defendant also filed a Motion to Amend the § 2255
motion (ECF No. 70) and two Motions to Compel the resolution
of his § 2255 motion (ECF Nos. 71, 72). For the reasons
stated below, Defendant's Motion to Vacate Sentence and
Motion to Amend will be denied, and the Motions to Compel
will be denied as moot.
case arises out of a traffic stop on October 17, 2013.
Defendant was driving on I-94 and pulled over by the police
after changing lanes without signaling. Defendant had been
under investigation by the DEA for suspected narcotics
trafficking, and the police officers were aware that there
was an active warrant for his arrest. (ECF No. 25,
PageID.89-91, 127-28.) According to the officers, Defendant
consented to a search of the vehicle. (Id.,
PageID.97, 99.) A drug-sniffing dog arrived at the scene and
alerted to the presence of drugs in the vehicle. Defendant
was arrested, and the vehicle was removed to the local police
precinct. There, the vehicle was searched more thoroughly,
and over 100 grams of crack cocaine were found in the
driver's side window-control console.
being indicted by a grand jury for possession with intent to
distribute crack cocaine, Defendant filed a Motion to
Suppress challenging the legality of the search and seizure.
(ECF Nos. 17, 20.) The court held a hearing on the motion.
(ECF No. 25.) The officers testified that when they conducted
the traffic stop, Defendant volunteered he had an outstanding
warrant for nonpayment of child support. (Id.,
PageID.95-96.) The court asked if there was any contest about
whether the warrant was outstanding. (Id.,
PageID.129.) Defense counsel responded that there was not.
(Id.) Defendant testified that he told the officers
that he might have a child support warrant but was not sure
because there were also papers stating his child support
obligation had ended now that his daughter was 23 years old.
(Id., PageID.148.) The court denied the Motion to
Suppress, indicating that either the outstanding warrant or
the traffic violation would constitute sufficient probable
cause to stop Defendant's vehicle. (ECF No. 22,
proceeded to a jury trial, was convicted, and was sentenced.
(ECF Nos. 33, 40.) He appealed. (ECF No. 41.) Defendant's
arguments on appeal challenged, inter alia, his
arrest and the search of his car under the Fourth Amendment
and the court's decision not to apply a two-level
decrease in his criminal-offense level for acceptance of
responsibility. (Brief of Appellant at 48-54, United
States v. Fonville, No. 14-2457 (6th Cir. 2016)).
Defendant also filed with the Sixth Circuit a motion to
remand the case in order to enlarge the record to include a
Friend of the Court letter indicating that his child-support
case was closed at the time of his arrest. The motion to
remand the case was denied (ECF No. 51), and Defendant filed
a motion in this court for an indicative ruling while the
appeal was pending. (ECF. No. 52.) The court provided an
indicative ruling that Defendant's ineffective assistance
of counsel claim was without merit and that that the court
would decline to enlarge the record to include the Friend of
the Court letter. (ECF No. 56.) The Sixth Circuit affirmed
Defendant's conviction and sentence. (ECF No. 57.)
§ 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)).
motion is grounded 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. This requires that Defendant “show that
there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different.” Id. at 695 The
government raises procedural default as a defense to
Defendant's other claims. When a defendant fails to raise
a claim on direct appeal, it is procedurally defaulted.
See Bousley v. United States, 523 U.S. 614, 622
(1998). Such a claim “may only be raised on habeas
‘if the defendant can first demonstrate either
“cause” and actual “prejudice, ” or
that he is “actually innocent.”'”
Vanwinkle v. United States, 645 F.3d 365, 369 (6th
Cir. 2011) (quoting Bousley, 523 U.S. at 622).
Defendant cites ineffective assistance of counsel as an
explanation for his failure to raise his other claims on
direct appeal. For attorney error to constitute cause for
procedural default, it must rise to the level of
constitutionally ineffective assistance of counsel. See
Barrow v. United States, 8 Fed.Appx. 286, 288 (6th Cir.
2001) (citing Rust v. Zent, 17 F.3d 155, 161 (6th
lists four grounds for his § 2255 motion: ineffective
assistance of counsel, violation of Due Process, violation of
the Confrontation Clause, and unlawful search and seizure.
(ECF No. 62, PageID.784-88.) These claims largely stem from
Defendant's “Statement of Facts, ” which
presents a novel account of the facts underlying the case.
(Id., PageID.797-99.) There, Defendant states that
he hired a plumber named “Wizz” to work on his
property. He explains how Wizz came to develop a grudge
against him because of his former relationship with
Wizz's wife, Sharon. (Id.) Defendant claims that
Wizz went on to act as confidential informant for the
government and planted the crack cocaine found in the vehicle
that led to Defendant's arrest. (Id.)
version of the facts, the government points out, directly
contradicts both the record and Defendant's argument on
appeal. (ECF No. 67, PageID.844.) At sentencing, Defendant
testified as follows: “I admitted to the Government
myself even before I was indicted . . . I didn't lie. I
told the truth . . . I admitted to everything. I admitted to
the drugs. I admitted to where I was going with the drugs. I
told them who I was even going to see with the drugs. I
admitted to everything.” (ECF No. 50, PageID.696-97.)
On appeal, Defendant argued that the court should have
granted him a two-level decrease in his criminal offense
level based upon his acceptance of responsibility, citing as
relevant facts that Defendant admitted the crime to the
police officers at the time of his arrest; admitted the crime
at the evidentiary hearing under oath; was debriefed by the
government prior to trial; and attempted to enter a
conditional plea. (Brief of Appellant at 48-54, United
States v. Fonville, No. 14-2457 (6th Cir. 2016)). With
this background, the court will consider each of
Defendant's arguments in turn.