United States District Court, E.D. Michigan, Southern Division
ORDER DENYING PETITIONER'S MOTION TO VACATE, SET
ASIDE, OR CORRECT SENTENCE (DOC. 96) AND DENYING
PETITIONER'S MOTION FOR APPOINTMENT OF COUNSEL (DOC. 97)
AND DENYING PETITIONER'S MOTION FOR
LIMITED DISCOVERY (DOC. 98)
CARAM STEEH UNITED STATES DISTRICT JUDGE.
before the court is Defendant-Petitioner Clifford
Conner's pro se motion to vacate, set aside, or correct
sentence pursuant to 28 U.S.C. § 2255. Also pending are
Petitioner's motions for the appointment of counsel, and
for limited discovery. The government has responded to
Petitioner's §2255 motion, and Petitioner has filed
a Reply which this court has duly considered. For the reasons
set forth below, Petitioner's motions will be denied.
December 13, 2016, Petitioner pleaded guilty to aiding and
abetting a carjacking in violation of 18 U.S.C. §§
2 and 2119(1), and aiding and abetting the use and carry of a
firearm during and in relation to a crime of violence in
violation of 18 U.S.C. §§ 2 and 924 (c)(1)(A)(ii).
The parties agreed to a sentencing Guidelines range of 46 to
57 months' imprisonment on the aiding and abetting
carjacking count, and 84 months' imprisonment on the
§ 924(c) count for a total Guidelines range of 130 to
141 months. On April 13, 2017, the court sentenced Petitioner
within the terms of the Rule 11 plea agreement to 46
months' imprisonment on the aiding and abetting
carjacking count, and a consecutive 84 months'
imprisonment on the § 924(c) count, for a total
imprisonment of 130 months' imprisonment.
receiving a sentence within the terms of the Rule 11 plea
agreement, and despite an explicit waiver of the right to
appeal if sentenced within the terms of the Rule 11 plea
agreement, Petitioner filed a notice of appeal. On appeal,
Petitioner argued that his guilty plea was invalid because
the court considered an impermissible factor at sentencing,
namely, a murder for which he was acquitted after a jury
trial. The Sixth Circuit affirmed and determined that the
record did not reflect that this court considered this fact
in formulating his sentence, and in any event, Petitioner
received the benefit of the bargain because he was sentenced
within the agreed-upon Guidelines range.
February 11, 2019, Petitioner timely filed his 28 U.S.C.
§ 2255 motion. In his motion to vacate, set aside, or
correct sentence now before the court, Petitioner argues (1)
his conviction under 18 U.S.C. § 924(c) is invalid under
Sessions v. Dimaya, 138 S.Ct. 1204 (2018), (2) his
aiding and abetting carjacking conviction is invalid because
the government allegedly failed to establish a necessary
element of the offense that he brandished his weapon, and (3)
his counsel was ineffective for failing to advise him that
the government would reference his acquittal on state murder
charges at sentencing, and for failing to mention Dean v.
United States, 137 S.Ct. 1170 (2017) by name during his
oral motion for a downward departure at sentencing.
Petitioner's arguments lack merit.
Standard of Review
obtain relief under 28 U.S.C. § 2255, a petitioner must
demonstrate A(1) an error of constitutional magnitude; (2) a
sentence imposed outside the statutory limits; or (3) an
error of fact or law ... so fundamental as to render the
entire proceeding invalid.” Short v. United
States, 471 F.3d 686, 691 (6th Cir. 2006) (quoting
Mallett v. United States, 334 F.3d 491, 496B97 (6th
Cir. 2003)). He “must clear a significantly higher
hurdle than would exist on direct appeal” and establish
a 'fundamental defect in the proceedings which
necessarily results in a complete miscarriage of justice or
an egregious error violative of due process.” Fair
v. United States, 157 F.3d 427, 430 (6th Cir. 1998)
(internal quotations and citations omitted).
Sessions v. Dimaya, 138 S.Ct. 1204 (2018)
argues that Sessions v. Dimaya, 138 S.Ct. 1204
(2018), which held that the residual clause definition of
crime of violence in 18 U.S.C. § 16(b), which
constitutes an “aggravated felony” in the
Immigration and Nationality Act, was unconstitutionally
vague, necessarily invalidates the residual clause language
in 18 U.S.C. § 924(c)(3)(B). But Petitioner's §
924(c) conviction was based on the predicate offense of
carjacking which qualifies as a crime of violence under the
use-of-force clause in 18 U.S.C. § 924(c)(3)(A).
United States v. Jackson, 918 F.3d 467, 486 (6th
Cir. 2019). Accordingly, there is no need to consider the
residual clause and Dimaya does not support the
Brandishing a Firearm
also argues that the government failed to establish the
element of brandishing the firearm under 18 U.S.C. §
924(c)(1)(A)(ii). But the element was included in the Third
Superseding Indictment, (R. 62 at PgID 364); in the Rule 11
factual basis which established that Petitioner held the
victims at gunpoint (R. 68 at PgID 382), and was adduced at
the plea hearing where Petitioner admitted he brandished his
gun while his co-defendant fought with one of the victims.
(R. 88 at PgID 553-58). The record belies Petitioner's
argument that the government failed to establish that he
brandished his firearm.