United States v. Connor

          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)

          GEORGE CARAM STEEH UNITED STATES DISTRICT JUDGE.

         Now 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.

         I. Background

         On 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.

         Despite 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.

         On 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.

         II. Standard of Review

         To 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).

         III. Analysis

         1. Sessions v. Dimaya, 138 S.Ct. 1204 (2018)

         Petitioner 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 relief sought.

         2. Brandishing a Firearm

         Petitioner 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.

         3. Ineffective ...