Tisdale v. USA

Filing 1

ORDER DISMISSING Civil Case Associated with Case 17-cr-20640-6. Signed by District Judge Stephen J. Murphy, III. (DPar)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
UNITED STATES OF AMERICA,

Case Nos. 2:17-cr-20640-06
2:21-cv-12812

Plaintiff,
v.

HONORABLE STEPHEN J. MURPHY, III

DESHAUN TISDALE,
Defendant.
/
OPINION AND ORDER DENYING
MOTION TO VACATE SENTENCE UNDER 28 U.S.C. § 2255 [663]
A jury found Defendant Deshaun Tisdale guilty of racketeering conspiracy in
violation of 18 U.S.C. § 1962(d), assault with a dangerous weapon in aid of
racketeering in violation of § 1959(a)(3), and use of a firearm during and in relation
to a crime of violence in violation of § 924(c). ECF 503, PgID 3970. The Court
sentenced Defendant to 252 months in prison. Id. at 3971.
Defendant timely moved to vacate his sentence under 28 U.S.C. § 2255. ECF
663. The Government responded to the petition. ECF 668. The Court need not hold a
hearing for the motion. See E.D. Mich. L.R. 7.1(f)(1). For the following reasons, the
Court will deny the motion.
BACKGROUND
Defendant challenged his sentence under 28 U.S.C. § 2255 on three grounds.
First, Defendant claimed that racketeering conspiracy is not a crime of violence that
could support his conviction under 18 U.S.C. § 924(c). ECF 663, PgID 7757–59.

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Second, Defendant argued that a witness’s refusal to testify denied him a meaningful
chance to present a defense. Id. at 7759. And third, Defendant argued that the Court
violated his Fifth Amendment rights based on bias as shown by the Court’s denial of
his pretrial motions. Id.
LEGAL STANDARD
An individual sentenced by a federal court may seek to vacate, set aside, or
correct the sentence under 28 U.S.C. § 2255. The statute provides four grounds for
claiming relief: “(1) that the sentence was imposed in violation of the Constitution or
[federal] laws, (2) that the [C]ourt [lacked] jurisdiction to impose [the] sentence,
(3) that the sentence was in excess of the maximum authorized by law, and (4) that
the sentence is otherwise subject to collateral attack.” Hill v. United States, 368 U.S.
424, 426–27 (1962) (quoting 28 U.S.C. § 2255) (internal quotation marks omitted).
Generally, the motion must allege “(1) an error of constitutional magnitude; (2) a
sentence imposed outside the statutory limits; or (3) an error of fact or law that was
so fundamental as to render the entire proceeding invalid.” Weinberger v. United
States, 268 F.3d 346, 351 (6th Cir. 2001) (citation omitted).
DISCUSSION
The Court will deny each claim in turn. After, the Court will deny a certificate
of appealability and in forma pauperis status on appeal.
I.

Conviction under 18 U.S.C. § 924(c)
Defendant’s racketeering conspiracy conviction under 18 U.S.C. § 924(c) is a

crime of violence. Section 924(c)(1)(A)(i) imposes a mandatory minimum sentence of

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five years’ imprisonment for “any person who, during and in relation to any crime of
violence . . . for which the person may be prosecuted in a court of the United States,
uses or carries a firearm, or who, in furtherance of any such crime, possesses a
firearm.” If the firearm is discharged, as here, the mandatory minimum is ten years’
imprisonment. § 924(c)(1)(A)(iii). A conspiracy to commit violent crimes will “qualif[y]
as a crime of violence only if use of force is an element of the offense, and this excludes
conspiracy charges.” United States v. Woods, 14 F.4th 544, 552 (6th Cir. 2021) (citing
Manners v. United States, 947 F.3d 377, 379 (6th Cir. 2020)).
Here, the jury convicted Defendant on count four, “assault with a dangerous
weapon in aid of racketeering” under 18 U.S.C. § 1959(a)(3),1 and on count five, “using
and carrying a firearm during and in relation to [count four]” under 18 U.S.C.
§ 924(c). ECF 435, PgID 3377–78;2 see also ECF 366, PgID 2212–13 (fourth
superseding indictment detailing counts four and five). Because the VICAR assault
with a dangerous weapon was the predicate offense for the conspiracy charge,
Defendant’s claim fails. Woods, 14 F.4th at 553 (holding that when VICAR assault
with a deadly weapon is the predicate offense for a § 924(c) conviction, the conviction
is “[properly based on [a] crime[] of violence under the § 924(c) elements clause”). To
be sure, “[b]oth the indictment and jury instructions ensured that the jury knew the
predicate offense[] [was] . . . VICAR assault with a deadly weapon, not the conspiracy

The charge is also known as “VICAR with a dangerous weapon.” Woods, 14 F.4th at
552. VICAR is the abbreviation for “Violent Crimes in Aid of Racketeering.”
2 The jury also found that a “firearm was discharged” and “brandished in connection
with the commission of the offense.” Id. at 3379.
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charge.” Id.; see also ECF 366, PgID 2212–13 (fourth superseding indictment); ECF
434, PgID 3368–69 (jury instructions). The Court will therefore deny the first claim.
II.

Meaningful Opportunity to Present Defense Claim
The Court will also deny the second claim. At its core, Defendant alleged that

the homeowner who shot a firearm at him when he was breaking into the
homeowner’s house should not have been allowed to invoke his Fifth Amendment
right against self-incrimination and refuse to testify. ECF 663, PgID 7759; see ECF
544, PgID 5698–5701 (transcript of witness invoking Fifth Amendment). Defendant’s
counsel did not object to the witness invoking the Fifth Amendment. ECF 544, PgID
5700–01.3
In short, the claim fails because Defendant’s right to present a defense must
“bow to accommodate other legitimate interests in the criminal trial process” such as
a witness’s Fifth Amendment privilege against self-incrimination. United States v.
Serrano, 406 F.3d 1208, 1215 (10th Cir. 2005) (collecting cases).
III.

Judicial Bias Claim
The final claim of judicial bias easily fails. Defendant has offered no facts to

show that the Court was biased against him during the trial. ECF 663, PgID 7759.
Defendant must provide evidence that the Court “abandoned his role as an impartial

If the Government were to raise procedural default as a defense to the second and
third claims, the Court would find both claims in procedural default. See Massaro v.
United States, 538 U.S. 500, 504 (2003) (Except for ineffective assistance of counsel
claims, “claims not raised on direct appeal may not be raised on collateral review
unless the [defendant] shows cause and prejudice.”) (citations omitted); see also
McNeill v. Bagley, 10 F.4th 588, 595 (6th Cir. 2021) (“Procedural default is generally
an affirmative defense.”) (citing Trest v. Cain, 522 U.S. 87, 89 (1997)).
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arbiter.” Taylor Acquisitions, L.L.C. v. City of Taylor, 313 F. App’x 826, 838 (6th Cir.
2009) (quotation omitted). “[J]udicial rulings alone almost never constitute a valid
basis for a bias or partiality motion.” Liteky v. United States, 510 U.S. 540, 555 (1994)
(citation omitted). Without facts to support the claim (other than the Court denying
his pretrial motions),4 the Court will deny it and dismiss the motion.
IV.

Certificate of Appealability and Proceeding In Forma Pauperis on Appeal
To appeal the Court’s decision, Defendant must obtain a certificate of

appealability. To obtain a certificate of appealability, Defendant must make “a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
Thus, Defendant must show that reasonable jurists could debate whether the Court
should have resolved the § 2255 motion in a different manner, or that the issues
presented were adequate to deserve encouragement to proceed further. Slack v.
McDaniel, 529 U.S. 473, 483–84 (2000). Jurists of reason would not debate the Court’s
denial of Defendant’s motion. The Court will therefore deny a certificate of
appealability.
The Court will also deny Defendant leave to appeal in forma pauperis because
he cannot take an appeal in good faith. See Fed. R. App. P. 24(a).
ORDER
WHEREFORE, it is hereby ORDERED that the motion to vacate sentence
under 28 U.S.C. § 2255 [663] is DENIED.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.

The Sixth Circuit affirmed the Court’s denial of Defendant’s motion to suppress.
ECF 614, PgID 7356–57.

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IT IS FURTHER ORDERED that leave to proceed in forma pauperis on
appeal is DENIED.
IT IS FURTHER ORDERED that the Clerk of the Court must CLOSE Civil
Case No. 2:21-cv-12812.
SO ORDERED.
s/ Stephen J. Murphy, III
STEPHEN J. MURPHY, III
United States District Judge
Dated: May 10, 2022
I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on May 10, 2022, by electronic and/or ordinary mail.
s/ David P. Parker
Case Manager

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