Hughes v. United States of America

Filing 5

OPINION; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
__________________________

GREGORY HUGHES,
Movant,
v.

Case No. 1:11-CV-1028
(Criminal Case No. 1:05-CR-020-6)

UNITED STATES OF AMERICA,
HON. GORDON J. QUIST
Respondent.
_____________________________/

OPINION
Gregory Hughes has filed a Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, or Correct
Sentence By a Person in Federal Custody. The Government has filed a response. After reviewing
the motion, brief, supporting documents, and the government’s response, the Court concludes that
Hughes is not entitled to relief.
I. PROCEDURAL HISTORY
On December 19, 2005, Hughes pled guilty, pursuant to a plea agreement, to one count of
conspiracy to distribute and possess with the intent to distribute ecstasy (MDMA) in violation of 21
U.S.C. § 846, 841(a)(1) and (b)(1)(C). On March 28, 2006, this Court sentenced Hughes to 144
months imprisonment and three years supervised release. The Court concluded that Hughes was a
career offender under the United States Sentencing Guidelines (U.S.S.G.) § 4B1.1(a), as a result of
a crime which occurred in the State of Illinois. Hughes did not appeal his conviction or sentence.
On September 26, 2011, Hughes filed the instant motion under § 2255. In his § 2255 motion,
Hughes seeks to be resentenced as a result of “newly intervening scientific developments”

demonstrating that the Sentencing Commission’s assessment of the dangers posed by MDMA “was
flawed.” Hughes cites United States v. McCarthy, 09-CR-1136, 2011 U.S. Dist. LEXIS 54930
(S.D.N.Y. May 19, 2011), wherein the judge varied downward from the advisory guideline range
for MDMA-to-marijuana ratio from 500:1 to 200:1. Id. at 1-2. The court in McCarthy analyzed
three items of new evidence: (1) a medical journal report (S.J. Kisch et al, DECREASED CEREBRAL
CORTICAL SEROTONIN TRANSPORTER BINDING

IN

ECSTASY USERS: A POSITRON EMISSION

TOMOGRAPHY /[11C]DASB AND STRUCTURAL BRAIN IMAGING STUDY , 133 Brain 1779 (2010)
(contradicting the science previously available to the Sentencing Commission that concluded
MDMA affects broad areas of the brain) (“Kisch Study”), (2) expert testimony stating the
Commission incorrectly described MDMA as both a stimulant and hallucinogen, and (3) the
McCarthy court made its decision based on data of emergency room visits due to intoxication from
various types of illicit drugs. DRUG ABUSE WARNING NETWORK 2007, NATIONAL ESTIMATES OF
DRUG RELATED EMERGENCY DEPARTMENT VISITS (DAWN) (2010) (finding that cocaine abuse was
responsible for 29.4% of drug or alcohol related emergency room visits in 2007, while MDMA was
responsible for 0.7%). The court stated the Kisch Study was “equivocal,” and the expert testimony
was “largely irrelevant” to the determinative question of the actual danger posed by MDMA.
Hughes does not challenge his guilty plea, rather he argues this Court should use the 200:1 MDMAto-marijuana standard, based on the decision in McCarthy and the new scientific developments, and
grant him a reduced sentence that better serves the objectives of sentencing.
II. HUGHES’ MOTION IS NOT TIMELY
Pursuant to 28 U.S.C. § 2255(f), motions under § 2255 are subject to a one-year statute of
limitations commencing from the latest of various times set forth in § 2255(f)(1)-(4). Hughes asserts
that his motion is timely based upon subsection (f)(4), which states the one-year period of

limitations shall run from “the date on which the facts supporting the claim or claims presented
could have been discovered through the exercise of due diligence.” The new “scientific evidence”
Hughes cites appears in a medical journal article on the pharmacology of MDMA published on May
17, 2010. Hughes filed a motion over a year later, on September 26, 2011. While a petition need
not be filed within a year of the information’s publishing to meet the due diligence standard, the U.S.
Department of Health and Human Services (“HHS”) has published similar data showing the
relatively fewer hospital visits from MDMA intoxication versus cocaine intoxication yearly since
2002, and the research in these reports dates back to as early as 1995. See, e.g., DRUG ABUSE
WARNING NETWORK, 2003: NATIONAL ESTIMATES OF DRUG RELATED EMERGENCY DEPARTMENT
VISITS (DAWN) (2004) (In 2003, MDMA was responsible for an estimated 2,221 emergency room
visits, while cocaine was involved in an estimated 125,921) (“DAWN”). As a result of similar
scientific data from the HHS having existed approximately eight years before the 2010 publication,
and even four years before Hughes’ March 28, 2006, sentencing date, Hughes could have discovered
the information through the exercise of due diligence many years before the September 26, 2011,
filing date.
Hughes, therefore, has not shown the requisite due diligence for raising a claim based on the
new “scientific evidence.”
III. HUGHES IS NOT ENTITLED TO RELIEF
Even if this Court were to find that Hughes has shown the required due diligence, the “newly
discovered scientific evidence” does not entitle him to relief. To succeed under § 2255 Hughes must
allege (1) his new evidence rises to the level of an error of constitutional magnitude, (2) his sentence
was imposed outside the statutory limits, or (3) an error of fact or law which occurred was so
fundamental as to render the entire proceedings invalid. Mallett v. United States, 334 F.3d 491, 496-

97 (6th Cir. 2003); Moss v. United States, 323 F.3d 445, 454 (6th Cir. 2003); Weinberger v. United
States, 268 F.3d 346, 351 (6th Cir. 2001). When the claimed error is a constitutional error, § 2255
affords relief only when the error has a “substantial and injurious effect or influence” on the
proceedings. Humphress v. United States, 398 F.3d 855, 858 (6th Cir. 2005).
A sentencing judge who disagrees with the policy or harshness of the Guidelines’ advisory
conversions may deviate from them without necessarily abusing his or her discretion, but by no
means does it follow that it is an abuse of discretion for a judge to adhere to the equivalency table.
United States v. Kamper, 11-CR-3-001, 2012 U.S. Dist. LEXIS 65070 (E.D. Tenn. May 8, 2012).
The fact that an argument for the exercise of this Court’s discretion may be stronger today than it
was at the time of Hughes’ sentencing does not raise this issue to one of a constitutional magnitude
or render the entire proceedings invalid, and Hughes’ sentence was within the statutory limits.
Hughes has failed to show that he is entitled to a different sentence.
IV. NO CERTIFICATE OF APPEALABILITY
Under 28 U.S.C. § 2253(c)(2), the court must also determine whether a certificate of
appealability should be granted. A certificate should be issued if Hughes has demonstrated a
“substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The Sixth
Circuit has disapproved issuance of blanket denials of a certificate of appealability. Murphy v. Ohio,
263 F.3d 466, 467 (6th Cir. 2001). Rather, the district court must “engage in a reasoned assessment
of each claim” to determine whether a certificate is warranted. Id. at 467. Each issue must be
considered under the standards set forth by the Supreme Court in Slack v. McDaniel, 529 U.S. 473
(2000). Murphy, 263 F.3d at 467. Consequently, this Court has considered Hughes’ claim under
the Slack standard.

Under Slack, 529 U.S. at 484, to warrant a grant of the certificate, “[t]he petitioner must
demonstrate that reasonable jurists would find the district court’s assessment of the constitutional
claims debatable or wrong.” The Court finds that reasonable jurists could not find this Court’s
dismissal of Hughes’ claim was debatable or wrong. Therefore, the Court will deny Hughes’
certificate of appealability.
V. CONCLUSION
For these reasons, Hughes’ § 2255 Motion will be dismissed. In addition, the Court will
deny Hughes a certificate of appealability because he has failed to make a “substantial showing of
a denial of a constitutional right.”
A separate judgment will issue.

Dated: June 1, 2012

/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE