Lewis v. United States of America

Filing 8

OPINION ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MARCUS LAVELL LEWIS,
Movant,
File No. 1:12-CV-26
v.
HON. ROBERT HOLMES BELL
UNITED STATES OF AMERICA,
Respondent.
/
OPINION
I.
This matter is before the Court on Movant Marcus Lavell Lewis’s motion pursuant
to 28 U.S.C. § 2255, to vacate, set aside, or correct his sentence. (Dkt No. 1, Mot. Vacate.)
The grand jury indicted Movant on two counts: (1) possession with intent to distribute five
grams or more of cocaine base; and (2) possession with intent to distribute heroin, in
violation of 21 U.S.C. § 841(a). (1:09-CR-163, Dkt. No. 1, Indictment.) Defendant pled
guilty to both counts of the Indictment. (1:09-CR-163, Dkt. No. 19, J. 1.) On October 27,
2009, defendant was sentenced to 150 months of incarceration. Id. at 2. Movant appealed and
his conviction was affirmed on October 13, 2010. (1:09-CR-163, Dkt. No. 26, 6th Cir.
Order). Movant filed this § 2255 motion on January 9, 2012. (Mot. Vacate.) For the reasons
that follow, Movant’s motion is denied.
II.
A prisoner who moves to vacate his sentence under § 2255 must show that the
sentence was imposed in violation of the Constitution or laws of the United States, that the

court was without jurisdiction to impose such sentence, that the sentence was in excess of the
maximum authorized by law, or that it is otherwise subject to collateral attack. 28 U.S.C.
§ 2255. To prevail on a § 2255 motion “a petitioner must demonstrate the existence of an
error of constitutional magnitude which had a substantial and injurious effect or influence
on the guilty plea or the jury’s verdict.” Humphress v. United States, 398 F.3d 855, 858 (6th
Cir. 2005) (quoting Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003)). A petitioner
can prevail on a § 2255 motion alleging non-constitutional error only by establishing a
“fundamental defect which inherently results in a complete miscarriage of justice, or, an error
so egregious that it amounts to a violation of due process.” Watson v. United States, 165 F.3d
486, 488 (6th Cir. 1999) (quoting United States v. Ferguson, 918 F.2d 627, 630 (6th Cir.
1990) (internal quotations omitted)).
As a general rule, claims not raised on direct appeal are procedurally defaulted and
may not be raised on collateral review unless the petitioner shows either 1) “cause” and
“actual prejudice”; or “actual innocence.” Massaro v. United States, 538 U.S. 500, 504
(2003); Bousley v. United States, 523 U.S. 614, 621-22 (1998); United States v. Frady, 456
U.S. 152, 167-68 (1982). To show cause, the petitioner must point to “some objective factor
external to the defense” that prohibited him from raising his claims on direct appeal. See
Murray v. Carrier, 477 U.S. 478, 488. Claims decided on direct appeal may not be relitigated
“absent highly exceptional circumstances, such as an intervening change in the law.” Jones
v. United States, 178 F.3d 790, 796 (6th Cir. 1999) (citing Oliver v. United States, 90 F.3d

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177, 180 (6th Cir. 1996)); DuPont v. United States, 76 F.3d 108, 110 (6th Cir. 1996). An
ineffective assistance of counsel claim is not subject to the procedural default rule. Massaro,
538 U.S. at 504. An ineffective assistance of counsel claim may be raised in a collateral
proceeding under § 2255, whether or not the petitioner could have raised the claim on direct
appeal. Id.
In reviewing a § 2255 motion where factual disputes arise, “the habeas court must
hold an evidentiary hearing to determine the truth of the petitioner’s claims.” Valentine v.
United States, 488 F.3d 325, 333 (6th Cir. 2007) (quoting Turner v. United States, 183 F.3d
474, 477 (6th Cir. 1999)). The Court must grant a hearing to determine the issues and make
findings of fact and conclusions of law on a § 2255 motion “[u]nless the motion and the files
and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C.
§ 2255(b). No evidentiary hearing is required if the allegations “cannot be accepted as true
because they are contradicted by the record, inherently incredible, or conclusions rather than
statements of fact.” Valentine, 488 F.3d at 333 (quoting Arredondo v. United States, 178 F.3d
778, 782 (6th Cir. 1999)). “If it plainly appears from the motion, any attached exhibits, and
the record of prior proceedings that the moving party is not entitled to relief, the judge must
dismiss the motion.” Rules Governing § 2255 Cases, Rule 4(b).
III.
Movant’s claims are reasonably categorized as objections premised on the following
grounds: (1) the formation, execution, and breach of Movant’s plea agreement; (2) the

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ineffective assistance of counsel; (3) the voluntariness of his guilty plea; (4) the validity of
the charges brought against him and the subsequent calculation of his sentence; and (5) the
absence of adequate discovery. All these claims are subject to dismissal because they are
procedurally defaulted, and/or they lack merit.
1. Plea Agreement
The majority of Movant’s claims focus on a supposed plea agreement. Movant’s
claims premised on the existence of the plea agreement lack merit because there was no such
agreement. (1:09-CR-163, Dkt. No. 24, Sent. Tr. 15.) Movant claims that Counsel should not
have advised him to accept the plea agreement and that Counsel was ineffective for failing
to uphold the plea agreement or, in alternative, for failing to object to its breach. (Mem. in
Supp. of Mot. Vacate 2, 4, 6.) Movant further alleges that the U.S. Government accepted the
plea agreement and later breached the agreement when the government increased the drug
amounts charged. Id. at 6. Movant concludes that he would not have pled guilty if he knew
the agreement would be breached and his guilty plea was involuntary as a result. Id. at 4.
There was no plea agreement despite Movant’s affidavits to the contrary. (Dkt. No.
2, Movant Aff.; Dkt. No. 7, Resp. 5; 1:09-CR-163, Sent. Tr. 15.) Movant voluntarily pled
guilty to all counts of the Indictment. (1:09-CR-163, Sent. Tr. 15.) The government made no
promises in return for his decision to plead guilty. Id. Any allegations of ineffective
assistance of counsel related to the plea agreement or the government’s breach of it lack
merit because there was no plea agreement. Movant’s claim that his plea was involuntary

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and several other claims rest on theories assuming the existence of a plea agreement. This
assumption will not be credited in the analysis of Movant’s arguments.
2. Ineffective Assistance of Counsel
Movant claims that counsel was ineffective for advising him to plea guilty, poorly
informing him of the ramifications of this decision, and failing to challenge relevant conduct
in sentencing guideline computations. Movant’s ineffective assistance of counsel claim lacks
merit. An ineffective assistance of counsel claim may be raised whether or not the petitioner
could have raised the claim on direct appeal. Massaro, 538 U.S. at 504. Claims of ineffective
assistance are analyzed under the two-prong standard enunciated in Strickland v. Washington,
466 U.S. 668 (1984). First, defendant must show that counsel’s performance fell below an
objective standard of reasonableness. This requires a showing that counsel made errors so
serious that he was not functioning as the “counsel” guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that there is a reasonable probability that, but
for the counsel’s deficiency, the outcome of the proceedings would have been different. This
requires a showing that counsel’s errors were so serious as to deprive the defendant of a fair
trial. Unless defendant makes both showings, it cannot be said that the “conviction resulted
from a breakdown in the adversary process that renders the result unreliable.” Strickland, 466
U.S. at 694.
Movant fails the first prong of the Strickland test. Counsel’s assistance did not fall
below an objective standard of reasonableness. From Movant’s own representations on the

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transcript, it appears that Counsel appropriately advised Movant to plea guilty, cautioned
Movant of the ramifications of this decision, and properly challenged relevant conduct in
sentencing guideline computations. Movant and Counsel were aware that the government
was ready to prove that the defendant had distributed well in excess of 50 grams of cocaine
base. (1:09-CR-163, Sent. Tr. 15.) The government was prepared to file a superseding
indictment with the increased amounts, (1:09-CR-163, Dkt. No. 23, Plea Tr. 5.), that would
have subjected movant to a mandatory life sentence. Pleading to the lesser offense was a
sound strategy and Movant was able to avoid exposure to a greater sentence with his plea.
(1:09-CR-163, Sent. Tr. 15.) Movant met with Counsel six times and discussed the
Presentencing Report. Id. at 5. Movant admits to meeting with Counsel to discuss sentencing
issues and expressed satisfaction with Counsel’s representation. Id. at 3. Movant’s claim that
he did not fully understand the ramifications of his plea and the calculation of his sentence
are therefore without merit. Finally, on appeal, Counsel’s failure to prevail on Movant’s
argument to reduce his sentence because of relevant conduct objections, (1:09-CR-163, 6th
Cir. Order), is not sufficient to prove ineffective assistance of counsel. No precedent holds
that the failure to prevail is proof of ineffective assistance.
The counsel provided to Movant meets objective standards of reasonableness.
Movant’s ineffective counsel claim must necessarily fail. Movant’s claim that the outcome
would have been different if effective counsel were provided, (Mem. in Supp. of Mot. Vacate
6), is without merit as a result.

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3. Involuntariness
Claims not raised on appeal are procedurally defaulted absent a showing of cause and
prejudice or a showing of actual innocense. Massaro, 538 U.S. at 504. Movant only
challenged judicially-found facts and the duration of his sentence on appeal. (1:09-CR-163,
6th Cir. Order 1.) Movant’s claim that his guilty plea was involuntary is procedurally
defaulted as a result. Movant must point to "some objective factor external to the defense"
that prohibited him from raising his claims on direct appeal to show cause. Murray, 477 U.S.
at 488. Movant fails to show cause because no evidence of external factors is provided. If a
prisoner fails to establish cause, it is unnecessary to determine if he was prejudiced by the
alleged violation. Bousley, 523 U.S. 614, 620 (1998).
However, even if adequate cause and prejudice were asserted, Movant’s claim is
subject to dismissal because it is inherently incredible. Movant asserts that his plea was
involuntary because his counsel did not appropriately advise him that the government was
free to breach the plea agreement (Mem. in Supp. of Mot. Vacate 4.) Movant’s primary
theory for failing to raise the claim of involuntariness previously is without merit because a
plea agreement never existed. The record shows that Movant agrees that he had ample time
to meet with Counsel, have his questions answered, and receive advice from Counsel
regarding his criminal charges. (1:09-CR-163, Plea Tr. 3.) Movant was generally satisfied
with Counsel’s representation. (1:09-CR-163, Sent. Tr. 3). Movant does not directly assert
that Counsel was ineffective for failing to raise involuntariness of plea on appeal. This claim

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would fail even if Movant made the assertion. Counsel is not ineffective for failing to raise
issues that have no merit. Mapes v. Coyle, 171 F.3d 408, 427 (6th Cir. 1999). Movant’s claim
that his guilty plea was involuntary must fail.
4. Criminal Charges and Sentence Calculation
Movant makes several contentions with regards to the charges brought against him
and the duration of his sentence. Movant alleges that (1) charges were brought against him
without jurisdiction; (2) the heroin charge (Count II) was only a misdemeanor (Movant Aff.
3); (3) the mandatory 100-to-1 rule that was imposed upon him is unconstitutional, (Mem.
in Supp. of Mot. Vacate 5); (4) the sentence for Count II was miscalculated, (Movant Aff.
3); and (5) the initial drug amounts to which he pled guilty were increased in violation of his
constitutional rights (Mem. in Supp. of Mot. Vacate 6.)
Although Movant did not challenge subject-matter jurisdiction on appeal, this claim
is not procedurally defaulted because claims challenging subject-matter jurisdiction can never
be waived. United States v. Cotton, 535 U.S. 625, 630 (2002). Movant’s jurisdictional claim,
however, lacks merit. The subject-matter jurisdiction claim is inherently incredible because
this Court clearly had jurisdiction to decide Movant’s guilty pleas. Both counts of Movant’s
indictment alleged violations of title 21, section 841(a) of the United States Code. “The
district courts of the United States shall have original jurisdiction, exclusive of the courts of
the States, of all offenses against the laws of the United States.” 18 U.S.C. § 3231. Movant’s
indictment alleged violations of the laws of the United States and this Court had jurisdiction

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as a result.
Claims (2) and (3) were not raised on direct appeal and are procedurally defaulted.
Movant must show cause and prejudice to overcome procedural default. Movant has not
shown cause, which would require Movant to point to “some objective factor external to the
defense” that prohibited him from raising his claims on direct appeal. Murray, 477 U.S. at
488. In addition to the failure to show cause, claims (2) and (3) also lack merit
In Count II Movant was charged with possession of 3.22 grams of heroin with intent
to distribute, in violation of 18 U.S.C. § 841(a). This was indisputably a felony charge. Title
21, section 841(b) of the United States Code describes the penalties for offenses of section
841(a). Section 841(b)(1)(C), which provides a maximum sentence of 20 years for possession
with intent to distribute of any quantity of heroin. Count II is clearly a felony.
Movant’s assertion that the 100-to-1 rule was mandatory and therefore
unconstitutional misconstrues case law and contradicts the record. The “100-to-1 rule” is a
term commonly used to describe the Sentencing Guidelines’s recommendation that a
possessor of 1 gram of cocaine base be given the same sentence as a possessor of 100 grams
of the refined form, cocaine powder. Movant’s contention that this rule is unconstitutional
under United States v. Booker, 543 U.S. 220 (2005), because the rule is mandatory is simply
untrue. Booker does not declare the 100-to-1 rule unconstitutional, rather, it gives the court
the power to exercise discretion when applying the Sentencing Guidelines. 543 U.S. at 278.
Movant and Counsel were aware that the court was not mandated to apply the 100-to-1 rule.

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(1:09-CR-163, Def. Sent. Mem. 1 (requesting that this Court apply Booker to give Movant
a more lenient sentence)). Any claim that the rule was mandatory is contradicted by Movant’s
and Counsel’s knowledge (as shown by the record) that the court possessed discretionary
power in deciding Movant’s sentence. Id. Movant’s theory of unconstitutionality cannot
prevail. The Fair Sentencing Act of 2010 reduced the 100-to-1 ratio to 18-to-1 and is
applicable retroactively. United States v. Blewett, No. 12–5582, 2013 WL 2121945, at *1,
7 (6th Cir. 2013). This court adjusted Movant’s sentence to 132 months in accordance with
recent congressional changes. (1:09-CR-163, Dkt. No. 42.) No further adjustment of
Movant’s sentence is required.
Movant’s contention that the sentence for Count II was miscalculated will not be
heard by this Court. Movant challenged the duration of his sentence on appeal and the Sixth
Circuit affirmed the duration of Movant’s sentence, noting that his sentence was in fact
below suggested sentencing guidelines. (1:09-CR-163, 6th Cir. Order 3.) This Court will
only review a previously litigated issue under highly exceptional circumstances. Jones, 178
F.3d at 796. The pleadings present no exceptional circumstances.
Even if this Court were to reconsider the issue, Movant’s sentence was appropriately
calculated. Movant’s base level was computed by converting both drugs (500 grams of
cocaine base and 40 grams of herion) to marijuana. U.S.S.G. § 2D1.1. Converting both
produced a base level of 36, which was reduced to level 34 pursuant to Application Note
10(D) because the offense involved cocaine base. Id. This base level was then reduced three

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levels for Movant’s acceptance of responsibility. U.S.S.G. § 3E1.1(a)-(b). With four criminal
history points, the recommended sentence was 151-188 months, which is greater than
Movant’s actual sentence of 150 months.
Finally, Movant’s fifth claim, that the government violated his constitutional rights
when it increased the drug amounts charged, is not valid. Movant never entered a plea
agreement limiting prosecution to a specified amount and, as affirmed by the Sixth Circuit,
judicially-found facts did not violate Movant’s right to a trial by jury. Having been found
with 15.13 grams of cocaine base and 3.22 grams of heroine in his possession,
(Presentencing Rep. 5), Movant pled guilty to possession with intent to distribute 5 grams
or more of cocaine base (Count I) and possession with intent to distribute heroin (Count II).
(1:09-CR-163, Dkt. No. 17, Def. Sent. Mem. 1.) This plea was not part of a plea agreement,
rather a strategic move to mitigate the severity of his sentence. (1:09-CR-163, Sent. Tr. 15.)
The judicial findings of fact that Movant was responsible for the distribution of at least 500
grams of cocaine base and 40 grams of heroin were affirmed by the Sixth Circuit. (1:09-CR163, 6th Cir. Order). No exceptional circumstances exist to review the Sixth Circuit’s
affirmation of the judicially-found facts. Consequently, use of the judicially-found drug
amounts greater than the amounts found in Movant’s immediate possession did not violate
Movant’s constitutional rights.
5. Adequate discovery
Movant’s last category of claims moves the Court to provide access to discovery and

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information from the government on perceived constitutional violations in connection with
his plea and sentencing, as well as access to a polygraph test and a court order requiring
affidavits from certain prosecutors. (Movant Aff., Appendix A, B, C, & D.) Motions for
discovery attached to a § 2255 motion may be authorized for good cause. Rules Governing
§ 2255 Cases, Rule 6(a). Movant has failed to show good cause to grant discovery. All
Movant’s allegations are without merit and primarily derived from a non-existent plea
agreement. Movant provides no viable claim for which he seeks additional information,
rather, he would like to use discovery as a fishing expedition. This Court will not allow such
a request.
Movant also alleges that his constitutional rights were violated because discovery was
provided to his counsel and not directly to him. (Mem. in Supp. of Mot. Vacate 6.) The right
to discovery is statutory. Fed. R. Crim. P. 16. The government provided Movant’s counsel
with discovery, fulfilling their obligation to Movant. Counsel was effective and discussed
relevant matters with Movant. (1:09-CR-163, Sent. Tr. 5.) Any claim that discovery was
inadequate because it was provided to Movant’s agent rather than directly to Movant is
untenable. Movant was made aware of aspects of the trial process through Counsel and
Movant was satisfied with Counsel’s representation. (1:09-CR-163, Sent. Tr. 3.)
6. Certificate of Appealability
Pursuant to 28 U.S.C. § 2253(c), the Court must also assess whether to issue a
certificate of appealability to Movant. To warrant a grant of a certificate of appealability,

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Movant “must demonstrate that reasonable jurists would find the district court’s assessment
of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484
(2000). The Sixth Circuit Court of Appeals has disapproved of the 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. Upon review of each claim, the Court does not believe
that reasonable jurists would find its assessment of Movant’s claims to be debatable or
wrong. Accordingly, a certificate of appealability will also be denied as to each claim.
An order and judgment consistent with this opinion shall be entered.

Dated: June 18, 2013

/s/ Robert Holmes Bell
ROBERT HOLMES BELL
UNITED STATES DISTRICT JUDGE

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