United States District Court, S.D. Ohio, Eastern Division
DAQUAN M. TYSON, Petitioner,
UNITED STATES OF AMERICA, Respondent. No. 2:16-cv-550
MICHAEL H. WATSON
REPORT AND RECOMMENDATION
TERENCE P. KEMP, UNITED STATES MAGISTRATE JUDGE
a federal prisoner, has filed a motion to vacate his sentence
pursuant to 28 U.S.C. §2255. The case is before the
Court on the motion (Doc. 54), the United States'
response (Doc. 61), and Petitioner's reply (Doc. 62).
Petitioner has also moved to strike the Court's order of
July 14, 2016, granting Respondent an extension of time. That
motion does not contain any grounds for striking the order
and the motion (Doc. 58) is therefore DENIED. For the
following reasons, it will be recommended that the motion to
vacate be DENIED.
Facts and Procedural History
December 5, 2013, the grand jury indicted Petitioner on eight
counts of criminal activity ranging from conspiracy to
possess with intent to distribute both cocaine and marijuana
to various firearms charges. Petitioner was arraigned on
December 13, 2013 and pleaded not guilty. Subsequently,
Petitioner signed a plea agreement which obligated him to
plead guilty to Counts 1 and 4 of the indictment. On August
13, 2014, Judge Watson sentenced Petitioner to a total of 160
months of imprisonment. That sentence is reflected in the
judgment and commitment order filed on August 19, 2014 (Doc.
appealed. On appeal, he argued that the Court erred by not
determining whether the relevant conduct used to calculate
his base offense level actually constituted a crime. The
Court of Appeals reviewed the claim for plain error since it
had not been raised before, and found it unavailing.
See Doc. 50 (Court of Appeals opinion in Case No.
14-3859, filed July 22, 2015).
filed this motion to vacate on June 17, 2016. He raises the
following grounds for relief, as summarized by the Court:
Ground One: Both trial and appellate counsel were ineffective
for failing to challenge Count One of the indictment as
duplicitous, resulting in Petitioner's having been
convicted and sentenced on duplicitous counts and to a
sentence which exceeds the statutory maximum.
Ground Two: Trial counsel was ineffective for failing to
challenge the indictment because no other conspirator was
named in the conspiracy count and, therefore, Petitioner was
never charged with a criminal offense.
Ground Three: Trial counsel was ineffective for failing to
object to the fact that the quantity of drugs attributable to
Petitioner was not satisfactorily established either by jury
verdict or by stipulation.
Ground Four: Trial counsel failed to object to the sentence
because there were no facts established which would have
permitted the Court to sentence Petitioner above the
Ground Five: Trial counsel was ineffective for failing to
raise the fact that the person with whom Petitioner allegedly
conspired was a government agent and not a true
Ground Six: Trial counsel was ineffective for failing to
object to the Court's finding that a kilogram-sized
cocaine wrapper in the trash outside Petitioner's
apartment meant that Petitioner had actually possessed a
kilogram of cocaine.
Ground Seven: Trial counsel was ineffective for allowing
Petitioner to enter into a plea agreement which waived the
procedures set forth in Fed.R.Crim.P. 32.2(b)(4) and which
forfeited a vehicle and money which did not belong to
Ground Eight: Trial counsel was ineffective for failing to
challenge the validity of the “no-knock” entries
which accompanied execution of the search warrants issued in
this case, for failing to develop grounds for pre-trial
motions, and for ...