Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Tyson v. United States

United States District Court, S.D. Ohio, Eastern Division

April 6, 2017

DAQUAN M. TYSON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. No. 2:16-cv-550

          JUDGE, MICHAEL H. WATSON

          REPORT AND RECOMMENDATION

          TERENCE P. KEMP, UNITED STATES MAGISTRATE JUDGE

         Petitioner, 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.

         I. Facts and Procedural History

         On 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. 35).

         Petitioner 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).

         Petitioner 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 statutory minimum.
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 co-conspirator.
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 Petitioner.
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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.