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McCormick v. United States

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

September 5, 2017

SIRJUSTIN MCCORMICK, Petitioner
v.
UNITED STATES OF AMERICA, Respondent

          ORDER

          SOLOMON OLIVER, JR., UNITED STATES DISTRICT COURT JUDGE

         Currently pending before the court in the above-captioned case is Petitioner Sirjustin McCormick's (“Petitioner” or “McCormick”) Motion to Vacate Sentence under 28 U.S.C. § 2255 (“Petition”). (ECF No. 1 in Case No. 5:16 CV 494; ECF No. 28 in Case No. 5:14 CR 249.)[1] For the following reasons, the court grants in part and denies in part McCormick's Petition.

         I. BACKGROUND

         On December 23, 2014, without a plea agreement, McCormick entered a guilty plea to an Indictment for illegal possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1). (United States's Opp'n “Opp'n”, ECF No. 30, at 3.) He had previously been convicted of Felonious Assault in January of 2009, in Summit County Common Pleas Court. (Id. at 2-3.) He was sentenced to 83 months' imprisonment and did not file a Notice of Appeal. (Id.)

         On March 2, 2016, McCormick filed the instant Motion to Vacate, raising three grounds to challenge his sentence: (1) ineffective assistance of counsel; (2) a substantive change of law in regard to the sentencing guidelines; and (3) a due process violation caused by relying on the sentencing guidelines. (Mot., ECF No. 28.) On April 19, 2016, the United States filed a Response (ECF No. 30). On May 16, 2016, after being granted an extension of time, McCormick filed a Traverse (ECF No. 33) in support of his Motion.

         On March 14, 2017, McCormick filed a Motion to Amend Petition (ECF No. 34), acknowledging that the recent Supreme Court case, Beckles v. United States, __ U.S. __, 137 S.Ct. 886 (2017), negatively impacted one of his claims, and requesting that this court delay ruling on the Petition until he could file an amendment. On April 19, 2017, the court denied McCormick's Motion to Amend without prejudice, allowing him to reassert the Motion after conferring with court-appointed counsel. On August 2, 2017, McCormick's court-appointed counsel filed a Notice to Pursue no Further Filings (ECF No. 39). Thus, the court will now address McCormick's Petition.

         II. LEGAL STANDARD

         Section 2255, Title 28 of the United States Code, allows a district court to vacate, set aside, or correct a federal sentence that was imposed in violation of the Constitution or laws of the United States or was imposed by a court without jurisdiction, exceeds the maximum sentence authorized by law, or is otherwise subject to collateral attack. 28 U.S.C. § 2255. Collateral relief, however, is limited, and “[o]nce [a] defendant's chance to appeal has been waived or exhausted, . . . we are entitled to presume he stands fairly and finally convicted” and “a collateral challenge may not do service for an appeal.” United States v. Frady, 456 U.S. 152, 164-65 (1982). Generally, to prevail on a § 2255 motion alleging a constitutional error, the petitioner must show an error of constitutional magnitude, which had a substantial and injurious effect or influence on the proceedings. Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993); see also Murr v. United States, 200 F.3d 895, 906 (6th Cir. 2000) (confirming that Brecht standard applies in § 2255 actions, as well as § 2254 actions). On collateral review, it is the movant's burden to establish his right to relief. See McQueen v. United States, 58 F. App'x 73, 76 (6th Cir. 2003).

         III. LAW AND ANALYSIS

         In his Petition, McCormick raises three grounds for challenging his sentence: (1) ineffective assistance of counsel; (2) a substantive change of law; and (3) a due process violation. (Mot., ECF No. 28.) Both claims two and three are premised upon the Supreme Court's finding in Johnson v. United States, 135 S.Ct. 2551, 2563 (2015), in which the Court invalidated the residual clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e), as unconstitutionally vague. McCormick argues that his sentence enhancement under the U.S. Sentencing Guidelines (“USSG”) 2k2.1(a) should be similarly struck down because Johnson established a new substantive rule which should be applied retroactively and because the vagueness of the statute violates his constitutional right to due process. (Id. at 5, 7.) The court addresses these claims first.

         In Beckles v. United States, __ U.S. __, 137 S.Ct. 886 (2017), the Supreme Court concluded that the U.S. Sentencing Guidelines are not subject to a vagueness challenge under the Due Process Clause. Id. at 892. Specifically, the Court held that because the USSG does not fix the range of permissible sentences like the ACCA, but “merely guide[s] the exercise of a court's discretion, ” the USSG is not impermissibly vague. Id. at 892. The Court went on to explain that “[i]f a system of unfettered discretion is not unconstitutionally vague, then it is difficult to see how the present system of guided discretion could be.” Id. at 894.

         In rejecting the challenge to the USSG based on Johnson, the Supreme Court implicitly established that the holding of Johnson was not a substantive or watershed rule which must be applied retroactively to USSG sentences. Thus, McCormick's second claim must also be denied.

         In light of Beckles, the court denies McCormick's second and third claims.

         In regard to McCormick's first claim for ineffective assistance of counsel, the United States concedes that an evidentiary hearing is necessary to determine if McCormick's counsel ignored McCormick's request to file a direct appeal. (Opp'n, ECF No. 30, at 8.) See Campbell v. United States, 686 F.3d 353, 358 (6th Cir. 2012) (“[F]ailure to perfect a direct appeal, in derogation of a defendant's actual request, is a per se violation of the Sixth Amendment . . . . without regard to the probability of success on appeal.”) (quoting Ludwig v. United States, 162 F.3d 456, 459 (6th Cir. 1998)). However, the United States contests the second element of McCormick's ineffective assistance of counsel ...


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