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.

Douglas v. United States

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

August 20, 2019

ADRIAN ANTHONY DOUGLAS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MICHAEL H. WATSON, JUDGE

          ORDER AND REPORT AND RECOMMENDATION

          KIMBERLY A. JOLSON, UNITED STATES MAGISTRATE JUDGE

         Petitioner, a federal prisoner, brings this Motion to Vacate under 28 U.S.C. § 2255. (Doc. 130). This matter is before the court on the instant motion, Respondent's Response in Opposition, Petitioner's Reply, and the exhibits of the parties. For the reasons that follow, the Undersigned RECOMMENDS that this action be DISMISSED. In addition, Petitioner's request for an evidentiary hearing is DENIED.

         I. FACTS AND PROCEDURAL HISTORY

         On June 14, 2017, Petitioner pleaded guilty pursuant to the terms of his negotiated Plea Agreement to conspiracy to distribute over 1000 kilograms of marijuana, in violation of 21 U.S.C. § 846, and conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h). (Docs. 50, 55). On January 19, 2018, the Court imposed a term of 144 months imprisonment, to be followed by five years of supervised release. (Doc. 116).

         On November 26, 2018, Petitioner filed this Motion to Vacate under 28 U.S.C. § 2255. (Doc. 130). He asserts that he was denied the effective assistance of counsel because his attorney failed to advise him that he would be subject to automatic deportation by entry of his guilty plea, and that his guilty plea therefore was not knowing, intelligent or voluntary; that the Court improperly failed to advise him that he faced mandatory deportation, in violation of Rule 11 of the Federal Rules of Criminal Procedure; that the Court erred in imposing a two-level enhancement in Petitioner's recommended sentence under the advisory United States Sentencing Guidelines under the provision of U.S.S.G. § 3B1.1(c) and that he was denied the effective assistance of counsel based on his attorney's failure to object; and that he was denied the effective assistance of counsel because his attorney failed to request that his sentence for revocation of the terms of his supervised release run concurrently to his sentence in this case. It is the position of the Respondent that none of Petitioner's claims provide a basis for relief.

         II. STANDARD

         Pursuant to 28 U.S.C. § 2255(a),

[a] prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

         To obtain relief under 28 U.S.C. § 2255, a prisoner must allege either “(1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law that was so fundamental as to render the entire proceeding invalid.” Short v. United States, 471 F.3d 686, 691 (6th Cir. 2006) (internal quotation marks omitted).

         In addition, “it is well-established that a § 2255 motion ‘is not a substitute for a direct appeal.'” Ray v. United States, 721 F.3d 758, 761 (6th Cir. 2013) (quoting Regalado v. United States, 334 F.3d 520, 528 (6th Cir. 2003) (citing United States v. Frady, 456 U.S. 152, 167-68 (1982))). Accordingly, if a claim could have been raised on direct appeal, but was not, the Court will not consider the claim via a § 2255 motion unless the petitioner shows: (1) cause and actual prejudice to excuse his failure to raise the claim previously; or (2) that he is “actually innocent” of the crime. Ray, 721 F.3d at 761 (citing Bousley v. United States, 523 U.S. 614, 622 (1998)).

         III. DISCUSSION

         As noted, Petitioner has brought multiple claims.

         A. Ineffective ...


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.