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.

Doss v. United States

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

August 28, 2019

PRESTON W. DOSS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OF OPINION AND ORDER [RESOLVING ECF NO. 57]

          BENITA Y. PEARSON UNITED STATES DISTRICT JUDGE.

         Before the Court is pro se Petitioner Preston W. Doss' motion to vacate, set aside, or correct a sentence pursuant to 28 U.S.C. § 2255. ECF No. 57.[1] The Government filed a response. ECF No. 80. Petitioner has not filed a reply and the time for doing so has elapsed. For the reasons set out in this Order, the motion is denied.

         I. Background

         On August 15, 2016, officers responded to a report of gunshots in Cleveland. ECF No. 32 at PageID #: 102. When the officers arrived on the scene, Doss attempted to flee. Id. at PageID #: 102-03. When the officers apprehended Petitioner, they retrieved a handgun that he had thrown while he was running away. Id. at PageID #: 103. They also found a vial of phencyclidine (“PCP”) nearby. Id. Petitioner was subsequently indicted with one count of Felon in Possession of a Firearm and one count of Possession with Intent to Distribute PCP. See ECF Nos. 1, 13.

         In March 2017, Doss filed a notice of intent to plead guilty. ECF No. 22. After consenting to the jurisdiction of the magistrate judge, he subsequently pleaded guilty before Magistrate Judge George J. Limbert. See ECF Nos. 30, 31, 32. Petitioner did not object to the report and recommendation. The Court reviewed and adopted the magistrate judge's Report and Recommendation and accepted Doss' pleas of guilty to both counts. ECF No. 34.

         Petitioner subsequently filed two motions before the Court. First, Petitioner filed a motion to withdraw his guilty plea. ECF No. 35. The Court denied the motion, finding that there was no fair and just reason for doing so. See ECF No. 53. Petitioner also filed a motion to withdraw counsel for ineffective assistance of counsel. See id. at PageID #: 267. At the sentencing hearing, Doss orally withdrew that motion. ECF No. 53 at Page ID #: 269.

         Petitioner was adjudged guilty and sentenced to 188 months of incarceration. ECF No. 47. After the sentencing hearing, Petitioner filed an Anders brief with the United States Court of Appeals for the Sixth Circuit, alleging several bases for appeal, including ineffective assistance of counsel. See Sixth Circuit No. 17-4008, Docket No. 18-2 at 2 (June 25, 2018). The Sixth Circuit affirmed Doss' sentence on June 25, 2018, but also found that his ineffective assistance of counsel claim was premature because those objections should be raised in a Section 2255 motion to vacate. Id. at PageID #: 2.

         Doss filed the pending motion to vacate his sentence on June 17, 2019. ECF No. 57. Petitioner asserted three grounds of relief including: (1) ineffective assistance of counsel; (2) no factual basis for his guilty pleas as to Count Two; and (3) lack of due process at the change of plea hearing. Id.; ECF No. 57-1. After initial review of Petitioner's motion, pursuant to Rule 4(b) of the Rules Governing § 2255 Proceedings for the United States District Courts, the Court dismissed Grounds Two and Three and ordered the Government to file a response to Petitioner's motion on Ground One. ECF No. 59. The Court addresses the only remaining ground for relief, ineffective assistance of counsel, below.

         II. Standard of Review

         Section 2255 of Title 28, United States Code, provides:

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.

         In order to prevail upon a Section 2255 motion, the movant must allege as a basis for relief “(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.” Mallett v. United States, 334 F.3d 491, 496-97 (6th Cir. 2003) (quoting Weinberger v. United States, 268 F.3d 346, 351 (6th Cir. 2001)).

         III. Analysis

         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.