United States District Court, N.D. Ohio, Eastern Division
PRESTON W. DOSS, Petitioner,
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM OF OPINION AND ORDER [RESOLVING ECF NO.
Y. PEARSON UNITED STATES DISTRICT JUDGE.
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. 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.
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.
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.
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.
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.
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.
Standard of Review
2255 of Title 28, United States Code,
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
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)).