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United States v. Maxwell

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

December 12, 2019

United States of America, Plaintiff,
v.
Justin Maxwell, Defendant.

          MEMORANDUM OF OPINION AND ORDER

          PATRICIA A. GAUGHAN, UNITED STATES DISTRICT COURT.

         Introduction

         This matter is before the Court upon defendant's Motion under § 2255 to Vacate, Set Aside, or Correct Sentence (Doc. 222). For the following reasons, the motion is DENIED.

         Facts

         On direct appeal of defendant's conviction and sentence, the United States Court of Appeals for the Sixth Circuit summarized the case:

This case is one in a long series of elaborate, nearly-identical sting operations conducted by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”). In these operations, referred to as “stash house stings, ” an undercover agent recruits individuals to steal a large quantity of drugs from a house protected by an armed guard. The house, the drugs, and the guards, however, are all fictional-and would-be participants are arrested before they reach the invented location. After such a sting operation, Kali Alexander, Terrance Chappell, Kenneth Flowers, Justin Maxwell, and Rasheam Nichols were arrested, tried, and convicted of conspiracy to possess with intent to distribute five or more kilograms of cocaine and using or carrying a firearm during and in relation to a drug conspiracy.

         The Sixth Circuit affirmed all defendants' convictions and sentences. Now pending before this Court is defendant Justin Maxwell's Motion under § 2255 to Vacate, Set Aside, or Correct Sentence.

         Standard of Review

         28 U.S.C. § 2255 provides a prisoner in federal custody a remedy to collaterally attack his sentence on the ground that it was imposed in violation of the Constitution or laws of the United States. A prisoner may move to vacate, set aside, or correct his sentence upon the basis 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.” 28 U.S.C. § 2255. To warrant relief under the statute because of constitutional error, the error must be one of constitutional magnitude which had a substantial and injurious effect or influence on the proceedings. Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (citation omitted); Humphress v. United States, 398 F.3d 855, 858 (6th Cir.2005).

         Discussion

         Defendant's brief sets forth seven grounds for relief which he identifies as follows: 1) probable cause, 2) entrapment, 3) jury instruction/affirmative defense, 4) actual innocence, 5) prosecutorial misconduct, 6) sentencing manipulation and sentencing entrapment, and 7) ineffective assistance of counsel.[1]

         The government argues that grounds two, three, five, and six have already been raised on direct appeal and rejected by the Sixth Circuit and, consequently, cannot be relitigated here.

         “A movant may not use a § 2255 motion “to relitigate an issue that was raised and considered on direct appeal absent highly exceptional circumstances, such as an intervening change in the law.”Scott v. United States, 2018 WL 5879812, at *2 (6th Cir. Aug. 16, 2018)(quoting Jones v. United States, 178 F.3d 790, 796 (6th Cir. 1999)); DuPont v. United States, 76 F.3d 108, 110 (6th Cir. 1996) (quoting United States v. Brown, 1995 WL 465802, at *1 (6th Cir. Aug. 4, 1995) (“A § 2255 motion may not be used to relitigate an issue that was raised on appeal absent highly exceptional circumstances.”)

         Contrary to the government's assertion, defendant Maxwell only raised grounds five (prosecutorial misconduct) and six (sentencing manipulation/sentencing entrapment) on direct appeal. The prosecutorial misconduct claim was rejected because while the comments were found to be improper, the proof of guilt of the conspiracy was strong. Therefore, Ground Five fails as it was raised and rejected on direct appeal. However, although Ground Six was raised on direct appeal, the Sixth Circuit declined to resolve the issue of whether sentence manipulation or sentence entrapment are recognizable doctrines in this circuit. In fact, the court stated, “We decline to resolve that question here and leave it for another ...


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