United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OF OPINION AND ORDER
PATRICIA A. GAUGHAN, UNITED STATES DISTRICT COURT.
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.
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.
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.
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).
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
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.
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
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 ...