UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

NORTHERN DIVISION

KWAME AMIN MATHEWS,

Petitioner CRIM. CASE NO: 1:14-cr-20427

CIV. CASE NO.: 1:16-cv-10496

v. DISTRICT JUDGE THOMAS L. LUDINGTON

MAGISTRATE JUDGE PATRICIA T. MORRIS 

UNITED STATES OF AMERICA,

Respondent.

_______________________________/

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

ON PETITIONER’S 28 U.S.C. § 2255 MOTION

TO VACATE, SET ASIDE, OR CORRECT SENTENCE, AND MOTION TO

SUPPLEMENT, RESPONDENT’S MOTION TO DISMISS, AND TO DENY

DEFENDANT’S SUPPLEMENTAL MOTION

(Docs. 199, 207, 214, 217)

I. RECOMMENDATION

For the reasons set forth below, IT IS RECOMMENDED that Petitioner’s motion to

vacate (Doc. 199) be DENIED, that his motion to supplement be GRANTED (Doc. 214), that

Respondent’s motion to dismiss (Doc. 207) be GRANTED, and that the motion to deny

Defendant’s supplemental motion be DENIED. (Doc. 217.)

II. REPORT

A. Introduction

Pursuant to a Rule 11 plea agreement, Petitioner pleaded guilty to count eight of the

indictment which charged himwith distribution of cocaine base, aiding and abetting. (Doc. 76, 98.)

Petitioner was sentenced to 151 months incarceration which represented the bottom of the relevant

sentencing guideline range. (Doc. 147.) 

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At the plea taking, Petitioner was sworn in and testified that he was satisfied with counsel’s

service and that he knowingly and voluntarily chose to plead guilty because he was guilty. (Doc.

98 at ID 616, 631.) The material provisions were read, including that Defendant “knowingly and

voluntarily waive[d] that right [to post-conviction proceedings] and agree[d] not [to] contest his

conviction or sentence in any post-conviction proceeding, including but not limited to any

proceedings under 28 U.S.C. 2255.” (Id. at ID 624.) Petitioner assured the Court that no one

offered promises or made threats to trick him into agreeing to plead guilty, (Id. at ID 630-31), he

realized he was waiving the right to collateral attack, (Id. at ID 629), and that there was nothing

surprising or missing from the summary of the agreement. (Id. at ID 629-30.) The agreement

included the appeal and collateral attack waivers. (Plea Agreement, Doc. 76, at ID 395-96.) 

A Report issued recommending that Judge Ludington accept the guilty plea. (Report &

Recommendation, Doc. 78.) The District Judge agreed on October 31, 2014, adopting the

recommendation and taking the plea deal under advisement. (Order Adopting Report, Doc. 95.) 

Petitioner appealed his conviction and sentence and on September 2, 2015, the Sixth Circuit

granted the government’s motion to dismiss the appeal based on the appellate waiver provision

in his plea agreement. (Doc. 169.) The Sixth Circuit noted that Petitioner did not attack the validity

of the guilty plea, did not raise a failure to comply with Fed. R. Crim. P. 11, and did not contest

the knowing and voluntary nature of the waiver. (Id.) Instead, Petitioner argued that enforcement

would work a miscarriage of justice. The Sixth Circuit declined to recognize any miscarriage of

justice exception to enforcement of a valid waiver of appellate rights. The Sixth Circuit also noted

that even ifsuch an exception were recognized, it would not apply since Petitioner’s armed robbery

conviction was not classified as a predicate offense under the residual clause of USSG §

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4B1.2(a)(2). Thus, the holdings in United States v. Johnson, 135 S. Ct. at 2563(residual clause in

the ACCA) and United States v. Darden, 605 F. App’x at 546 (residual clause in sentencing

guidelines career offender provisions) did not apply to Petitioner’s case. 

On February 4, 2016, Petitioner filed the instant motion to vacate under 28 U.S.C. § 2255.

(Doc. 199.) Petitioner contends that his attorney was unprepared and negligent because: (1) he did

not prevent the career offender enhancements; (2) he did not challenge the allegation that

Petitioner played a leadership role; (3) he did not argue mitigating factors in Petitioner’s life; and

(4) he did not argue for application of the holding in United States v. Johnson. (Doc. 199 at ID

1126-27.) 

On February 29, 2016, Respondent filed a motion to dismiss the motion to vacate based on 

Petitioner’s waiver of his right to appeal or collaterally attack his conviction or sentence under 28

U.S.C. § 2255. (Doc. 207.) 

On March 28, 2016, Petitioner filed a “Motion” which the Court construed as a motion to

supplement his motion to vacate sentence. (Doc. 214.) In that motion, Petitioner asserted that he 

wrote the judge five descriptive letter’s explaining my lawyers failure’s and that

because I had just got out the hospital hour’s before I entered this plea from a

concussion it was by no means voluntarily. Not to mention this same October 2015

the attorney general sent a memorandum stating to no longer subject defendant’s with

pleas in which all these rights or waived to be allowed. These factor’s dictate a change

in my outcome...[sics omitted throughout]

(Doc. 214 at ID 1181.) Respondent then filed a motion to deny Petitioner’s motion to supplement

because he raised a new ground, i.e., that his guilty plea was not voluntarily made. (Doc. 214 at

ID 1187.) Respondent notes that Petitioner did not allege involuntariness on direct appeal nor did

he allege involuntariness in his motion under § 2255. Instead, Petitioner raised the issue only after

having the benefit of the government’s argument that his plea was knowing and voluntary and

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thus, that the waiver should be enforced. Respondent contends that Petitioner’s plea was knowing

and voluntary and that this “new argument to the contrary is disingenuous.” (Doc. 214 at ID 1189.) 

B. Law and Analysis

1. General Law

To prevail on a § 2255 motion “‘a petitioner must demonstrate the existence of an error of

constitutional magnitude which had a substantial and injurious effect or influence on the guilty

plea or the jury’s verdict.’” Humphress v. United States, 398 F.3d 855, 858 (6th Cir. 2005)

(quoting Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003)). Non-constitutional errors are

generally outside the scope of section 2255 relief. United States v. Cofield, 233 F.3d 405, 407 (6th

Cir. 2000). A movant can prevail on a section 2255 motion alleging non-constitutional error only

by establishing a “‘fundamental defect which inherently results in a complete miscarriage of

justice, or, an error so egregious that it amounts to a violation of due process.’” Watson v. United

States, 165 F.3d 486, 488 (6th Cir. 1999) (quoting United States v. Ferguson, 918 F.2d 627, 630

(6th Cir. 1990) (internal quotation marks omitted)). 

2. Waiver

“It is well settled that a defendant in a criminal case may waive ‘any right, even a

constitutional right,’ by means of a plea agreement.” United States v. Fleming, 239 F.3d 761, 763-

64 (6th Cir. 2001) (quoting United States v. Ashe, 47 F.3d 770, 775-76 (6th Cir. 1995)); accord

United States v. Calderon, 388 F.3d 197, 199 (6th Cir. 2004). Thus, the Sixth Circuit has “held

that a defendant’s informed and voluntary waiver of the right to collaterally attack a conviction

and sentence is enforceable.” In re Acosta, 480 F.3d 421, 422 (6th Cir. 2007); accord Davila v.

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United States, 258 F.3d 448, 450 (6th Cir. 2001) (noting that “plea agreement waivers of § 2255

rights are generally enforceable”). However, 

[I]n cases where a defendant argues that his plea was not knowing or voluntary, or

was the product of ineffective assistance of counsel under Hill v. Lockhart, 474 U.S.

52, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985), it would be entirely circular for the

government to argue that the defendant has waived his right to an appeal or

collateral attack when the substance of his claim challenges the very validity of the

waiver itself.

Acosta, 480 F.3d at 422. Nevertheless, “Enforcing appeal waivers makes good sense as well. A

waiver of appellate rights gives a defendant a means of gaining concessions from the government.

The government benefits, too, by saving the time and money involved in arguing appeals.” United

States v. Toth, 668 F.3d 374, 379 (6th Cir. 2012) (citations omitted). Therefore, as long as the plea

was knowing and voluntary, and not the product of ineffective assistance of counsel, the appellate

waiver will be enforced. Id.

Here, I suggest that Petitioner’s waiver was knowing and voluntary, and accordinglyshould

be enforced. Petitioner assured the Court that no one offered promises or made threats to trick him

into agreeing to plead guilty, (Id. at ID 630-31) and that he realized he was waiving the right to

collateral attack. (Id. at ID 629.) Petitioner argues, in his supplemental brief, that he had “just got

out the hospital hour’s before I entered this plea from a concussion it was by no means

voluntarily.” (Doc. 214 at ID 1181.) However, Petitioner does not connect “concussion” with any

failure to understand what was happening or any other symptoms that would prevent his plea from

being knowing or voluntary at the time of the plea taking. I note that at the plea taking, Petitioner

indicated that he was on medicine “for stitches” not for any concussion or any other head injury,

and that he was feeling okay:

COURT: Are you under the influence of any medicine today?

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DEFENDANT: I took some medicine for -- I don’t think it’s – I – just for my stitches.

COURT: Okay. I was going to say – you have stitches on your face?

DEFENDANT: Yeah.

COURT: Is that – is that correct? Are – are you feeling okay today?

DEFENDANT: Yes, your Honor.

COURT: And even though you’ve, you know, taken some medication because

of that, do you feel like it’s affecting you at all?

DEFENDANT: No, your Honor.

(Doc. 98 at ID 615.) In addition, the court, government counsel and defense counsel all concluded

that Petitioner was capable of tendering a knowing plea (Doc. 98 at ID 616) and Petitioner was

noted to be following along as government counsel was summarizing the plea agreement

provisions. (Doc. 98 at ID 625.) I therefore suggest that Petitioner’s allegation of involuntariness

is not sufficiently alleged to create an issue of fact as to the voluntariness of his plea. 

As to the waiver itself, it was read into the record by government counsel and the Court

specifically informed Petitioner of the breadth of the waiver and Petitioner indicated that he

understood:

COURT: ...your right to appeal either this guilty plea conviction or your

sentence has been waived by this agreement. In other words, you’ve

given up that right to appeal as long as your sentence does not exceed

– and this one is a straight number – one hundred and eighty-eight

months, so as long as Judge Ludington sentence you to one hundred

and eighty-eight months or less, you will not be able to appeal this

plea conviction or your sentence even if that guideline range has

changed or other things have happened. Do you understand that?

DEFENDANT: Yes, your Honor.

COURT: And that – the scope of that is that you cannot directly appeal your –

your plea conviction by saying, you know, ‘I didn’t want to plead

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guilty,’or, ‘I didn’t – I didn’t understand what I was pleading guilty

to.’ You won’t be able to appeal that part of it – your conviction – and

you also will not be able to appeal your sentence, and that covers a

direct appeal. It also covers any post-conviction motions that go by

various names. They’re sometimes called habeas corpus, federal

habeas claim, motion to vacate sentence. Sometimes people use a

shorthand which references the statute, and they’ll call it a 2255

motion, but you won’t be able to file any of those motions

successfully. Do you understand that?

DEFENDANT: Yes, your Honor. 

(Doc. 98 at ID 628-29.) For all the reasons stated above, I suggest that the collateral attack waiver

should be enforced and bars Petitioner’s motion to vacate sentence.

Even if the waiver were not enforced, the result would be the same. Petitioner contends that

his attorney was unprepared and negligent because: (1) he did not prevent the career offender

enhancements; (2) he did not challenge the allegation that Petitioner played a leadership role; (3)

he did not argue mitigating factors in Petitioner’s life; and (4) he did not argue for application of

the holding in United States v. Johnson. (Doc. 199 at ID 1126-27.) 

Claims of ineffective assistance of counsel are governed by the U.S. Supreme Court’s rule

pronounced in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). 

In Strickland, the Court enunciated a two-pronged test that must be satisfied to prevail on an

ineffective assistance of counsel claim. First, the movant must show that counsel’s performance

was deficient in that it fell below an objective standard of reasonableness. Id. at 688.

“Constitutionally effective counsel must develop trial strategy in the true sense – not what bears

a false label of ‘strategy’ – based on what investigation reveals witnesses will actually testify to,

not based on what counsel guesses they might say in the absence of a full investigation.” Ramonez

v. Berghuis, 490 F.3d 482, 488 (6th Cir. 2007). Second, the movant must show that he was

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prejudiced by the deficiency to such an extent that the result of the proceeding is unreliable.

Strickland, 466 U.S. at 688. It is not enough to show that the alleged error “had some conceivable

affect on the outcome of the proceeding.” Id. Rather, the movant must show that, but for counsel’s

errors, the result would have been favorably different. Id. at 693. Failure to make the required

showing under either prong of the Strickland test defeats the claim. Id. at 700.

The Supreme Court has explained that “[t]he essence of an ineffective-assistance claim is

that counsel’s unprofessional errors so upset the adversarial balance between defense and

prosecution that the trial was rendered unfair and the verdict rendered suspect.” Kimmelman v.

Morrison, 477 U.S. 365, 374, 106 S. Ct. 2574, 91 L. Ed. 2d 305 (1986). This language highlights

the Supreme Court’s consistent view that the Sixth Amendment right to counsel is a safeguard to

ensure fairness in the trial process.

In Lockhart v. Fretwell, 506 U.S. 364, 113 S. Ct. 838, 122 L. Ed. 2d 180 (1993), the Court

clarified the meaning of “prejudice” under the Strickland standard, explaining: 

Under our decisions, a criminal defendant alleging prejudice must show “that

counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial

whose result is reliable.” . . . Thus, an analysis focusing solely on the mere outcome

determination, without attention to whether the result of the proceeding was

fundamentally unfair or unreliable, is defective.

Lockhart, 506 U.S. at 369 (citations omitted).

Ineffective assistance of counsel claims “may be brought in a collateral proceeding under

§ 2255 whether or not the petitioner could have raised the claim on direct appeal.” Massaro v. 

United States, 538 U.S. 500, 504, 123 S. Ct. 1690, 155 L. Ed. 2d 714 (2003).

As to the career offender and Johnson issues, since the Sixth Circuit addressed them and

found they lacked merit, I suggest that these claims are procedurally barred. “[A] § 2255 motion

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may not be employed to relitigate an issue that was raised and considered on direct appeal absent

highly exceptional circumstances, such as an intervening change in the law.” Jones v. United

States, 178 F.3d 790, 796 (6th Cir. 1999). Petitioner has alleged no such exceptional circumstances

justifying further review, and the record reveals none. In addition, when the appellate court has

found the underlying argument to be without merit, any claim that a trial attorney was ineffective

for failing to raise the same error is also procedurally barred. See United States v. Ramirez, 327

F. App’x 751, 752 (9th Cir. 2009) (“Because we held on direct appeal that any error . . .was

harmless, Ramirez is barred from contending here that his attorney rendered ineffective

assistance.”). Stated differently, a movant “cannot use a § 2255 proceeding, in the guise of

ineffective assistance of counsel, to relitigate issues decided adversely to him on direct appeal.”

Clemons v. United States, No. 3:01-CV-496, 3:97-CR-16, 2005 WL 2416995, at *2 (E.D. Tenn.

Sept. 30, 2005) (citing DuPont v. United States, 76 F.3d 108, 110 (6th Cir. 1996)). Accord, Lossia

v. United States, No. 04-80422, 2010 WL 3951078, at *4 (E.D. Mich. July 1, 2010). Furthermore,

even if the claims were not procedurally barred, I suggest the result would be the same. Since the

Sixth Circuit has held that the alleged errors were without merit, any failure on the part of counsel

for not raising them could not have prejudiced Petitioner as required under Strickland. See

Lockhart, 506 U.S. at 369. 

As to Petitioner’s claims that defense counsel did not challenge the allegation that

Petitioner played a leadership role and did not argue mitigating factors in Petitioner’s life, I

suggest that the record reveals his counsel did in fact argue these issues on his behalf. In his

sentencing memorandum, Petitioner’s counsel argued that Petitioner was a low-level dealer, that

he has physical maladies including loss of vision in his left eye and a recent onset of multiple

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sclerosis, that Petitioner had psychiatric issues including depression, PTSD, ADHD, cannabis

abuse and personality disorder. (Doc. 134.) In this circuit, counsel is not ineffective for raising

arguments unsuccessfully. See Hodge v. Haeberlin, 579 F.3d 627, 644 (6th Cir. 2009) (“Counsel

does not fall below this [Strickland] standard by failing to prevail when arguing a debatable point

to the court.”). Therefore, I suggest that these grounds lack merit. 

D. Evidentiary Hearing

Section 2255 states that 

[u]nless the motion and the files and the records of the case conclusively show that

the prisoner is entitled to no relief, the court shall cause notice thereof to be served

upon the United States attorney, grant a prompt hearing thereon, determine the

issues and make findings of fact and conclusions of law with respect thereto.

28 U.S.C. § 2255(b). The Sixth Circuit has “observed that a Section 2255 petitioner’s burden for

establishing an entitlement to an evidentiaryhearing is relativelylight.” Smith v. United States, 348

F.3d 545, 551 (6th Cir. 2003) (citation omitted). “In reviewing a § 2255 motion in which a factual

dispute arises, ‘the habeas court must hold an evidentiary hearing to determine the truth of the

petitioner’s claims.’” Valentine v. United States, 488 F.3d 325, 333 (6th Cir. 2007). 

On the other hand, no hearing is required if the motion’s allegations “cannot be accepted

as true because they are contradicted by the record, inherently incredible, or conclusions rather

than statements of fact.” Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999) (citation

omitted). Additionally, 

The words ‘grant a prompt hearing’ are not magic words requiring a district judge,

who is fully familiar with the circumstances under which a guilty plea was made,

to duplicate procedures and conduct a hearing to resolve alleged fact issues which

can and should be decided on the record that already exists. 

United States v. Todaro, 982 F.2d 1025, 1030 (6th Cir. 1993).

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In the instant case, there is no material factual dispute that a hearing could address. I

therefore suggest that Petitioner is not entitled to a hearing on the allegations raised in his motion.

E. Conclusion

I recommend that the Court deny Petitioner’s motion to vacate sentence (Doc. 199), grant

Respondent’s motion to dismiss (Doc. 207,) grant Petitioner’s motion to supplement (Doc. 214,)

and deny Respondent’s motion to deny supplemental motion. (Doc. 217.)

III. REVIEW

Pursuant to Rule 72(b)(2) of the Federal Rules of Civil Procedure, “[w]ithin 14 days after

being served with a copy of the recommended disposition, a party may serve and file specific

written objections to the proposed findings and recommendations. A partymay respond to another

party’s objections within 14 days after being served with a copy.” Fed. R. Civ. P. 72(b)(2). See

also 28 U.S.C. § 636(b)(1). Failure to file specific objections constitutes a waiver of any further

right of appeal. Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466, 88 L. Ed.2d 435 (1985); Howard v.

Sec’y of Health &Human Servs., 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 638 F.2d

947 (6th Cir. 1981). The parties are advised that making some objections, but failing to raise

others, will not preserve all the objections a party may have to this Report and Recommendation.

Willis v. Sec’y of Health & Human Servs., 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit

Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). Pursuant to E.D. Mich. LR

72.1(d)(2), a copy of any objections is to be served upon this magistrate judge. 

Anyobjections must be labeled as “Objection No. 1,” “Objection No. 2,” etc. Anyobjection

must recite precisely the provision of this Report and Recommendation to which it pertains. Not

later than 14 days after service of an objection, the opposing party may file a concise response

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proportionate to the objections in length and complexity. Fed. R. Civ. P. 72(b)(2); E.D. Mich. LR

72.1(d). The response must specifically address each issue raised in the objections, in the same

order, and labeled as “Response to Objection No. 1,” “Response to Objection No. 2,” etc. If the

Court determines that any objections are without merit, it may rule without awaiting the response.

Date: July 14, 2016 s/ Patricia T. Morris

Patricia T. Morris

United States Magistrate Judge

CERTIFICATION

I hereby certify that the foregoing document was electronically filed this date through

the Court’s CM/ECF system which delivers a copy to all counsel of record. A copy was also

sent via First Class Mail to Kwame Amin Mathews #50234-039 at Rochester Federal Medical

Center, Inmate Mail/Parcels, P.O. Box 4000, Rochester, MN 55903.

Date: July 14, 2016 By s/Kristen Krawczyk 

 Case Manager to Magistrate Judge Morris

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