UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff/Respondent,

vs. Case No. 14-20756

STEPHEN OMAR DURRANT, HON. AVERN COHN

Defendant/Petitioner.

_______________________________/

MEMORANDUM AND ORDER DENYING MOTION UNDER 28 U.S.C. § 2255

(Doc. 138)

AND DECLINING TO ISSUE A CERTIFICATE OF APPEALALBILITY

I. Introduction

This is a criminal case. Defendant/Petitioner Stephen Omar Durrant (Durrant)

plead guilty under a Rule 11 agreement to conspiracy to import controlled substances

and making a false statement during the acquisition of a firearm. The Court sentenced

Durrant to 60 months, within the guideline range in the Rule 11 agreement of 57 to 71

months but below the probation department’s calculated guidelines range of 70-87

months. Durrant appealed. The Court of Appeals for the Sixth Circuit dismissed the

appeal, upholding the appellate waiver in the plea agreement and finding no miscarriage

of justice. United States v. Durrant, No. 16-1861 (6th Cir. Apr. 13, 2017). 

Before the Court is Durrant’s pro se motion under 28 U.S.C. § 2255. (Doc. 138). 

Durrant raises several allegations of ineffective assistance of counsel. The government

has filed a response (Doc. 147) and Durrant a reply (Doc. 148). For the reasons that

follow, the motion will be denied. 

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II. Legal Standards

28 U.S.C. § 2255 provides:

A prisoner in custody under a sentence of a court established by Act of Congress

claiming the right to be released upon the ground that the sentence imposed was

in violation of the Constitution or laws of the United States, or that the court was

without jurisdiction to impose such a 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.

28 U.S.C. § 2255(a). To prevail on a § 2255 motion, “a petitioner must demonstrate the

existence of an error of constitutional magnitude which has 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). A movant can prevail on a § 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).

As “[§] 2255 is not a substitute for a direct appeal,” Regalado v. United States,

334 F.3d 520, 528 (6th Cir. 2003) (citing United States v. Frady, 456 U.S. 152, 167-68

(1982)), “a prisoner must clear a significantly higher hurdle than would exist on direct

appeal” to merit collateral relief, Frady, 456 U.S. at 166. Though non-constitutional

errors are generally outside the scope of § 2255 relief, see United States v. Cofield, 233

F.3d 405, 407 (6th Cir. 2000), a petitioner can prevail on a § 2255 motion alleging

non-constitutional error “by establish[ing] 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, 165 F.3d at 488 (internal quotation marks omitted)

(quoting United States v. Ferguson, 918 F.2d 627, 630 (6th Cir. 1990)). Accordingly,

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alleged sentencing errors, including the proper application of the guidelines, “does not

warrant collateral relief under § 2255 absent a complete miscarriage of justice.” Jones,

178 F.3d at 796.

Durrant has raised allegations of ineffective assistance of counsel which may be

raised for the first time in a § 2255 motion. Massaro v. United States, 538 U.S. 500,

508–09 (2003). To establish ineffective assistance of counsel under the Sixth

Amendment, Durrant must satisfy the two-prong test set forth in Strickland v.

Washington, 466 U.S. 668 (1984). Durrant must first show that his counsel's

performance was deficient, which “requires a showing that counsel made errors so

serious that counsel was not functioning as the ‘counsel’ guaranteed by the Sixth

Amendment.” Id. at 687. A court must afford defense attorneys “wide latitude” and, in

analyzing their conduct under the Sixth Amendment, must make “every effort” to

“eliminate the distorting effects of hindsight, to reconstruct the circumstances of

counsel's challenged conduct, and to evaluate the conduct from counsel's perspective

at the time.” Id. at 689. Defense counsel are entitled to a “strong presumption” that

they made “all significant decisions in the exercise of reasonable professional

judgment.” Cullen v. Pinholster, 131 S. Ct. 1388, 1407 (2011). 

If Durrant succeeds in proving deficient performance, he must next show that the

deficient performance was prejudicial. Prejudice requires more than “some conceivable

effect on the outcome of the proceeding,” Durrant must demonstrate “a reasonable

probability that, but for counsel's unprofessional errors, the result of the proceeding

would have been different.” Strickland, 466 U.S. at 693-94.

Finally, It is well established that “[a] § 2255 motion may not be used to relitigate

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an issue that was raised on appeal absent highly exceptional circumstances.” Dupont

v. United States, 76 F.3d 108, 110-11 (6th Cir. 1996)

III. Analysis

Durrant says his trial and appellate counsel provided ineffective assistance of

counsel. None of his allegations of deficient performance pass the Strickland test as

applied on habeas review. Each allegation of ineffective assistance is addressed in turn

below. 

A. Rule 11 Plea/Safety Value Reduction

Durrant says that trial counsel told him to lie to the Court concerning his

signature on the Rule 11 agreement, advised him to enter into a “C” plea agreement,

without first establishing drug quantity in his case, failed to understand a plea made

under a “C” agreement and gave him incorrect advice concerning the safety valve

reduction and that appellate counsel should have raised these errors on appeal. None

of these allegations merit relief.

By way of background, the Rule 11 agreement anticipated a guidelines range of

57-71 months (Doc. 85). The “C” agreement provided that the sentence of

imprisonment could not exceed the top of the anticipated sentencing guideline range of

71 months. At the conclusion of the plea hearing, the Court accepted Durrant’s guilty

plea and took the Rule 11 agreement under advisement (Doc. 98: Tr. 11/23/15, PgID

431).

Following the plea hearing, the probation department prepared a presentence

report. After considering additional enhancement points based upon Durrant’s role in

the offense, the probation department calculated a guidelines range of 70-87 months. 

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However, because Durrant entered his guilty plea under a “C” agreement, the

guidelines became 70-71 months. Ultimately, the Court departed downward from the

probation department’s guideline and sentenced Durrant to 60 months’ imprisonment. 

On appeal, Durrant argued that his plea and waiver provision in the Rule 11

agreement were invalid because of certain misstatements by the Court as to his

potential guideline range (50-71 months instead of 57-71 months) and the government’s

right to withdraw. The Sixth Circuit rejected Durrant’s arguments and held that

Durrant’s plea was voluntary. United States v. Durrant, No. 16-1861 (6th Cir. Apr. 13,

2017). 

In light of the Sixth Circuit’s decision, Durrant cannot relitigate issues surrounding

the voluntariness of his plea on collateral review. Thus, any claim that the plea was

involuntary due to when Durrant signed the plea agreement and whether Durrant or his

counsel understood the impact of a Rule 11 “C” plea cannot form the basis for relief. 

However, as explained below, trial counsel was not ineffective in the manner in which

he handled the plea process.

Durrant says that trial counsel did not establish drug quantity before entering into

the Rule 11 agreement. This argument lacks merit. Durrant admitted in the Rule 11

agreement to importing approximately 300 KG marijuana equivalent into the United

States (Doc. 85). The drug amounts were derived from analyzing the pills recovered

from the co-defendants, who had transported the drugs into the United States at the

direction of Durrant. Under the sentencing guidelines, §2D1.1(c)(8), the base offense

level for amounts between 100 – 400 KG is 24. This is the level which was used in

calculating Durrant’s guidelines. Further, at the time of the plea colloquy, it was placed

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on the record that if the drug amounts were not accurately reflected in the Rule 11

agreement, and adjustment would be made (Doc. 98: Plea Hearing 11/23/2015, Pg ID

422). Thus, the drug quantity was clearly established and Durrant is not entitled to relief

on this ground.

Durrant also says that trial counsel did not advocate for the safety valve

reduction in his sentence. This contention lacks merit. First, the court of appeals

addressed Durrant’s claim concerning safety valve eligibility and determined that there

was no error because the Court permitted trial counsel to argue the issue at sentencing. 

Second, the record shows that trial counsel fully raised the issue of whether Durrant

was eligible for the safety value. Although the Rule 11 agreement did not mention a

possible safety valve reduction, at the conclusion of the plea colloquy, Durrant’s trial

counsel mentioned a potential safety valve deduction. The Court indicated that Durrant

could argue that later, at the time of sentencing (Doc. 98; Tr. 11/23/15, Pg ID 430). 

After the plea hearing, trial counsel filed a motion requesting safety valve

consideration. (Doc. 109). In the motion, Durrant acknowledged that a safety valve

reduction is not applicable to the firearms charge to which he pleaded guilty, however,

he argued that because the gun charges were “not part of the same course of conduct

or of a common scheme or plan”, he should be eligible for the reduction. The

government filed a response arguing that Durrant’s claim for safety valve eligibility fails

on four grounds: (1) he is not facing a mandatory minimum sentence on the drug related

offense, as necessary for relief under 18 U.S.C. §3553(f) and U.S.S.G. §5C1.2; (2) he

was an organizer, leader, manager or supervisor of others in the offense; (3) he

possessed firearm(s) in connection with the offense, as defined by U.S.S.G. §5C1.2, as

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relevant conduct conducted as part of the same course of conduct or the common

scheme of plan in importing drugs from Canada to be exchanged for guns to be

exported into Canada, and, (4) he has not truthfully provided to the government all

information concerning the offenses of drug smuggling and firearms purchases by

himself and others, at his direction, which were being unlawfully exported into Canada.

(Doc. 112).

During the sentencing hearing, Durrant’s counsel again argued for the safety

valve reduction (Doc. 135: Tr. 6/6/16, Pg ID 646). Durrant also asked the Court to

consider the reduction. The government argued for a sentence of 71 months, arguing

that the firearms were involved with the narcotics and the smuggling scheme by Durrant

and that Durrant was a leader in the conspiracy to import the drugs. Ultimately, the

Court imposed a 60 months sentence. The fact that the Court did not apply the safety

value does not mean trial counsel was ineffective. Appellate counsel was not ineffective

for not raising the issue on appeal.

B. Sentencing Enhancements

Durrant next argues that his trial counsel was ineffective for failing to challenge

an enhancement to his sentence for being a leader, manager or supervisor under

U.S.S.G. §3B1.1(c). This argument lacks merit.

Upon questioning by the Court at his plea hearing, Durrant acknowledged getting

drugs from Canada and receiving them into the United States to be sold. He admitted

that he had “contacts in Canada” who were bringing the drugs into the United States

(Doc. 98: Tr. 11/23/15, Pg ID 426). He also admitted that there were “others involved”

in the drug importation conspiracy. As noted in the presentence report, both the female

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couriers and the others involved in the firearms offenses indicated that they took

direction from Durrant in engaging in the criminal activity. Thus, there was a basis for

the enhancement and neither trial nor appellate counsel was ineffective for not

challenging it. 

Durrant also received an enhancement based upon the number of the firearms

involved in the crime. The enhancement was proper under U.S.S.G. §2K2.1(b)(1)(D). 

Durrant was aware of the enhancement because it was included in the Rule 11 plea

agreement worksheets, to which he agreed at the time of sentencing. Durrant also

admitted to purchasing a large number of firearms himself (37) during a short period of

time (Doc. 85). A number of the firearms connected to Durrant were recovered by

Canadian law enforcement, supporting the government’s theory that Durrant was

smuggling the firearms into Canada. Several of the firearms recovered in Canada had

the serial numbers partially obliterated. Durrant also admitted to transferring a number

of firearms to others, after a reported break-in at his residence. Each of the firearms

transactions were documented and established through evidence during the discovery

process. Thus, trial counsel was not ineffective for failing to challenge the application of

the enhancement nor was appellate counsel deficient in not pursuing the issue on

appeal. 

C. Bifurcation

Durrant next argues that trial counsel was ineffective because he failed to pursue

the bifurcation of the charges against Durrant. This argument is belied by the record.

Trial counsel filed a motion to sever. See Doc. 67. The government and Durrant’s

counsel later stipulated that if the case proceeded to trial, two trials would be held; one

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involving Durrant and co-defendant Carter involving the drug charges and the second

trial involving only Durrant and the firearms charges. (Doc. 109). However, the parties

then negotiated a plea agreement which allowed Durrant to plead guilty to one of the

drug charges (Count One) and one of the firearms charges (Count Five). The joint plea

resolution was favorable to Durrant. He was sentenced below the applicable and

anticipated guideline range. Thus, neither trial counsel nor appellate counsel were

ineffective regarding bifurcation.

D. Immigration Status

Durrant next says that trial counsel gave him incorrect advice concerning the

consequences of his guilty plea on his immigration status. This contention lacks merit.

The Rule 11 agreement specifically includes, in paragraph 4, a “Padilla Waiver” which

indicates that Durrant was aware that his guilty plea could affect his immigration status

in this country and that he discussed the immigration consequences with his counsel

during plea negotiations. The waiver also states that Durrant would not “seek to

challenge his guilty plea in any later proceeding via collateral attack on any basis

relating to the immigration consequences of his plea.” During the plea colloquy, Durrant

acknowledged that he was aware that he could be removed from the United States

(Doc. 98: Tr. 11/23/15, Pg ID 416, 417). The Court specifically addressed the issue with

him, and he indicated he understood (Doc. 98: Tr. 11/23/15, Pg ID 417). The Court

even cautioned Durrant that he could not come back after the plea and indicate that he

did not understand the immigration issue (Doc. 98: Tr. 11/23/15, Pg ID 418).

Thus, it is clear trial counsel communicated the immigration consequences to Durrant

and that Durrant was fully aware of them at the time of plea and sentencing. Neither

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trial nor appellate counsel was ineffective in this regard.

E. Speedy Trial

Durrant further says that trial counsel was ineffective because he failed to

challenge the second superseding indictment, his plea and his conviction as being in

violation of the Speedy Trial Act, 18 U.S.C. § 3161(b). This argument is not well taken. 

Durrant was originally indicted in a First Superseding Indictment on December 23, 2014

(Doc. 12). On February 25, 2015, Durrant and the other defendants agreed to adjourn

the trial and waive speedy trial rights until June 22, 2015. (Doc. 29). A Second

Superseding Indictment was filed on March 31, 2015. (Doc. 30). On May 7, 2015,

Durrant and the other defendants agreed to an adjournment of the trial date and waiver

of speedy trial rights until September 15, 2015. (Doc. 48). On August 31, 2015, Durrant

filed pre-trial motions, which extended the speedy trial clock. (Doc. 67). A trial was

scheduled for November 16, 2015. (Doc. 71). On October 20, 2015, Durrant and the

other defendants agreed to a continuance until December 1, 2015. (Doc. 77). On

November 23, 2015, Durrant entered his guilty plea to Counts One and Five of the

Second Superseding Indictment. See Doc. 82.

Under 18 U.S.C. §3161, a court may grant continuances on his/her own, or at the

request of the parties, if the ends of justice served by the continuance outweigh the best

interest of the public and the defendants in a speedy trial. Continuances may be

granted when a party files a pre-trial motion. See 18 U.S.C. §3161(h)(1)(D). 

As set forth above, there was no violation of Durrant’s speedy trial rights. The

Court entered the stipulations of the parties finding that the ends of justice were served

by allowing the continuances in the proceedings. The proceedings moved within the

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time frame of the stipulations. Trial counsel was not ineffective in agreeing to move the

trial clock nor was appellate counsel ineffective for not raising the issue on appeal.

F. Overall

There is no evidence that trial or appellate counsel rendered legal assistance

which “fell short of the norms of the legal profession.” United States v. Morrow, 977

F.2d 222, 229 (6th Cir. 1992) (en banc) or was inadequate. To the contrary, trial and

appellate counsel rendered effective assistance. Trial counsel secured a Rule 11

agreement which was favorable to Durrant. The Court sentenced Durrant to a term of

imprisonment below the probation department’s guidelines range and below that argued

for by the government. Appellate counsel challenged the waiver on appeal, but was

ultimately not successful. Based on the record, it cannot be said that counsel was

deficient or that Durrant was prejudiced the representation he received. 

Finally, because Durrant’s claims of error amount to no more than his attorneys’

refusal to take positions contrary to well established precedent, or to argue against

certain well-documented facts, an evidentiary hearing is not necessary to determine that

Durrant received effective assistance of counsel. Green v. United States, 65 F.3d 546

(6th Cir. 1995)(where files and records of the court clearly show that petitioner is entitled

to no relief, no hearing of any kind is required); Turner v. United States, 183 F.3d 474

(6th Cir. 1999)(no hearing required unless there is a factual dispute about the

constitutional infirmity of counsel’s performance).

IV. Conclusion

For the reasons stated above, Durrant has not demonstrated that he is entitled to

relief under § 2255. Accordingly, the motion is DENIED.

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Furthermore, reasonable jurists would not debate the Court's assessment of

Hilton’s claims, nor conclude that the issues deserve encouragement to proceed further. 

The Court therefore DECLINES to grant a certificate of appealability under 28 U.S.C. §

2253(c)(2).1 See Slack v. McDaniel, 529 U.S. 473, 484 (2000). 

SO ORDERED.

S/Avern Cohn 

AVERN COHN

UNITED STATES DISTRICT JUDGE

Dated: 5/10/2018

Detroit, Michigan 

1

The district court must issue or deny a certificate of appealability when it enters

a final order adverse to the applicant. See Rules Governing § 2254 Cases, Rule 11(a),

28 U.S.C. foll. § 2254.

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