UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

NORTHERN DIVISION

STEPHON DELEON PICKETT,

 CRIMINAL CASE NO. 15-CR-20384

Petitioner, CIVIL CASE NO. 16-CV-11594

v.

 DISTRICT JUDGE THOMAS L. LUDINGTON

UNITED STATES OF AMERICA, MAGISTRATE JUDGE PATRICIA T. MORRIS

Respondent.

/

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

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

TO VACATE, SET ASIDE, OR CORRECT SENTENCE AND 

RESPONDENT’S MOTION TO DISMISS

(Docs. 29, 34 )

I. RECOMMENDATION

For the following reasons, IT IS RECOMMENDED that Petitioner’s Motion (Doc. 29)

be DENIED; that Respondent’s Motion to Dismiss (Doc. 34) be GRANTED and that the civil

case be DISMISSED.

II. REPORT

A. Introduction

On September 2, 2015, Petitioner pled guilty to Count 1 of the indictment charging him

with distribution of cocaine base in violation of 21 U.S.C. § 841(a)(1). (Doc. 15.) On

December 15, judgment was entered and Petitioner was sentenced to 151 months incarceration.

(Doc. 20.) Petitioner filed an appeal and on August 29, 2016, the Sixth Circuit dismissed

Petitioner’s appeal, granting Respondent’s motion to dismiss based upon the appellate-waiver

provision in the plea agreement. (Doc. 36.) Prior to this appellate decision issuing, on May 2,

1:15-cr-20384-TLL-PTM Doc # 37 Filed 12/08/16 Pg 1 of 5 Pg ID 158
2016, Petitioner filed the instant motion to vacate sentence. (Doc. 29.) On May 31, 2016,

Respondent filed the instant motion to dismiss because Petitioner’s appeal was still pending

and because Petitioner’s sentence was enhanced, under the career offender guideline, based on

his three qualifying controlled substance convictions; thus, his prior conviction for felonious

assault was not used and did not impact the application of the career offender guideline. (Doc.

34 at ID 152.) 

B. Analysis and Conclusion

The portion of Respondent’s motion to dismiss that argues for dismissal based on the

fact that Petitioner’s appeal is still pending is no longer relevant since his appeal has been

decided and denied. Accordingly, I will focus on the substantive grounds raised in the motion

to vacate and the motion to dismiss. 

Petitioner’s sole asserted ground for relief is the decision of the United States Supreme

Court in Johnson v. United States, 135 S. Ct. 2551 (2015). (Doc. 29.) 

In Johnson, the Supreme Court held that the Armed Career Criminal Act’s (ACCA’s)

residual clause, i.e., the clause that defines a “violent felony” to include an offense that

“involves conduct that presents a serious potential risk of physical injury to another” is

unconstitutionally vague and violates due process. 18 U.S.C. § 924(e)(2)(B)(ii). The Supreme

Court has further held that Johnson has retroactive effect in cases on collateral review. Welch v.

United States, 136 S. Ct. 1257, 1265 (2016). 

Johnson marks the beginning of a wave of federal court decisions analyzing the

propriety of sentencing enhancements under the ACCA (including Mathis) and similar

provisions under the sentencing guidelines. 

2

1:15-cr-20384-TLL-PTM Doc # 37 Filed 12/08/16 Pg 2 of 5 Pg ID 159
As to the sentencing guidelines, the Sixth Circuit has held that since the United States

Sentencing Guidelines (USSG) § 4B1.1 (career offender enhancement) also has a residual

clause that is identical in wording to the residual clause in the ACCA, the Johnson rationale

applies equally to the sentencing guidelines residual clause defining a crime of violence. USSG

§ 4B1.2(a); United States v. Pawlak, No. 15-3566, 2016 WL 2802723, at *8 (6th Cir. Mar. 13,

2016). 

Johnson concerned the second half of the phrase under the ACCA §924(e)(2)(B)(ii), i.e.,

the residual clause. The residual clause follows a list of enumerated violent felonies under

§924(e)(2)(B)(ii), i.e., “burglary, arson, or extortion, involves the use of explosives...” Mathis

v. United States, ___ U.S. ___, 136 S. Ct. 2243 (2016) governs how to interpret whether a state

conviction qualifies under this list of generic offenses.

In Mathis, the Court held that in determining whether a prior state violent felony

conviction counts toward a federal sentence enhancement under the ACCA, courts must apply

the categorical approach - not the modified categorical approach - where a criminal statute

establishes various means for satisfying a single element. Mathis focuses on the portion of the

same subsection of the ACCA that was not addressed by the Court in Johnson. The Court in

Mathis found that Iowa’s burglary statute had a broader locational element than generic

burglary and thus, the Iowa conviction could not qualify as a prior violent felony conviction

under the ACCA’s enumerated offenses of “burglary, arson, or extortion, involves the use of

explosives...” §924(e)(2)(B)(ii). 

On October 26, 2016, the Sixth Circuit decided United States v. Ritchey, 840 F.3d 310

(6th Cir. 2016). The Sixth Circuit provided a method for analyzing potential predicate

3

1:15-cr-20384-TLL-PTM Doc # 37 Filed 12/08/16 Pg 3 of 5 Pg ID 160
convictions used under the ACCA as interpreted by the Court in Mathis and held that a

conviction under Mich. Comp. Laws §750.110, for breaking and entering a building with intent

to commit a felony or larceny therein, could not qualify as a violent felony under the ACCA

since its elements were broader than those of the generic enumerated offense of burglary.

Therefore, the Sixth Circuit vacated Ritchey’s sentence and remanded for resentencing

consistent with its decision and the United States Supreme Court’s decision in Mathis.

Case law on the topic of either statutory (ACCA) or guideline (career offender)

enhancement for violent offenses continues to unfold; however, none of these interesting

interpretations are of any consequence to Petitioner because his sentence was not enhanced

under the career offender guideline provision covering violent crimes. § 4B1.2(a). Petitioner

was sentenced as a career offender under § 4B1.1 because he had two (actually three) prior

controlled substance convictions. (Doc. 15 at ID 49, 51; Doc. 34 at ID 152.) 

Where, as here, Petitioner’s sentence was enhanced under the sentencing guidelines

based on prior controlled substance convictions, Johnson, Beckles, Mathis, and Ritchey simply

do not apply. I therefore suggest that Petitioner’s motion (Doc. 29) be denied and that

Respondent’s motion to dismiss (Doc. 34) be granted.

III. REVIEW

Rule 72(b)(2) of the Federal Rules of Civil Procedure states that “[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 party may 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

4

1:15-cr-20384-TLL-PTM Doc # 37 Filed 12/08/16 Pg 4 of 5 Pg ID 161
of any further right of appeal. Thomas v. Arn, 474 U.S. 140, 155; Howard v. Sec’y of Health &

Human Servs., 932 F.2d 505, 508 (6th Cir. 1991); United States v. Walters, 638 F.2d 947, 950

(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). According to E.D. Mich.

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

Any objections must be labeled as “Objection No. 1,” “Objection No. 2,” etc. Any

objection 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 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: December 8, 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 Stephon Deleon Pickett #51099039 at McKean Federal

Correctional Institution, Inmate Mail/Parcels, P.O. Box 8000, Bradford, PA 16701.

Date: December 8, 2016 By s/Kristen Castaneda 

 Case Manager

5

1:15-cr-20384-TLL-PTM Doc # 37 Filed 12/08/16 Pg 5 of 5 Pg ID 162