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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

MARTELL DAVONE WATKINS, 

 Movant, 

v. 

UNITED STATES OF AMERICA, 

 Respondent. 

Criminal Case No. 15-20333 

Civil Case No. 17-12765 

SENIOR U.S. DISTRICT JUDGE 

ARTHUR J. TARNOW

 / 

ORDER DENYING MOVANT’S MOTION TO VACATE, SET ASIDE, OR CORRECT 

SENTENCE [61]; DENYING MOVANT’S MOTION FOR JUDGMENT [67]; DENYING 

CERTIFICATE OF APPEALABILITY 

On June 9, 2015, Movant Martell Davone Watkins was charged via 

indictment [Dkt. 10] with two counts of Distribution of Controlled Substance, in 

violation of 21 U.S.C. § 841(a)(1), Felon in Possession of a Firearm – Armed 

Career Criminal, in violation of 18 U.S.C. §§ 922(g)(1), 924(e), and Possession of 

Firearms in Furtherance of a Drug Trafficking Crime, in violation of 18 U.S.C. § 

924(c). Mr. Watkins entered a guilty plea to Count One of the indictment, 

distribution of heroin, on October 13, 2016. On January 31, 2017, the Court 

sentenced Mr. Watkins to 120 months’ imprisonment and a three-year term of 

supervised release. Judgment [59] was entered on February 17, 2017. 
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Mr. Watkins filed a Motion to Vacate Sentence under 22 U.S.C. § 2255 [61] 

on August 22, 2017. The Government responded to Mr. Watkins’ motion on 

October 17, 2017 [66]. 

10 days later, Mr. Watkins filed a Motion for Judgment [67], on the grounds 

that the Government’s response to the § 2255 motion was 15 days late. The 

Government responded the same day [68]. 

For the reasons explained in depth below, Mr. Watkins’ Motion to Vacate 

Sentence under 22 U.S.C. § 2255 [61] and Motion for Judgment [67] are 

DENIED. Mr. Watkins is denied a certificate of appealability. 

LEGAL STANDARD

To succeed on a motion to vacate, set aside, or correct sentence, a petitioner 

must allege: “(1) an error of constitutional magnitude; (2) a sentence imposed 

outside the statutory limits; or (3) an error of fact or law that was so fundamental 

as to render the entire proceeding invalid.” Pough v. United States, 442 F.3d 959, 

964 (6th Cir. 2006) (quoting Mallett v. United States, 334 F.3d 491, 496-97 (6th 

Cir. 2003)). “To prevail on a claim of constitutional error, a prisoner ‘must 

demonstrate the existence of an error of constitutional magnitude which had 

asubstantial and injurious effect’ on the proceedings.” Fairley v. United States, No. 

12-CR-20786, 2017 WL 2535462, at *1 (E.D. Mich. June 12, 2017) (quoting 

Hamblen v. United States, 591 F.3d 471, 473 (6th Cir. 2009)). 
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ANALYSIS

Mr. Watkins argues that, in light of Mathis v. United States, 136 S. Ct. 2243 

(2016) and United States v. Hinkle, 832 F.3d 569 (5th Cir. 2016), the Court erred 

in classifying him as a career offender under the Guidelines. Specifically, Mr. 

Watkins claims that his previous conviction under M.C.L. § 333.7401 for delivery 

of a controlled substance is an improper career offender predicate. He submits that 

§ 333.7401 is indivisible and “broader than the [ ] Guidelines definition for a 

controlled substance.” (Dkt. 69 at 8). He further contends that § 333.7401 is 

“ambiguous and uncertain” and that pursuant to the rule of lenity, the ambiguity 

should be resolved in his favor. Id. at 14. 

Mr. Watkins also raises an ineffective assistance of counsel claim. He 

maintains that had trial counsel properly researched the issue, he would have 

discovered that Mr. Watkins’ prior conviction for cocaine delivery could not be 

used to establish Mr. Watkins are a career offender. 

I. Mr. Watkins’ Career Offender Status 

The Guidelines provide for an increased sentence if the defendant is a career 

offender. U.S.S.G. § 4B1.1(a) states: 

A defendant is a career offender if (1) the defendant was at least eighteen 

years old at the time the defendant committed the instant offense of 

conviction; (2) the instant offense of conviction is a felony that is either a 

crime of a violence or a controlled substance offense; and (3) the defendant 

has at least two prior felony convictions of either a crime of violence or a 

controlled substance offense. 
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A “controlled substance offense” is “an offense . . . that prohibits the 

manufacture, import, export, distribution, or dispensing of a controlled substance 

(or a counterfeit substance) or the possession of a controlled substance (or a 

counterfeit substance) with intent to manufacture, import, export, distribute, or 

dispense.” U.S.S.G. § 4B1.2(b). 

Mr. Watkins has at least three prior convictions for serious drug offenses. 

On April 20, 2005, July 6, 2005, and November 30, 2006, Mr. Watkins was 

convicted of violating M.C.L. § 333.7401 for delivery of less than 50 grams of a 

controlled substance (cocaine, heroin, or other narcotic). See Dkt. 52. 

In United States v. Tibbs, 685 F. App’x 456 (6th Cir. Apr. 10, 2017), the 

petitioner challenged the use of his prior conviction for delivery of a controlled 

substance as a career offender predicate. He, like Mr. Watkins, claimed that 

M.C.L. § 333.7401 was indivisible under Mathis and Hinkle, and that the statute 

was “overbroad in relation to the Guidelines definition of a controlled substance.” 

Id. at 462. 

The Sixth Circuit rejected Tibbs’ arguments on a number of grounds. It 

noted first that Mathis and Hinkle applied established Iowa and Texas law, 

respectively, and that “Tibbs cite[d] no Michigan law declaring that the relevant 

portions of M.C.L. § 333.7401 provide alternative means rather than elements.” Id.

Additionally, Hinkle did not address “whether the entire statute was indivisible 
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such that manufacture, delivery, and possession with intent to deliver stated 

alternative means of satisfying a single element.” Id. at 463 (internal citation 

omitted). Finally, the court said, M.C.L. § 333.7401 “set forth separate offenses 

and not alternative means of committing the same offense.” Id. 

Mr. Watkins asserts that the Assistant U.S. Attorney is attempting to mislead 

the Court and that Tibbs is distinguishable from his case. He does not provide any 

explanation or support for these arguments. 

Mr. Watkins’ position with respect to his career offender status and the 

divisibility of § 333.7401 is foreclosed by Tibbs and United States v. House, 872 

F.3d 748, 753 (6th Cir. 2017), another case decided several months after Tibbs. 

There, the Sixth Circuit rejected the petitioner’s challenge to his career offender 

designation, and again concluded that M.C.L. § 333.7401 is divisible. Id. Tibbs and 

House clearly preclude Mr. Watkins’ arguments. 

Mr. Watkins’ apparent claim that § 4B1.2 does not encompass “delivery” 

under § 333.7401 is similarly unavailing. In United States v. Solomon, 592 Fed. 

Appx. 359, 361 (6th Cir. 2014), the court held that the petitioner’s prior conviction 

for delivery of marijuana 

was for a controlled substance offense within the meaning of § 4B1.2(b) of 

the Guidelines: it was for possession of a controlled substance with intent to 

“distribute,” because “deliver” plainly falls within the meaning of 

“distribute” in § 4B1.2(b), and it was punishable by imprisonment for a term 

exceeding one year. 
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Finally, Mr. Watkins’ rule of lenity argument is meritless, as § 333.7401 is 

not ambiguous or uncertain. 

II. Ineffective Assistance of Counsel 

To establish ineffective assistance of counsel, Mr. Watkins must 

demonstrate that defense counsel: 1) rendered deficient performance; and 2) 

prejudiced Mr. Watkins’ defense so as to render the outcome of the proceedings 

unreliable. See Strickland v. Washington, 466 U.S. 668, 687 (1984). Proving 

deficient performance requires Mr. Watkins to show that his attorney’s errors were 

“so serious that counsel was not functioning as the ‘counsel’ guaranteed [him] by 

the Sixth Amendment.” Id. Courts generally “indulge a strong presumption that 

counsel’s conduct falls within the wide range of reasonable professional 

assistance.” Id. at 689. 

Mr. Watkins argues that trial counsel was ineffective because he failed to 

realize that Mr. Watkins’ prior conviction was an improper career offender 

predicate. As discussed above, however, Mr. Watkins was properly classified as a 

career offender. Mr. Watkins provides no other specific facts or information as to 

how his counsel rendered ineffective assistance. 

CONCLUSION

 For the reasons stated above, 
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IT IS ORDERED that Mr. Watkins’ Motion to Vacate Sentence under 22 

U.S.C. § 2255 [61] is DENIED. 

IT IS FURTHER ORDERED that Mr. Watkins’ Motion for Judgment [67] 

is DENIED, as an untimely response to a § 2255 motion is not grounds for default 

judgment. See Carpenter v. United States, 2013 WL 424479, at *3 (W.D. Mich. 

Feb. 1, 2013). 

IT IS FURTHER ORDERED that Mr. Watkins is DENIED a certificate of 

appealability. 

SO ORDERED. 

s/Arthur J. Tarnow 

 Arthur J. Tarnow 

Dated: April 24, 2018 Senior United States District Judge