UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

NORTHERN DIVISION 

UNITED STATES OF AMERICA, 

 Plaintiff - Respondent, Case No. 15-cr-20314 

v Honorable Thomas L. Ludington 

SAMUEL LEE CURNEY, 

 

Defendant - Petitioner. 

__________________________________________/ 

ORDER OVERRULING OBJECTIONS, ADOPTING REPORT AND 

RECOMMENDATION, DENYING MOTION TO VACATE SENTENCE, DENYING 

PETITIONER’S ADDITIONAL PENDING MOTIONS, DENYING RESPONDENT’S 

MOTION TO DISMISS AS MOOT, DENYING A CERTIFICATE OF APPEALABILITY 

AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS 

 On May 27, 2015 an indictment was issued charging Petitioner Samuel Lee Curney with 

one count of distribution of heroin in violation of 21 U.S.C. § 841(a)(1). Curney pled guilty to 

the charge, and was sentenced to 140 months of imprisonment on November 5, 2015. His 

sentence was based in part upon a career offender enhancement pursuant to USSG § 4B1.1. 

Judgment was entered in November 12, 2015. See ECF No. 19. 

On October 31, 2016 Petitioner Curney filed a motion purportedly seeking relief pursuant 

to Federal Rule of Criminal Procedure 52(b). See ECF No. 23. With Curney’s consent, that 

motion was construed as a motion to vacate his sentence pursuant to 28 U.S.C. § 2255. See ECF 

Nos. 26-28. The matter was then referred to Magistrate Judge Patricia T. Morris, along with 

Curney’s subsequent requests for relief. See ECF Nos. 24, 30, 31, 35, 40. 

On April 3, 2017 the magistrate judge issued her report, recommending that Curney’s 

motion to vacate his sentence be denied. See ECF No. 40. She also recommended that Curney’s 

additional requests for relief be denied. Id. Curney filed objections on April 25, 2017, which will 
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be accepted as filed. See ECF No. 41. For the reasons stated below, Curney’s objections will be 

overruled and the report and recommendation will be adopted. 

I. 

 Pursuant to Federal Rule of Civil Procedure 72, a party may object to and seek review of 

a magistrate judge’s report and recommendation. See Fed. R. Civ. P. 72(b)(2). Objections must 

be stated with specificity. Thomas v. Arn, 474 U.S. 140, 151 (1985) (citation omitted). If 

objections are made, “[t]he district judge must determine de novo any part of the magistrate 

judge’s disposition that has been properly objected to.” Fed. R. Civ. P. 72(b)(3). De novo review 

requires at least a review of the evidence before the magistrate judge; the Court may not act 

solely on the basis of a magistrate judge’s report and recommendation. See Hill v. Duriron Co., 

656 F.2d 1208, 1215 (6th Cir. 1981). After reviewing the evidence, the Court is free to accept, 

reject, or modify the findings or recommendations of the magistrate judge. See Lardie v. Birkett, 

221 F. Supp. 2d 806, 807 (E.D. Mich. 2002). 

A. 

 Petitioner Curney first objects to the magistrate judge’s finding that his counsel was not 

ineffective for failing to challenge the career offender enhancement. There is no dispute that 

Curney had one qualifying controlled substance offense based upon a 2009 conviction for 

delivering cocaine. Curney argues, however, that his 2008 conviction under Michigan Compiled 

Law 333.7401(1)(a)(iv) for possessing with attempt to deliver a controlled substance is not a 

qualifying predicate offense because it involved an attempt. Michigan Compiled Law 333.7401 

holds that a person “shall not manufacture, create, deliver, or possess with intent to manufacture, 

create, or deliver, a controlled substance ....” Id. (emphasis added). Where a person commits an 

offense involving less than 50 grams of a narcotic drug classified in schedule 1 or 2, that person 
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“is guilty of a felony punishable by imprisonment for not more than 20 years or a fine of not 

more than $25,000.00, or both.” Mich. Comp. Laws 333.7401(2)(a)(iv). 

As explained by the magistrate judge, Curney’s argument is without merit. Under § 

4B1.1, a defendant is a career offender if “the defendant has at least two prior felony convictions 

of either a crime of violence or a controlled substance offense.” Id. The term “controlled 

substance offense” is defined as “an offense under federal or state law, punishable by a term of 

imprisonment for a term exceeding one year, that prohibits the manufacture, import export, 

distribution of a controlled substance ... or the possession of a controlled substance (or a 

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

USSG § 4B1.2(b) (emphasis added). His attempted delivery conviction under Michigan 

Compiled Law 333.7401(a)(iv) is therefore a qualifying predicate offense under the sentencing 

guidelines. See Hopkins v. United States, No. 1:14-CV-401, 2017 WL 1544811, at *3 (W.D. 

Mich. Apr. 28, 2017). 

Moreover, in addition to his qualifying controlled substance offenses, at the time of his 

sentencing Curney had two qualifying convictions for crimes of violence. Specifically, in 2012 

and again in 2013 Curney was convicted of assaulting, restricting, or obstructing a police officer. 

These are qualifying crimes of violence under the residual clause of § 4B1.1(a)(2). See Beckles v. 

United States, ---- U.S. ----, 2017 WL 855781, at *3 (Mar. 6, 2017) (holding that the sentencing 

guidelines are not subject to void for vagueness challenges under the Fifth Amendment Due 

Process clause). Because Curney had four qualifying predicate offenses, his counsel was not 

ineffective for failing to challenge the career offender enhancement. Curney’s first objection 

will be overruled. 

B. 
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 Petitioner Curney next objects to the magistrate judge’s determination that the Supreme 

Court’s decision in Mathis v. United States, 136 S. Ct. 2243, 2251, 195 L. Ed. 2d 604 (2016), 

and the Fifth Circuit’s decision in United States v. Hinkle, 832 F.3d 569 (5th Cir. 2016), do not 

apply to his case. This objection is without merit. In an unpublished case, the Sixth Circuit 

recently held that M.C.L. 333.7401(2)(a) is not subject to challenges under Mathis and Hinkle

because the statute sets forth separate offenses, not alternative means for committing the same 

offense. United States v. Tibbs, No. 15-1060, 2017 WL 1314933, at *5 (6th Cir. Apr. 10, 2017). 

Moreover, even if Curney was correct that his 2008 controlled substance offense was not a 

qualifying offense, he would not be entitled to any relief because his criminal history includes 

three other qualifying offenses. The career offender enhancement would thus still be appropriate 

under USSG § 4B1.1. 

C. 

 In his final objection, Petitioner Curney argues that the magistrate judge erred in 

recommending denial of his motion to amend his petition, through which he sought to bring a 

claim of prosecutorial misconduct. Without citation, Curney argues that he should have been 

allowed to avoid federal prosecution by pleading guilty to state charges carrying a guideline 

range of 7-36 months under the Project Safe Neighborhood initiative. He does not allege that he 

was offered any such plea deal, much less that the federal prosecutor was involved in any state 

court plea negotiations. United States v. McConer, 530 F.3d 484, 494 (6th Cir. 2008) (holding 

that a federal prosecutor is not liable for a state’s improper handling of a defendant’s plea 

negotiations where the prosecutor was not involved in the alleged violation). Curney also has not 

alleged that the attorney representing him in the hypothetical plea negotiations was ineffective. 

See United States v. Morris, 470 F.3d 596, 600 (6th Cir. 2006) (holding that a district court may 
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allow a defendant to reconsider a state plea offer where the prosecutor was involved in the plea 

negotiations and the defendant was not provided effective assistance of counsel). Finally, 

Curney does not provide any evidence that his case implicated the Project Safe Neighborhood 

initiative, which deals primarily with gun violence (Curney was convicted of distributing heroin). 

It is well-settled that the Double Jeopardy Clause of the Fifth Amendment does not 

prevent different sovereigns, i.e. the federal government and a state government, from separately 

prosecuting the same individual, “even if both are criminal suits for the same offense.” United 

States v. Louisville Edible Oil Prods., Inc., 926 F.2d 584, 587 (6th Cir. 1991) (internal citations 

omitted). Because Curney violated a federal statute, he had no constitutional right to avoid a 

federal prosecution. The federal prosecutor had no constitutional obligation to offer Curney a 

global plea deal that would have resolved both his state and federal prosecutions. Even if 

Curney is correct that some notice practice or guideline of the Project Safe Neighborhood 

program was violated, he has not shown how any such violation amounts to an independent 

constitutional violation by the federal prosecutor. McConer, 530 F.3d at 494. Curney’s 

arguments amount to a disagreement with how the prosecutor exercised her prosecutorial 

discretion. This is insufficient to state a claim for habeas corpus relief under § 2255. Curney’s 

objections will therefore be overruled. 

II. 

 Before Petitioner may appeal the Court’s decision, a certificate of appealability must 

issue. See 28 U.S.C. § 2253(c)(1)(a); Fed. R. App. P. 22(b). A certificate of appealability may 

issue “only if the applicant has made a substantial showing of the denial of a constitutional 

right.” 28 U.S.C. § 2253(c)(2). When a court denies relief on the merits, the substantial showing 

threshold is met if the petitioner demonstrates that reasonable jurists would find the court’s 
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assessment of the constitutional claim debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 

484-85 (2000). When a court denies relief on procedural grounds without addressing the merits, 

a certificate of appealability should issue if it is shown that jurists of reason would find it 

debatable whether the petitioner states a valid claim of the denial of a constitutional right and 

that jurists of reason would find it debatable whether the court was correct in its procedural 

ruling. Id. 

 Petitioner has failed to make a substantial showing of the denial of a constitutional right. 

Accordingly, a certificate of appealability is not warranted in this case. Petitioner also will not 

be granted leave to proceed in forma pauperis on appeal, as any appeal would be frivolous. See

Fed. R. App. P. 24(a). 

III. 

 Accordingly, it is ORDERED that Petitioner Curney’s objections, ECF No. 41, are 

OVERRULED. 

 It is further ORDERED that the report and recommendation, ECF No. 40, is 

ADOPTED. 

 It is further ORDERED that Petitioner’s motion to vacate his sentence, filed as a motion 

under Federal Rule of Criminal Procedure 52(b), ECF No. 23, is DENIED. 

 It is further ORDERED that Petitioner’s motion to supplement, ECF No. 24, motion for 

issuance of a subpoena, ECF No. 30, and motion for leave to amend, ECF No. 31, are DENIED. 

 It is further ORDERED that the Government’s motion to dismiss, ECF NO. 35, is 

DENIED as moot. 

It is further ORDERED that a certificate of appealability is DENIED. 
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It is further ORDERED that leave to proceed in forma pauperis on appeal is DENIED. 

s/Thomas L. Ludington 

 THOMAS L. LUDINGTON 

 United States District Judge 

Dated: May 19, 2017 

 

PROOF OF SERVICE 

The undersigned certifies that a copy of the foregoing order was served 

upon each attorney or party of record herein by electronic means or first 

class U.S. mail on May 19, 2017. 

 s/Kelly Winslow 

 KELLY WINSLOW, Case Manager