UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

NORTHERN DIVISION 

UNITED STATES OF AMERICA, 

 Plaintiff, 

 Case Number: 15-cr-20384 

 v. 

 Honorable Thomas L. Ludington 

STEPHON DELEON PICKETT, 

 Defendant. 

_______________________________________/ 

ORDER OVERRULING OBJECTIONS, ADOPTING REPORT AND 

RECOMMENDATION, DENYING PETITIONER’S MOTION TO VACATE 

SENTENCE, AND DENYING GOVERNMENT’S MOTION TO DISMISS AS MOOT 

On September 2, 2015, Defendant Stephon Deleon Pickett pled guilty to one count of 

distributing cocaine base in violation of 21 U.S.C. § 841(a)(1). ECF Nos. 14. On December 10, 

2015 Defendant Pickett was sentenced to 151 months of imprisonment, 36 months of supervised 

release, and a special assessment of $100. His sentence was based in part upon his designation as 

a career offender. Judgment was entered on December 15, 2015. ECF No. 20. 

Defendant filed a notice of appeal on December 17, 2015. ECF Nos. 21, 22. While his 

appeal was pending, on May 2, 2016 Defendant Pickett filed a motion to vacate his sentence 

pursuant to 28 U.S.C. § 2255, arguing that his designations a career offender was rendered 

unconstitutional by the Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 

(2015) (striking down the residual clause of the Armed Career Criminal Act as unconstitutionally 

vague). See ECF No. 29. That motion was referred to Magistrate Judge Patricia T. Morris. See 

ECF No. 32. On May 31, 2016 the Government moved to dismiss Pickett’s petition on the 

grounds that his appeal was still pending. See ECF No. 34. Before the court decided that 

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motion, the Sixth Circuit dismissed Defendant’s appeal based on an appellate-waiver provision 

contained in his plea agreement. See ECF No. 36. 

On December 8, 2016 the magistrate judge issued her report, recommending that 

Defendant Pickett’s motion to vacate be denied. See ECF No. 37. The magistrate judge reasoned 

that Johnson was inapplicable to Defendant’s conviction and sentence because Pickett’s career 

offender status was based upon two prior drug convictions. Id. Picket filed objections on 

January 4, 2017. See ECF No. 38. 

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). 

Defendant Pickett first objects to the Magistrate Judge’s finding that his career offender 

status is based upon prior drug convictions. This objection is without merit, as Defendant Picket 

had three qualifying prior controlled substance offenses under U.S.S.G. § 4B1.2 at the time of his 

sentencing. The Supreme Court’s decision in Johnson therefore does not implicate his 

designation as a career offender under U.S.S.G. § 4B1.1. 

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In the alternative, Defendant argues that he should be granted leave to amend his motion 

to vacate to add a claim of ineffective assistance of counsel. He argues that his appellate counsel 

informed him that career offender status was based upon a prior felony assault. Defendant’s 

proposed amendment would be futile. To show he was denied the effective assistance of counsel 

under federal constitutional standards, a petitioner must satisfy a two prong test. First, he must 

demonstrate that, considering all of the circumstances, counsel’s performance was so deficient 

that the attorney was not functioning as the “counsel” guaranteed by the Sixth Amendment. 

Strickland v. Washington, 466 U.S. 668, 687 (1984). Second, a petitioner must show that such 

performance resulted in prejudice. Id. To demonstrate prejudice, a petitioner must show that 

“there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the 

proceeding would have been different.” Id. at 694. Because Petitioner has not demonstrated that 

he was prejudiced by his appellate counsel’s alleged advice, or that he would have obtained a 

more favorable outcome but for his counsel’s alleged advice, his objections will be overruled. 

II. 

 Accordingly, it is ORDERED that Defendant Pickett’s objections, ECF No. 38, are 

OVERRULED. 

It is further ORDERED that the magistrate judge’s report and recommendation, ECF No. 

37, is ADOPTED. 

It is further ORDERED that the Government’s motion to dismiss, ECF No. 34, is 

DENIED as moot.

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 To the extent the magistrate judge recommended granting the Government’s motion to dismiss the report and 

recommendation is rejected. 

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It is further ORDERED that Defendant Pickett’s motion to vacate, ECF No. 29, is 

DISMISSED with prejudice. 

It is further ORDERED that a certificate of appealability is DENIED. 

 It is further ORDERED that leave to proceed in forma pauperis on appeal is DENIED. 

Dated: February 3, 2017 s/Thomas L. Ludington 

 THOMAS L. LUDINGTON 

 United States District Judge 

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 February 3, 2017. 

 s/Kelly Winslow for 

 MICHAEL A. SIAN, Case Manager 

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