UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DAMEON RUSSELL,

Criminal Case Number 00-20016

Petitioner, Civil Case Number 04-10171

v. Honorable David M. Lawson

UNITED STATES OF AMERICA,

Respondent.

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OPINION AND ORDER DENYING MOTION TO VACATE SENTENCE

The petitioner, Dameon Russell, was convicted of violating the Controlled Substances Act

after pleading guilty and was sentenced to 121 months in prison. The plea was made under an

agreement that provided in part that the sentence would not exceed the midpoint of the applicable

Sentencing Guideline range as determined by the Court, and the petitioner was sentenced in

accordance with that agreement. Two years after the court of appeals affirmed his conviction and

sentence, the petitioner filed a motion under 28 U.S.C. § 2255 to vacate his sentence. The

government has filed an answer in opposition. The petitioner contends that his sentence must be

vacated because it contravenes the rule announced in Blakely v. Washington, 542 U.S. 296 (2004).

The Court finds that the motion must be denied because it is untimely and lacks merit.

I.

Dameon Russell was indicted on March 22, 2000 and charged with possessing fifty grams

or more of cocaine base with the intent to distribute it. On May 23, 2000, an information was filed

under 21 U.S.C. § 851 alleging that the petitioner previously had been convicted of two felony drug

offenses. A first superseding indictment was returned on June 14, 2000 adding a second count of

distribution of an unspecified quantity of cocaine base, and on August 16, 2000, a second
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superseding indictment was returned alleging the same two substantive offenses but adding, in both

counts, an allegation that the offenses were committed following two prior felony drug convictions.

David Koelzer of the Federal Defender’s Office was appointed to represent the petitioner. 

The charge in count one of the indictment, which involved more than 50 grams of cocaine

base, when coupled with the petitioner’s two prior felony drug convictions, exposed the petitioner

to mandatory life in prison. 21 U.S.C. § 841(b)(1)(A). Attorney Koelzer successfully negotiated

a plea agreement that called for the petitioner to plead guilty to count two of the indictment, which

carried a maximum penalty of 30 years in light of the supplemental information under section 851.

21 U.S.C. § 841(b)(1)(C). The petitioner stipulated that he was accountable for 50 to 150 grams of

cocaine base, also known as “crack,” and his base offense level under the United States Sentencing

Guidelines would be 32. The plea agreement limited the petitioner’s sentence to no higher than the

midpoint of the Sentencing Guidelines range to be determined by the Court. The petitioner entered

his guilty plea on February 6, 2001.

A presentence report (PSR) was prepared and the Court held a sentencing hearing on July

30, 2001. Neither party objected to the PSR, which stated that the petitioner was accountable for

83.24 grams of crack. The Court determined that the Sentencing Guidelines range was 121 to 151

months in prison. The Court sentenced the petitioner to the bottom of the range at 121 months, plus

six years of supervised release. 

The petitioner filed a direct appeal of his conviction and sentence raising the effectiveness

of his trial attorney for not advancing several non-prohibited factors in support of a motion for

downward departure. The court of appeals affirmed on October 21, 2002, finding that the record

was insufficient to assess whether counsel’s action fell within the scope of sound strategy, especially
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given the sentence at the low end of the range and the petitioner’s on-the-record expression of

satisfaction with Mr. Koelzer’s representation. The petitioner did not apply for certiorari.

On July 19, 2004, the petitioner filed a motion to vacate his sentence under 28 U.S.C. § 2255.

He did not raise an ineffective assistance of counsel claim in his initial motion, although he did raise

one in his reply brief. He states that a jury never determined the amount of drugs involved in the

case, nor was the drug quantity alleged in the indictment, and therefore his rights to due process and

a jury trial guaranteed by the Fifth and Sixth Amendments were violated. He also claims that his

attorney was ineffective for failing to argue the deficiencies in the indictment and proofs in the trial

court and on appeal. The government insists that the motion was filed out of time, and it points to

several flaws in the petitioner’s arguments on the merits.

II.

A federal prisoner challenging his sentence under section 2255 must show that the sentence

“was imposed in violation of the Constitution or laws of the United States,” the sentencing court

lacked jurisdiction, the sentence exceed the maximum penalty allowed by law, or “is otherwise

subject to collateral attack.” 28 U.S.C. § 2255. However, section 2255 provides a one-year statute

of limitations, which is measured from the latest of:

(1) the date on which the judgment of conviction becomes final;

(2) the date on which the impediment to making a motion created by governmental

action in violation of the Constitution or laws of the United States is removed, if the

movant was prevented from making a motion by such governmental action;

(3) the date on which the right asserted was initially recognized by the Supreme

Court, if that right has been newly recognized by the Supreme Court and made

retroactively applicable to cases on collateral review; or

(4) the date on which the facts supporting the claim or claims presented could have

been discovered through the exercise of due diligence.
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28 U.S.C. § 2255 para. 6. Because the petitioner has not alleged a governmental impediment to

filing the claim he now seeks to assert, a claim newly recognized by the Supreme Court made

retroactive to final convictions, or newly discovered facts, subparagraph 1 applies to his case.

A federal criminal judgment becomes final for the purpose of section 2255 at the conclusion

of direct review. United States v. Cottage, 307 F.3d 494, 499 (6th Cir. 2002). “[F]or federal

criminal defendants who do not file a petition for certiorari with [the Supreme] Court on direct

review, § 2255’s one-year limitation period starts to run when the time for seeking such review

expires.” Clay v. United States, 537 U.S. 522, 532 (2003). The Sixth Circuit affirmed the

petitioner’s conviction on October 21, 2002. His conviction became final in this case ninety days

later on January 20, 2003. See Sanchez-Castellano, 358 F.3d 424, 426 (6th Cir. 2004). The

limitations period, then, expired one year later, on January 20, 2004. The petitioner’s present motion

was not filed until October 27, 2004. Therefore, it is untimely.

The petitioner is not entitled to equitable tolling. A court must consider five factors in

determining whether equitable tolling is appropriate in a habeas case:

(1) the petitioner’s lack of notice of the filing requirement; (2) the petitioner’s lack

of constructive knowledge of the filing requirement; (3) diligence in pursuing one’s

rights; (4) absence of prejudice to the respondent; and (5) the petitioner’s

reasonableness in remaining ignorant of the legal requirement for filing his claim.

Dunlap v. United States, 250 F.3d 1001, 1008 (6th Cir. 2001). The petitioner has presented no

evidence of a lack of constructive knowledge of the filing requirement and has not shown that he

was reasonable in remaining ignorant of the legal requirement for filing his claim. The statute of

limitations thus forecloses review of his claims.
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Moreover, his claims relating to the validity of his sentence in light of the allegations in the

second superseding indictment and the proofs were never raised on direct appeal, although they

could have been. A claim that could have been raised on direct appeal generally is not reviewable

in a section 2255 motion. Bousley v. United States, 523 U.S. 614, 621 (1998) (holding that “even

the voluntariness and intelligence of a guilty plea can be attacked on collateral review only if first

challenged on direct review”); Regalado v. United States, 334 F.3d 520, 528 (6th Cir. 2003)

(reaffirming that “[s]ection 2255 is not a substitute for a direct appeal, and thus a defendant cannot

use it to circumvent the direct appeal process”). In United States v. Frady, 456 U.S. 152 (1982), the

Supreme Court observed:

Once the defendant’s chance to appeal has been waived or exhausted, however, we

are entitled to presume he stands fairly and finally convicted, especially when, as

here, he already has had a fair opportunity to present his federal claims in a federal

forum. Our trial and appellate procedures are not so unreliable that we may not

afford their completed operation any binding effect beyond the next in a series of

endless postconviction collateral attacks. To the contrary, a final judgment

commands respect. For this reason, we have long and consistently affirmed that a

collateral challenge may not do service for an appeal.

Id. at 164-65. Accord Elzy v. United States, 205 F.3d 882, 884 (6th Cir. 2000) (stating that “respect

for the finality of judgments demands that collateral attack generally not be allowed to do service

for an appeal”). Where a defendant fails to assert claims on direct appeal and attempts to raise them

in a § 2255 motion, “he also must show either that (1) he had good cause for his failure to raise such

arguments and he would suffer prejudice if unable to proceed, or (2) he is actually innocent.”

Regalado, 334 F.3d at 528.

The petitioner has not shown cause for his failure to raise the Blakely issue on direct appeal.

Nor does the record demonstrate prejudice. The rule of Blakely was applied to the United States

Sentencing Guidelines by United States v. Booker, 543 U.S. 220 (2005). Blakely was decided on
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June 24, 2004, over a year after the petitioner’s conviction in this case became final. The Sixth

Circuit recently revisited the question whether Blakely or Booker are retroactive, and concluded that

they are not:

Despite the fact that Petitioner’s appeal from his resentencing became final before

the Supreme Court decided Blakely, let alone Booker, Petitioner argues that his

sentence should be vacated so he can be resentenced under those precedents.

Petitioner does not dispute that this Court has held that Booker does not apply

retroactively to § 2255 motions. Humphress v. United States, 398 F.3d 855, 860 (6th

Cir.), cert. denied, --- U.S. ----, 126 S. Ct. 199 (2005). Moreover, Humphress makes

clear that Booker announced a rule of criminal procedure, not a substantive rule. Id.

at 860 n. 1 (“Without question, this ... is a procedural [rule].” (citing Schriro v.

Summerlin, 542 U.S. 348, 354 (2004))).

Lang v. United States, 474 F.3d 348, 353 (6th Cir. 2007).

Nor would the petitioner be successful on his claim that Mr. Koelzer was constitutionally

ineffective for failing to anticipate the Blakely and Booker decisions and preserve the record

accordingly. The two-prong test set forth in Strickland v. Washington, 466 U.S. 668 (1984),

governs claims of ineffective assistance of counsel. Towns v. Smith, 395 F.3d 251, 258 (6th Cir.

2005). To show a violation of the Sixth Amendment right to effective assistance of counsel, a

petitioner must establish that her attorney’s performance was deficient and that the deficient

performance prejudiced the defense. Strickland, 466 U.S. at 687. An attorney’s performance is

deficient if “counsel’s representation fell below an objective standard of reasonableness.” Id. at 688.

The defendant must show “that counsel made errors so serious that counsel was not functioning as

the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687. “Judicial scrutiny of

counsel’s performance must be highly deferential.” Id. at 689. The Court has “declined to articulate

specific guidelines for appropriate attorney conduct and instead [has] emphasized that the proper

measure of attorney performance remains simply reasonableness under prevailing professional
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norms.” Wiggins v. Smith, 539 U.S. 510, 521 (2003) (quoting Strickland, 466 U.S. at 688) (internal

quotes omitted). 

An attorney’s deficient performance is prejudicial if “counsel’s errors were so serious as to

deprive the defendant of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687.

The petitioner must show “a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Id. at 694. Unless the petitioner demonstrates

both deficient performance and prejudice, “it cannot be said that the conviction [or sentence] . . .

resulted from a breakdown in the adversary process that renders the result unreliable.” Id. at 687.

The Strickland framework applies to claims of ineffective assistance of counsel arising from

a guilty plea. Hill v. Lockhart, 474 U.S. 52, 58 (1985); Carter v. Collins, 918 F.2d 1198, 1200 (5th

Cir. 1990). The first prong of the test remains the same. Ibid. However, the prejudice requirement

focuses on whether counsel’s constitutionally ineffective performance affected the outcome of the

plea process. Hill, 474 U.S. at 59. In other words, the defendant must show “that there is a

reasonable probability that, but for counsel’s errors, [s]he would not have pleaded [nolo contendere]

and would have insisted on going to trial.” Ibid.; Carter, 918 F.2d at 1200; see also Smith v. United

States, 348 F.3d 545, 551-52 (6th Cir. 2003).

In this case, defense counsel could not make a colorable argument that the petitioner was

exposed to a penalty based on judge-found facts alone, thereby bringing this case within the rule of

Apprendi v. New Jersey, 530 U.S. 466 (2000), or the yet-to-be-decided Blakely or Booker. To do

so, he would have had to argue against the facts in the record, since the petitioner actually stipulated

that he was accountable for the type and quantity of drugs that brought him within base level 32
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under the Sentencing Guidelines. The petitioner signed a plea agreement attesting to those facts,

he admitted those facts at the plea hearing, the presentence report recited those facts, and at the

sentencing hearing the parties agreed that the report was accurate.

The petitioner has not shown cause for his failure to raise these issues on direct appeal. Nor

does the record demonstrate prejudice. As noted earlier, the petitioner stipulated to the base offense

level and the resulting Sentencing Guidelines range, and he was sentenced at the bottom of that

range based on the agreed and admitted facts.

III.

The Court finds that the motion was filed after the period of limitation, the petitioner has not

asserted a valid excuse for his failure to raise his issues on direct appeal, he cannot show prejudice

because there is no merit to the grounds for relief stated in the petitioner’s motion, and he cannot

demonstrate either deficient performance or prejudice caused by his attorney.

Accordingly, it is ORDERED that the petitioner’s motion to vacate his sentence [dkt # 53]

is DENIED.

s/David M. Lawson 

DAVID M. LAWSON

United States District Judge

Dated: June 28, 2007

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 June 28, 2007.

s/Felicia M. Moses 

FELICIA M. MOSES