1

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

UNITED STATES OF AMERICA, 

 Plaintiff, Case No. 06-cr-20465 

v. Honorable Nancy G. Edmunds 

JOSEPH WHITING, D-20, 

 

 Defendant. 

_______________________________/ 

OPINION AND ORDER DENYING 28 U.S.C. § 2255 MOTION TO VACATE, SET 

ASIDE, OR CORRECT SENTENCE [2827]; DENYING MOTIONS TO AMEND § 2255 

MOTION AND MOTIONS FOR JOINDER [2837, 2856, 2878, 2879, 2965, 2967]; 

DENYING MOTION TO COMPEL [2877]; AND DECLINING TO ISSUE CERTIFICATE 

OF APPEALABILITY 

Before the Court is pro se Petitioner Joseph Whiting’s motion to vacate, set aside, 

or correct his sentence, brought under 28 U.S.C. § 2255. (ECF No. 2827.) The 

Government filed a response in opposition to Petitioner’s motion and Petitioner filed a 

reply. (ECF Nos. 2982, 2984.) Also before the Court are several motions filed by Petitioner 

to amend his § 2255 motion, Petitioner’s motions for joinder with motions filed by other 

defendants in his trial group, and Petitioner’s motion to compel the production of 

evidence. (ECF Nos. 2837, 2856, 2878, 2879, 2965, 2967, 2877.) The Court is familiar 

with the previous proceedings and has thoroughly reviewed the record. The motion, 

briefs, and records conclusively show Petitioner is not entitled to relief and an evidentiary 

hearing on this matter is not necessary. See 28 U.S.C. § 2255(b). For the reasons that 

follow, Petitioner’s motions are DENIED. 

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I. Background 

Petitioner Joseph Whiting is the former National President of the Highwaymen 

Motorcycle Club (“HMC”), a multi-state outlaw motorcycle gang with its national 

headquarters in Detroit, Michigan. See United States v. Nagi, 541 F. App'x 556, 576 (6th 

Cir. 2013). In 2009, Petitioner was indicted for activities related to HMC. (ECF No. 198, 

997.) After a lengthy trial, a jury convicted Petitioner of four counts: Count One, 

racketeering in violation of 18 U.S.C. §§ 1962(c) and 1963(a); Count Two, conspiracy to 

commit racketeering in violation of 18 U.S.C. §§ 1962(d) and 1963(a); Count Thirteen, 

conspiracy to commit murder in aid of racketeering in violation of 18 U.S.C. § 1959(a)(5); 

and Count Forty-Seven, receipt and possession of stolen vehicles in violation of 18 U.S.C. 

§ 2313. (ECF No. 1470.) This Court sentenced Petitioner to 420 months on Counts One, 

Two, and Thirteen, and 120 months on Count Forty-Seven, all to be served concurrently. 

(ECF No. 1854.) Petitioner appealed his sentence and the Sixth Circuit affirmed. Nagi, 

541 F. App'x at 577. The Supreme Court denied a petition for certiorari. (ECF No. 2517.) 

In September 2014, Petitioner filed his first § 2255 motion to vacate, set aside, or 

correct his sentence. (ECF. 2630.) He moved to amend his motion in August 2015 and 

the Court allowed the amendment. (ECF Nos. 2706, 2710.) In his amended motion, 

Petitioner argued that he received ineffective assistance from both his trial and appellate 

counsel. (ECF No. 2707.) He claimed his trial counsel was ineffective for failing to call an 

alibi witness. (Id.) He accused his appellate counsel of being ineffective for failing to raise 

a Brady claim, failing to raise a claim of prosecutorial misconduct, failing to raise an 

“incorporation” claim, and failing to raise a unanimous jury verdict claim. (Id.) In addition, 

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Petitioner argued that his sentence on Count 13 was invalid in light of Apprendi v. New 

Jersey, 530 U.S. 466 (2000). (Id.) 

The Court granted in part and denied in part Petitioner’s § 2255 motion on August 

27, 2015. (ECF No. 2717.) The motion was granted as to Petitioner’s claim that his 

sentence on Count 13 exceeded the statutory maximum, but was denied in all other 

respects. (Id.) Petitioner appealed and the Sixth Circuit affirmed this Court’s decision. 

(ECF Nos. 2717, 2782.) 

On December 17, 2015, this Court resentenced Petitioner on Count Thirteen. An 

amended judgment was entered on December 21, 2015. (ECF No. 2760.) Petitioner did 

not file a direct appeal. Petitioner filed the present § 2255 motion exactly one year after 

the Amended Judgment was entered, on December 21, 2016. (ECF No. 2827.) In his 

motion, Petitioner raises four claims: (Ground One) the Government did not have 

jurisdiction to prosecute him for conspiracy to commit murder in aid of racketeering as 

alleged in Count Thirteen; (Ground Two) this Court should have presented the jury with 

a special interrogatory following the guilty verdict so that the jury could determine whether 

the life enhancement under 18 U.S.C. § 1963(a) applied; (Ground Three) this Court failed 

to instruct the jury on an essential element of receipt and possession of stolen vehicles 

as charged in Count Forty-Seven, namely that the vehicle was in the “stream of 

interstate or foreign commerce”; and (Ground Four) Petitioner was sentenced under an 

incorrect guideline range because his criminal history score was allegedly a category III, 

rather than a category VI. (Id.) 

The Government did not immediately provide a response on the merits of 

Petitioner’s arguments. Rather, it claimed the motion should be transferred to the Sixth 

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Circuit for certification because it was a “second or successive motion” under § 2255(h). 

(ECF Nos. 2836, 2865.) This Court agreed with the Government and entered an order 

transferring Petitioner’s motion to the Sixth Circuit. (ECF No. 2896.) 

The Sixth Circuit responded on February 4, 2019. (ECF No. 2961.) Noting a circuit 

split on the issue of whether the entry of an amended judgment restarts the count for filing 

a second or successive motion to vacate, the Sixth Circuit sided with the majority of 

circuits and ruled against this Court’s decision. (ECF No. 2961 at 3.) Thus, the Sixth 

Circuit held that the § 2255 Petitioner filed after the Amended Judgment was not a 

“second or successive motion” that would require certification under § 2255(h). (ECF No. 

2961 at 3.) Petitioner’s motion was therefore remanded back to this Court for further 

proceedings. (Id.) 

During the time between December 21, 2016 (the date Petitioner filed the present 

motion) and March 29, 2019 (the date the mandate from the Sixth Circuit issued), 

Petitioner filed three motions to amend his § 2255. (ECF Nos. 2856, 2879, 2965.) He also 

filed three “notices of joinder” in which he sought to “adopt by reference the issues, claims, 

and legal arguments raised in the § 2255 motions” filed by co-defendants Gary Ball, Jr. 

and Leonard Moore, Sr. (ECF Nos. 2837, 2878, 2967) (cleaned up.) 

In his first motion to amend,1 filed on February 24, 2017, Petitioner states that he 

seeks to add three additional claims to his § 2255 motion: (Proposed Ground 5) that 

Petitioner was improperly subjected to two convictions for the same conduct when he was 

convicted of substantive racketeering in Count One and racketeering conspiracy in Count 

1 Rather than attaching the proposed amended § 2255 to each of his motions to amend, Petitioner 

filed the proposed amended motions separately. Thus, the Court will at times cite to two separate filings 

when referring to a single motion to amend. 

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Two; (Proposed Ground Six) that the “dual sovereignty doctrine” precludes his convictions 

for Counts One and Thirteen; and (Proposed Ground Seven) that his sentencing 

guidelines were improperly enhanced under two separate provisions for the same 

conduct. (ECF No. 2857.) Without expansive argument on why the Court should permit 

the amendment, Petitioner simply stated that “Ground Five [relates] back to Ground Two 

and Ground Six relates back to Ground One, in which petitioner discovered more 

evidence to support his [position].” (ECF Nos. 2856.) He noted at the bottom of his 

proposed amended motion that “Ground Seven relates back to Ground Two.” 

Petitioner filed his second motion to amend his § 2255 on May 12, 2017. (ECF No. 

2879.) This motion sets forth no decipherable arguments as it appears to be missing 

several pages and does not attach a proposed amended motion. (See id.) 

More than three years after the Court entered its Amended Judgment, on February 

15, 2019, Petitioner filed his most recent motion to amend. (ECF No. 2965.) He cites 

Federal Rule of Civil Procedure 15(c)(1)(B) in his motion, but provides no argument as to 

why he believes his latest amendment “relates back” to his original motion. (See id.) In 

his proposed amended motion, Petitioner raises 20 claims of ineffective assistance of trial 

counsel, six claims of ineffective assistance of appellate counsel, and two “Free-Standing 

Constitutional Claims,” each with two sub-parts.2

2 Petitioner claims his trial counsel was ineffective for (1) not requesting a specific unanimity 

instruction regarding the Michigan murder statute Petitioner was determined to have violated; (2) failing to 

file a pretrial motion to dismiss the second superseding indictment because it did not “affect commerce”; 

(3) failing to object to the district court’s instruction that a de minimis effect on interstate commerce was 

sufficient to satisfy RICO’s commerce element; (4) failing to object to the jury instruction that conduct which 

“affect[s]” commerce is limited to conduct detrimental to commerce; (5) failing to make an as-applied 

constitutional challenge to the RICO statute’s application to noneconomic activity; (6) failing to move for a 

directed verdict of acquittal on the RICO charges because the prosecution did not prove Petitioner 

participated in the conduct of the enterprise “through a pattern of racketeering activity”; (7) failing to request 

a directed verdict of acquittal based on the prosecution’s alleged failure to prove Petitioner committed 

Racketeering Acts 8 and 12 as a result of his involvement with the enterprise; (8) failing to request a direct 

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The Government filed a response in opposition to Petitioner’s motion and proposed 

amendments on July 19, 2019.3 (ECF No. 2982.) The Government argues Petitioner’s 

§ 2255 motion and subsequent amendments should be denied because (1) his claims 

are procedurally defaulted because he failed to raise them on appeal; (2) the claims in 

Petitioner’s amended motions are time barred; and (3) none of his claims have merit. (Id.

at PageID.22099.) 

II. Standard of Review 

 Section 2255 allows a prisoner in custody under sentence of a federal court to 

"move the court which imposed the sentence to vacate, set aside or correct the sentence." 

verdict of acquittal based on inadequate evidence to support Count 13; (9) failing to object to the jury 

instructions on “conduct” and “participate”; (10) failing to object to the jury instruction that “the simple taking 

of directions” and performance of necessary and helpful tasks was enough to bring Petitioner within the 

scope of § 1962(c); (11) failing to object to the jury instruction that would suggest Petitioner’s “minimal role” 

was enough for purposes of convicting him under § 1962(c); (12) failing to object to the jury instruction 

regarding “helpful acts” as opposed to “directing the enterprise’s affairs”; (13) failing to object to the jury 

instruction that “an enterprise is operated not just by upper management, but also by lower rung 

participants”; (14) failing to file a motion for directed verdict of acquittal based on insufficient evidence to 

support a conviction under § 1962(c); (15) failing to move for a directed verdict of acquittal because 

Petitioner did not commit two predicate acts and the prosecution did not prove Petitioner knowingly 

associated with HMC by agreeing to commit the predicate acts; (16) failing to object to the jury instruction 

that the prosecution was required to prove the predicate acts were related to one another and threatened 

continued criminal activity; (17) failing to object to the jury instruction on the RICO pattern requirement; 

(18) failing to object to the jury instruction that the jury “need not find that these racketeering acts were 

related to each other” and that the acts had only to be “in some way related to the activities of the enterprise”; 

(19) failing to move for directed verdict of acquittal on the RICO conspiracy count because the RICO pattern 

instruction prevented the jury from validly determining whether the requisite pattern existed; and (20) failing 

to object to the pattern instruction that may have caused the jury to find the conspiracy continued to within 

five years of the indictment. (ECF No. 2966, PageID.21989-92.) He claims his appellate counsel was 

ineffective for (1) failing to “include instructions like the ones [Petitioner] now contends [were] required in 

any request to charge submitted to the district court before or during trial”; (2) failing to “object during the 

charge conference that the district court’s proposed charge included and/or omitted the objectionable 

language in these instructions, or advise the court that such language should be included or removed from 

the instructions; (3) forfeiting Petitioner’s right to challenge defective instructions on appeal by failing to 

adequately object during trial; (4) failing to challenge instructional errors that would have resulted in a new 

trial being ordered; (5) failing to make an argument on appeal regarding United States v. Waucuash, 380 

F.3d 251, 255 (6th Cir. 2004); and (6) failing to “present all of the foregoing issues, supported by citations 

to the record and to applicable authority” on appeal. (Id. at PageID.21992.) Petitioner’s proposed “FreeStanding Constitutional Claims” include (1) a Due Process claim based on the repeal of Mich. Comp. Laws 

§ 750.316; and a Due Process claim based on the alleged vagueness of the phrase “pattern of racketeering 

activity.” (Id. at PageID.21992-93.) 

3 The Court did not order and the Government did not provide a response to Petitioner’s third motion 

to amend. 

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28 U.S.C. § 2255(a). To prevail on the motion, a movant must show "(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." 

McPhearson v. United States, 675 F.3d 553, 559 (6th Cir. 2012) (quoting Mallett v. United 

States, 334 F.3d 491, 496-97 (6th Cir. 2003)). Relief is warranted “only where a petitioner 

has shown ‘a fundamental defect which inherently results in a complete miscarriage of 

justice.’” Griffin v. United States, 330 F.3d 733, 736 (2003) (citing Davis v. United States, 

417 U.S. 333, 346 (1974)). 

 The petitioner has the burden to prove he is entitled to relief by a preponderance 

of the evidence. Pough v. United States, 442 F.3d 959, 964 (6th Cir. 2006). He “must 

clear a significantly higher hurdle than would exist on direct appeal.” United States v. 

Frady, 456 U.S. 152, 166 (1982). The Court notes that petitioner is acting pro se. “It is ... 

well-settled that ‘[t]he allegations of a pro se habeas petition . . . are entitled to a liberal 

construction. . . .’ ” Porter v. Genovese, 676 F. App'x 428, 440 (6th Cir. 2017). Therefore, 

the Court will liberally construe Petitioner's motions. 

III. Analysis

 The Court considers each of Petitioner’s motions in turn, starting with Petitioner’s 

motions to amend his § 2255 motion and motions for joinder, then moving to the 

present § 2255 motion, and finally considering Petitioner’s motion to compel. 

A. Motions to Amend 

 Eighteen U.S.C. § 2255(f) creates a one-year limitations period for habeas 

petitions filed by persons in custody pursuant to a federal court judgment. The one-year 

statute of limitations period begins, with exceptions not applicable here, on the date on 

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which the judgment of conviction becomes final. 28 U.S.C. § 2255(f)(1). Here, Whiting’s 

conviction became final 14 days after entry of the Amended Judgment—on January 4, 

2016. Fed. R. App. P. 4(b)(1)(A)(i). See also Sanchez-Castellano v. United States, 358 

F.3d 424, 428 (6th Cir. 2004) (holding that an unappealed federal criminal judgment 

becomes final upon the expiration of the time period in which the defendant could have 

filed an appeal, according to Fed. R. App. P. 4(b)(1)(A)). Petitioner timely filed his § 2255 

motion on December 21, 2016, just 14 days shy of the one-year deadline. He then sought 

to amend the motion on February 24, 2017, May 12, 2017, and February 15, 2019. (ECF 

Nos. 2827, 2856, 2879, 2965.) In addition, Petitioner moved for “joinder” with certain 

§ 2255 motions brought by his co-defendants on three occasions: January 23, 2017, May 

12, 2017, and February 15, 2019. (ECF Nos. 2837, 2878, 2967.) The Court construes 

these as additional motions to amend Petitioner’s § 2255 motion. The Government 

argues Petitioner’s motions to amend should be denied as time-barred because the new 

claims he seeks to add do not “relate back” to his original pleading. (ECF No. 2982, 

PageID.22105-07.)

 Motions to amend a § 2255 motion are governed by Rule 15 of the Federal Rules 

of Civil Procedure. Oleson v. United States, 27 F. App'x 566, 568 (6th Cir. 2001) (citing 

28 U.S.C. § 2242 ¶ 3.) This Rule instructs courts to freely grant leave “when justice so 

requires. . . .” Fed. R. Civ. P. 15. When evaluating the requirements of justice, courts 

consider several factors: whether there was undue delay in filing, any lack of notice to the 

opposing party, bad faith by the moving party, repeated failure to cure deficiencies by 

previous amendments, undue prejudice to the opposing party, and futility of the proposed 

amendment. Id. (quoting Coe v. Bell, 161 F.3d 320, 341 (6th Cir. 1998)). 

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 Additionally, to the extent that a motion to amend seeks to raise entirely new claims 

for relief, it is subject to the same one-year limitation applicable to a § 2255 motion. Id. at 

570. Any proposed amendment filed after the deadline has run will therefore be denied 

as time barred unless it “relates back” pursuant to Rule 15(c) of the Federal Rules of Civil 

Procedure. Mayle v. Felix, 545 U.S. 644, 656 (2005). Rule 15(c) provides that an 

amendment relates back to an original pleading when it “asserts a claim or defense that 

arose out of the conduct, transaction or occurrence set out—or attempted to be set out—

in the original pleading[.]” Fed.R.Civ.P. 15(c)(1)(B). In Mayle, the Supreme Court 

explained that this language should be interpreted narrowly in this context— an amended 

§ 2255 does not relate back where it asserts a new ground for relief supported by facts 

that differ from those in the original motion. 545 U.S. at 650. Instead, the claims in the 

original and amended motions must be “tied to a common core of operative facts.” Id. at 

664. 

 Petitioner’s motions to amend his § 2255 are denied because the interests of 

justice weigh against allowing the amendments and because his amended grounds for 

relief do not “relate back” to his original motion. First, the Court finds that the combination 

of undue delay, futility, and undue prejudice to the Government require denial of 

Petitioner’s proposed amendments. Petitioner moved to amend his original § 2255 after 

the one-year deadline had expired, and in the case of his third motion to amend, more 

than three years after the Amended Judgment was entered. This delay in filing was 

unnecessary as Petitioner’s trial concluded years earlier and his asserted grounds for 

relief all arose on or about the time of trial or sentencing. The delay also prejudiced the 

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Government as Petitioner filed his final motion to amend after the Government responded 

to his original § 2255 and first motion to amend. 

 Moreover, Petitioner’s motions to amend are futile as his claims have no merit and 

his underlying legal claims are procedurally defaulted. At the outset, the Court notes it 

has already denied the motions brought by Leonard Moore, Sr. (ECF No. 2866) and Gary 

Ball, Jr. (ECF NO. 2818) that Petitioner wishes to join so Petitioner’s proposed “joinder” 

with those defendants’ claims is futile. (See ECF Nos. 2917, 2945.) Petitioner’s individual 

proposed claims are also futile. First, Petitioner’s proposed “multiplicitous convictions” 

claim would fail because a charge of conspiracy and an associated substantive offense 

are two distinct offenses. See United States v. Myers, 854 F.3d 341, 355 (6th Cir. 2017). 

His proposed “dual sovereignty doctrine” claim would fail because Petitioner has not 

shown that he was prosecuted a second time for the same criminal conduct and, even if 

he was, the dual sovereignty doctrine holds that a second prosecution does not violate 

the double jeopardy clause if the prosecutions are brought by different sovereigns. Puerto 

Rico v. Sanchez Valle, 136 S. Ct. 1863, 1870 (2016). Petitioner’s proposed claim that his 

sentencing guidelines were improperly enhanced under two separate guideline provisions 

would fail because this type of claim is not cognizable in a § 2255 motion. See Snider v. 

United States, 908 F.3d 183, 189 (6th Cir. 2018). And finally, Petitioner’s claims of 

ineffective assistance of counsel would fail because Petitioner has not shown deficiency 

or prejudice. See Strickland v. Washington, 466 U.S. 668, 687 (1984). 

 The Court also denies Petitioner’s motions to amend as nearly all of Petitioner’s 

proposed amendments are time-barred under Mayle because they do not relate to the 

“common core of operative facts” Petitioner relies upon in his original motion. In the 

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original motion, Petitioner argues legal theories related to jurisdiction, lack of a special 

verdict form, incorrect jury instructions, and reliance upon an inaccurate criminal history 

category at sentencing. (ECF No. 2827.) By contrast, his motions to amend are based on 

alleged errors involving multiplicity, double jeopardy, use of an improper sentence 

enhancement, the Due Process Clause, and 26 instances of ineffective assistance of 

counsel. (ECF Nos. 2857, 2966). Each of these claims, arguably except for two,4 present 

new and unique legal theories based on different factual assertions than what Petitioner 

included in his original motion. Thus, the claims do not satisfy Rule 15(c). See Mayle, 545 

U.S. at 664. 

 Petitioner’s three motions to amend his § 2255 motion are therefore denied and 

the Court will consider only the claims included in Petitioner’s December 21, 2016 motion. 

B. Procedural Default 

 The Government contends that Petitioner’s § 2255 motion should be denied 

because, among other things, his claims are procedurally defaulted. (ECF No. 2982, 

PageID.22103.) Petitioner failed to raise his claims in the district court, failed to raise them 

in his first appeal, and failed to file a second appeal after he was resentenced in 2015. 

Petitioner responds by referring to argument he presented in support of his ineffective 

assistance of counsel claims in his proposed amended § 2255, but this argument does 

not apply to the claims or motion presently before the Court. (ECF No. 2984.) 

4 Two of Petitioner’s ineffective assistance of counsel claims in his proposed third amended motion 

seemingly relate to facts alleged by Petitioner in grounds one and two of his original motion. (See ECF Nos. 

2827, 2966.) Nevertheless, the Court denies Petitioner’s motion to amend to include these claims in the 

interests of justice as described herein. Notably, Petitioner sought to amend his motion to include these 

particular claims over three years after entry of the Amended Judgment. The claims are also futile as 

Petitioner has not established deficiency or prejudice. 

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 It is well established 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.” Regalado v. 

United States, 334 F.3d 520, 528 (6th Cir. 2003) (citing Frady, 456 U.S. at 167-68). Claims 

that could have been raised on direct appeal, but were not, will not be entertained via a 

§ 2255 motion unless the petitioner shows cause and actual prejudice to excuse his 

failure to raise the claims previously, or that he is actually innocent of the crime.” Id. (citing 

Bousley v. United States, 523 U.S. 614, 622 (1998)). Even then, a petitioner who seeks 

collateral review relief after failing to assert his claims previously “must clear a significantly 

higher hurdle than would exist on direct appeal.” Id. 

 Petitioner does not claim to be actually innocent, so he must show cause and 

prejudice to overcome the procedural default. See id. “Cause requires a showing that 

‘some objective factor external to the defense’ prevented him from raising the issue 

earlier, and prejudice requires that the alleged error worked to Defendant's ‘actual and 

substantial disadvantage, infecting his entire trial with error of constitutional dimensions.’ ” 

United States v. Samonek, No. 12-14703, 2014 WL 2931829, at *2 (E.D. Mich. June 30, 

2014) (citing Coleman v. Thompson, 501 U.S. 722, 753 (1991); Frady, 456 U.S. at 170). 

 All of the arguments Petitioner raises (a lack of jurisdiction, no use of a special 

verdict form, incorrect jury instructions, incorrect criminal history category at sentencing) 

would have been known to him at the time of his conviction or sentence. Petitioner could 

have raised these claims in his first appeal or in a direct appeal to the Sixth Circuit after 

his resentencing, but he did not do so. Moreover, Petitioner cites no external factor that 

prevented him from raising these arguments sooner. He therefore fails to meet the 

“cause” requirement. He also fails to meet the “prejudice” requirement because, as 

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discussed more below with regard to the merits of his claims, he has not shown an “actual 

and substantial disadvantage, infecting his entire trial with error of constitutional 

dimensions.” See Samonek, 2014 WL 2931829, at *2. 

C. Petitioner’s Claims Lack Merit 

 Even if Petitioner’s claims were not procedurally defaulted, his § 2255 motion 

would still be denied as his claims do not have merit. 

 Petitioner’s Ground One claim that the government lacked jurisdiction to prosecute 

him for Count Thirteen because conspiracy to commit murder in aid of racketeering, in 

violation of 18 U.S.C. § 1959, does not contain an element involving interstate commerce 

is foreclosed by United States v. Riddle, 249 F.3d 529 (6th Cir. 2001). (See ECF No. 

2827, PageID.20612.) The Sixth Circuit held in Riddle that jurisdiction is proper if the 

violent act (here, conspiracy to murder) was connected to a racketeering “enterprise 

which has a de minimis interstate commerce connection.” 249 F.3d at 538. The lack of 

an interstate element in § 1959 therefore does not invalidate Petitioner’s prosecution. See 

United States v. Mills, 378 F.Supp.3d 563, 573 (E.D. MI 2019) (“the focus is on whether 

the enterprise, not the act of violence, had a sufficient connection to interstate 

commerce”). Petitioner’s § 2255 motion does not allege that his racketeering enterprise 

(which was the subject of his conviction in Count One) did not have a de minimis interstate 

commerce connection nor does he allege that the murder conspiracy had nothing to do 

with the enterprise. 

 Petitioner’s Ground Two claim that this Court erred by not requiring the jury to 

make a special finding as to whether his conspiracy to murder involved premeditation and 

deliberation is also baseless. (See ECF No. 2827, PageID.20613.) The verdict form asked 

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the jury to make findings with respect to Petitioner’s guilt as to three specific racketeering 

acts charged in the Second Superseding Indictment, two of which were for conspiracy to 

commit first degree murder in violation of M.C.L. § 750.316(1), which carries a 

punishment of life imprisonment without parole. (ECF No. 1470, PageID.5114.) In both 

cases, the jury found that those facts had been proven. (Id.) First degree murder in 

Michigan requires that the killing be “willful, deliberate, and premeditated,” People v. 

Bowman, 656 N.W. 2d 835 (Mich. App. 2002), and the jury in Whiting’s trial was instructed 

accordingly. (ECF No. 1962, PageID.12457-58, trial transcript.) Therefore, there was no 

need for a special finding as to premeditation; the jury’s finding on the special verdict form 

was sufficient to trigger the statutory maximum of life imprisonment under § 1963(a). 

 Petitioner’s Ground Three claim that this Court improperly instructed the jury on 

Count Forty-Seven (receipt of stolen vehicles, in violation of 18 U.S.C. § 2313) is also 

without merit. (ECF No. 2827, PageID.20615). Section 2313 makes it a crime to receive 

a motor vehicle “which has crossed a State or United States boundary after being stolen, 

knowing the same to have been stolen . . . .” This Court specifically instructed the jury 

that the government had to prove beyond a reasonable doubt that: “One, the defendant 

acted knowingly and intentionally; two, the defendant received or took possession of 

the stolen motor vehicle; three, the defendant knew the vehicle was stolen; four, the 

vehicle had been stolen in another state.” (ECF No. 1962, PageID.12459-60, 12477). 

These instructions properly set forth the elements of the offense. 

 Finally, Petitioner’s Ground Four sentencing guidelines claim (that his criminal 

history category was wrong) is not cognizable in a § 2255 motion. Snider, 908 F.3d at 

189 (a challenge to an advisory guideline range “is not cognizable under § 2255”); United 

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States v. Delaney, 2016 WL 1258960, *3 (E.D. MI 2016) (Hood, C.J.) (“[s]ection 2255 

does not apply to errors in calculation of the Sentencing Guidelines ‘absent a complete 

miscarriage of justice.’”) (quoting Jones v. United States, 178 F.3d 790, 796 (6th Cir. 

1999)). Thus, each claim in Petitioner’s § 2255 motion lacks merit. 

IV. Motion to Compel 

 On May 12, 2017, Petitioner moved the Court to compel the production of certain 

transcripts, records, and evidence from the Government. (ECF No. 2877.) He states that 

his counsel obtained discovery from the government but that he has been unsuccessful 

in his attempts to personally acquire the evidence either from his own counsel or from the 

prosecution. 

 Petitioner has not shown that all of the records he requests exist. Additionally, he 

has not shown he is entitled to the items he requests as the rules and authority to which 

he cites do not apply here. See Fed. R. Crim. P. 12.1, 16, 26.2. Additionally, at the time 

Petitioner filed his motion to compel, he had already filed his § 2255 motion, two motions 

to amend, and a motion for joinder. He has now filed even more motions in which he does 

not mention outstanding discovery. Thus, Petitioner has not shown that he needs these 

items for any particular purpose or motion. Petitioner’s motion to compel is therefore 

DENIED AS MOOT. 

V. Certificate of Appealability 

 Federal Rule of Appellate Procedure 22(b) provides that a petitioner cannot take 

an appeal in § 2255 proceeding unless a certificate of appealability is issued under 28 

U.S.C. § 2253(c). Rule 11 of the Rules Governing Section 2255 Proceedings requires a 

district court to “issue or deny a certificate of appealability when it enters a final order 

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adverse to the applicant.” To receive a certificate of appealability, “a petitioner must show 

that reasonable jurists could debate whether (or, for that matter, agree that) the petition 

should have been resolved in a different manner or that the issues presented were 

adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 

322, 336 (2003) (quotation marks and citation omitted). Because Petitioner has failed to 

show that reasonable jurists could debate whether his petition should have been resolved 

in a different matter, the Court denies him a certificate of appealability. 

VI. Conclusion 

 For the foregoing reasons, Petitioner’s § 2255 motion and his motions to amend, 

and for joinder (ECF Nos. 2827, 2837, 2856, 2878, 2879, 2965, 2967) are DENIED.

Petitioner’s motion to compel (ECF No. 2877) is DENIED AS MOOT. Because the records 

of the case show “conclusively that Petitioner is entitled to no relief” on his claims, 28 

U.S.C. § 2255(b), the Court declines to hold an evidentiary hearing. 

SO ORDERED. 

 s/Nancy G. Edmunds 

 Nancy G. Edmunds 

 United States District Judge 

Dated: September 14, 2022 

 

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I hereby certify that a copy of the foregoing document was served upon counsel of record 

on September 14, 2022, by electronic and/or ordinary mail. 

 s/Lisa Bartlett 

 Case Manager 

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