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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

UNITED STATES OF AMERICA, 

 Plaintiff-Respondent, Case No. 09-20326 

v. Honorable Nancy G. Edmunds 

CLARENCE HENRY COHEN (D-9), 

 

 Defendant-Petitioner. 

_______________________________/ 

 OPINION AND ORDER DENYING DEFENDANT’S MOTION UNDER 

28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE [620] 

Defendant-Petitioner Clarence Henry Cohen moves this Court pro se to vacate, 

set aside, or correct his sentence under 28 U.S.C. § 2255. (ECF No. 620.) The 

government opposes the motion. (ECF No. 624.) Defendant has filed a reply. (ECF No. 

625.) For the reasons below, the Court DENIES Defendant’s § 2255 motion. 

I. Background 

On October 21, 2010, Defendant pled guilty to conspiracy to possess with intent 

to distribute and to distribute cocaine in violation of 21 U.S.C. §§ 841, 846. (ECF No. 356.) 

At the time of sentencing, Defendant’s guidelines range was 292 to 365 months based 

upon an offense level of 39 and a criminal history category of II. (See ECF No. 455, 

PageID.1630.) The Court varied downwards and sentenced Defendant to a term of 264 

months. (ECF No. 460.) The Sixth Circuit affirmed on direct appeal. See United States v. 

Cohen, 515 F. App’x 405, 414 (6th Cir. 2013). Defendant’s first motion under § 2255 was 

denied, (ECF No. 520), but his sentence was later reduced to 235 months under 18 

U.S.C. § 3582(c)(2), (ECF No. 550). In 2022, Defendant was released to home 

confinement pursuant to the CARES Act. He is projected to be released from the custody 

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of the Federal Bureau of Prisons on October 1, 2025. Defendant now invokes § 2255 a 

second time, asking the Court to reduce his sentence to “time served” or grant him a 

resentencing. In support of his motion, Defendant attaches two 2023 orders setting aside 

convictions in state court. (ECF No. 620, PageID.2858-62.) Defendant argues that without 

those convictions, he would have had a criminal history category of I and a lower 

guidelines range. 

II. Standard of Review 

Under § 2255(a), “[a] prisoner in custody under sentence of a [federal] court . . . 

claiming the right to be released . . . may move the court which imposed the sentence to 

vacate, set aside or correct the sentence.” “The statute authorizes postconviction relief 

only when a sentence ‘was imposed in violation of the Constitution or laws of the United 

States, . . . the court was without jurisdiction to impose such sentence, . . . the sentence 

was in excess of the maximum authorized by law, or [the sentence] is otherwise subject 

to collateral attack.’” Snider v. United States, 908 F.3d 183, 189 (6th Cir. 2018) (quoting 

§ 2255(a)). 

III. Analysis1

Defendant’s claim constitutes a collateral attack. “When a § 2255 claim falls under 

this category, the claim is ‘generally cognizable only if it involve[s] a fundamental defect 

which inherently results in a complete miscarriage of justice.’” Bullard v. United States, 

937 F.3d 654, 658 (6th Cir. 2019) (quoting Snider, 908 F.3d at 189). This has been 

1 As the government acknowledges in its response, this is not a “second or 

successive” § 2255 petition that would require prior authorization from the Sixth Circuit 

under § 2255(h) because “the events giving rise” to Defendant’s current claim “had not 

yet occurred” at the time of his first motion. See In re Jones, 54 F.4th 947, 949-50 (6th 

Cir. 2022) (internal quotation marks and citations omitted). 

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described as a “demanding standard,” which typically requires proof that a prisoner “‘is 

either actually innocent of his crime or that a prior conviction used to enhance his 

sentence has been vacated.’” Id. at 658 (quoting Spencer v. United States, 773 F.3d 

1132, 1139 (11th Cir. 2014) (en banc)). The Court does not find the order setting aside 

Defendant’s prior misdemeanor marijuana conviction under Mich. Comp. Laws 

§ 780.621e a vacatur for purposes of this motion.2 

Defendant characterizes the order as an expungement order, but the United States 

Sentencing Guidelines distinguish between convictions that are set aside “for reasons 

unrelated to innocence or errors of law, e.g., in order to restore civil rights or to remove 

the stigma associated with a criminal conviction” and convictions that are expunged, with 

the former to be counted when calculating a defendant’s criminal history and the latter not 

counted. See U.S.S.G § 4A1.2, application n. 10. In another context, the Sixth Circuit 

explained that “expunged” under the Sentencing Guidelines “means that the adjudication 

of guilt itself was vacated because of demonstrable innocence or legal error.” See United 

States v. Shor, 549 F.3d 1075, 1078 (6th Cir. 2008) (concluding that a sentence imposed 

under Michigan’s Holmes Youthful Trainee Act was properly counted for criminal history 

purposes).3 Here, Defendant’s conviction was set aside as a result of Michigan’s Clean 

2 Defendant has attached two orders setting aside convictions in state court, but 

his criminal history category of II was based only on his 2000 state misdemeanor 

conviction for possession of marijuana and operating without license on person. 

Defendant’s 2012 state conviction for delivery/manufacture less than 50 grams took place 

after his initial sentencing and was not used to calculate his guidelines range. 

3 Defendant cites to United States v. Kammerdiener, 945 F.2d 300, 301 (9th Cir. 

1991), where the court held that the automatic set aside set forth in the Federal Youth 

Corrections Act constitutes an expungement for purposes of the Sentencing Guidelines. 

But there, the court found it was bound by United States v. Hidalgo, 932 F.2d 805 (9th 

Cir. 1991). See Kammerdiener, 945 F.2d at 301. In Shor, 549 F.3d at 1078 n.3, the Sixth 

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Slate initiative, which created a path for setting aside certain marijuana related convictions 

following the legalization of the recreational use of marijuana in the state. Because 

Defendant’s conviction was set aside for reasons unrelated to innocence or legal error, it 

is not considered expunged for purposes of the Sentencing Guidelines and would still 

count towards Defendant’s criminal history if he were sentenced today. Moreover, the 

order setting aside Defendant’s conviction itself states that while the Michigan State 

Police shall maintain a nonpublic record of the order and underlying conviction, if the 

conviction is for an offense that was reportable to the Secretary of State, the driving record 

shall not be expunged, and “the applicant may not seek resentencing in another criminal 

case for which the conviction being set aside was used in determining an appropriate 

sentence.” See ECF No. 620, PageID.2862 (citing Mich. Comp. Laws §§ 780.621f, 

780.623) (emphasis added). At least one other court has rejected a nearly identical claim 

for these reasons. See Johnson v. United States, 2023 U.S. Dist. LEXIS 180606, at *4-6 

(S.D. W. Va. Feb. 7, 2023) accepted and adopted by 2023 U.S. Dist. LEXIS 179992 (S.D. 

W. Va. Oct. 5, 2023) (noting that the Michigan statute “allowing the vacaturs very explicitly 

prohibits the use of the vacaturs in the manner proposed by [the defendant]” and that 

even if the defendant’s two misdemeanor marijuana convictions had been set aside prior 

to sentencing, they still would have been counted for purposes of calculating his criminal 

history category because they were set aside for reasons unrelated to innocence or errors 

of law). 

Circuit explicitly declined to follow Hidalgo “[i]n light of the clear terms of the sentencing 

guidelines and the fact that Hidalgo has been discredited even in the Ninth Circuit.”

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Defendant relies on Watt v. United States, 162 F. App’x 486, 503 (6th Cir. 2006), 

a case in which the court found that the defendant was entitled to resentencing because 

his career-offender sentence enhancement was based in part on state court convictions 

that were subsequently vacated. But there, the state court had voided the convictions 

because “the sentence promised by the prosecution and imposed by the state court” was 

illegal under state law. Id. at 488. The court reasoned that “[s]uch a judgment is void ab 

initio; it is as if the judgment never existed: ‘A void judgment is one which, from its 

inception, was a complete nullity and without legal effect.’” Id. at 503 (quoting In re James, 

940 F.2d 46, 52 (3d Cir. 1991)). Here, the order setting aside Defendant’s prior conviction 

does not encompass a finding that the judgment itself was invalid. Other courts have 

similarly distinguished Watt where the prior conviction was not void. See, e.g., United 

States v. Harper, 2010 U.S. Dist. LEXIS 125392, at *8 (N.D. Ohio Nov. 15, 2010) 

(distinguishing Watt because the state sentence was voidable, not void). In sum, 

Defendant is not entitled to relief. 

IV. 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 

that a “district court must issue or deny a certificate of appealability when it enters a final 

order 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 

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

U.S. 322, 336 (2003) (quotation marks and citation omitted). 

Defendant has not shown that reasonable jurists could debate whether his petition 

should have been resolved in a different matter. Thus, the Court denies him a certificate 

of appealability. 

V. Conclusion 

Based upon the foregoing, IT IS ORDERED that Defendant’s motion for postconviction relief is DENIED WITH PREJUDICE. IT IS FURTHER ORDERED that a 

certificate of appealability is DENIED. 

SO ORDERED. 

 s/Nancy G. Edmunds 

 Nancy G. Edmunds 

 United States District Judge 

Dated: January 8, 2024 

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

on January 8, 2024, by electronic and/or ordinary mail. 

 s/Lisa Bartlett 

 Case Manager 

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