UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

NORTHERN DIVISION

DAMON DESEAN MORGAN,

Petitioner, CRIM. CASE NO: 1:09-cr-20254

CIVIL CASE NO: 1:17-cv-10043

v. DISTRICT JUDGE THOMAS L. LUDINGTON

MAGISTRATE JUDGE PATRICIA T. MORRIS 

UNITED STATES OF AMERICA,

Respondent.

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MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

ON PETITIONER’S 28 U.S.C. § 2255 MOTION

TO VACATE, SET ASIDE, OR CORRECT SENTENCE and RESPONDENT’S

MOTION TO DISMISS

(Docs. 26, 32)

I. RECOMMENDATION

For the reasons set forth below, IT IS RECOMMENDED that Petitioner’s motion to

vacate (Doc. 26) be DENIED and that Respondent’s motion to dismiss (Doc. 32) be GRANTED. 

II. REPORT

On August 21, 2009, Petitioner was charged in an indictment with possession with intent

to distribute fifty grams or more of cocaine base in violation of 21 U.S.C. § 841(a)(1)(Count 1),

possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C.

§924(c)(1)(A)(Count 2), and felon in possession of a firearm in violation of 18 U.S.C.

§922(g)(1)(Count 3). (Doc. 3.) Petitioner was detained pending trial. (Doc. 9.) On November 24,

2009, Petitioner pleaded guilty to Count 1 of the indictment. (Doc. 17.) The plea agreement

contained an appeallte and collateral attack waiver. (Doc. 17 at 7.)
Petitioner was sentenced on March 10, 2010 and judgment entered on March 16, 2010,

committing Petitioner to the Bureau of Prisons for 210 months. (Doc. 22 at 2.) On January 3,

2017, Petitioner filed the instant motion to vacate sentence. (Doc. 26.) 

Petitioner’s sole argument for relief is based on Johnson v. United States, 135 S. Ct. 2551

(2015). (Doc. 26 at 7.) 

On January 31, 2017, Respondent filed a motion to dismiss Petitioner’s motion to vacate

sentence. (Doc. 32.) Respondent’s motion to dismiss argues that Petitioner is not entitled to relief

under Johnson v. United States, 135 S. Ct. 2551 (2015) because his sentence was enhanced based

on prior controlled substance violations and because he waived his right to collaterally attack his

conviction and sentence. (Doc. 32.)

In Johnson, the Supreme Court held that the Armed Career Criminal Act’s (ACCA’s)

residual clause, i.e., the clause that defines a “violent felony” to include an offense that “involves

conduct that presents a serious potential risk of physical injury to another” is unconstitutionally

vague and violates due process. 18 U.S.C. § 924(e)(2)(B)(ii). The Supreme Court has further held

that Johnson has retroactive effect in cases on collateral review. Welch v. United States, 136 S. Ct.

1257, 1265 (2016); accord, In Re Watkins, 810 F.3d 375, (6th Cir. 2015).

The Sixth Circuit held that since the United States Sentencing Guidelines (USSG) § 4B1.2

also contains a residual clause that is identical in wording to the residual clause in the ACCA, the

Johnson rationale applies equally to the sentencing guidelines residual clause defining a crime of

violence. USSG § 4B1.2(a); United States v. Pawlak, No. 15-3566, 2016 WL 2802723, at *8 (6th

Cir. Mar. 13, 2016). In this case, Petitioner was treated as a career offender under the guidelines

based on prior controlled substance convictions, not violent felonies. Therefore, the Johnson

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analysis does not apply. Even if it did, the United States Supreme Court in Beckles v. United States,

137 S. Ct. 886 (Mar. 6, 2017), abrogated Pawlak and held that the sentencing guidelines are not

subject to a void-for-vagueness challenge. Therefore, the residual clause of the career offender

sentencing guidelines remains viable and any claims challenging the guideline must fail. 

Accordingly, I recommend that Respondent’s motion to dismiss be granted and that

Petitioner’s motion to vacate be denied. 

III. REVIEW

Pursuant to Rule 72(b)(2) of the Federal Rules of Civil Procedure, “[w]ithin 14 days after

being served with a copy of the recommended disposition, a party may serve and file specific

written objections to the proposed findings and recommendations. A partymay respond to another

party’s objections within 14 days after being served with a copy.” Fed. R. Civ. P. 72(b)(2). See also

28 U.S.C. § 636(b)(1). Failure to file specific objections constitutes a waiver of any further right

of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Sec’y of Health & Human Servs., 932

F.2d 505 (6th Cir. 1991); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). The parties are

advised that making some objections, but failing to raise others, will not preserve all the objections

a party may have to this Report and Recommendation. Willis v. Sec’y of Health & Human Servs.,

931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed’n of Teachers Local 231, 829 F.2d 1370,

1373 (6th Cir. 1987). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be

served upon this magistrate judge. 

Any objections must be labeled as “Objection No. 1,” “Objection No. 2,” etc. Any objection

must recite precisely the provision of this Report and Recommendation to which it pertains. Not

later than 14 days after service of an objection, the opposing party may file a concise response

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proportionate to the objections in length and complexity. Fed. R. Civ. P. 72(b)(2); E.D. Mich. LR

72.1(d). The response must specifically address each issue raised in the objections, in the same

order, and labeled as “Response to Objection No. 1,” “Response to Objection No. 2,” etc. If the

Court determines that any objections are without merit, it may rule without awaiting the response.

Date: May 31, 2017 s/ Patricia T. Morris

Patricia T. Morris

United States Magistrate Judge

CERTIFICATION

I hereby certify that the foregoing document was electronically filed this date through

the Court’s CM/ECF system which delivers a copy to all counsel of record. A copy was also

sent via First Class Mail to Damon Desean Morgan #42731-039 at McKean Federal

Correctional Institution, Inmate Mail/Parcels, P.O. Box 8000, Bradford, PA 16701.

Date: May 31, 2017 By s/Kristen Castaneda 

 Case Manager 

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