United States District Court, W.D. Tennessee, Western Division
ORDER TO MODIFY THE DOCKET, ADDRESSING PENDING MOTIONS, DENYING MOTION PURSUANT TO 28 U.S.C. § 2255, DENYING CERTIFICATE OF APPEALABILITY, CERTIFYING APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
JON PHIPPS McCALLA, District Judge.
Before the Court is the Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody ("§ 2255 Motion") filed by Movant, Arthur Withers, Bureau of Prisons ("BOP") register number XXXXX-XXX, who is currently an inmate at the Federal Correctional Institution Beckley in Beaver, West Virginia (§ 2255 Mot., Withers v. United States, No. 2:11-cv-03134-JPM-dkv (W.D. Tenn.), ECF No. 1),  and Withers' Motion for Extension of Time to Reply to the Government's Response Pursuant to 28 U.S.C. § 2255 and Motion to Amend Pursuant to Rules of Civil Procedure Rule 15(c)(1)(B) (Mot. for Extension of Time, id., ECF No. 9; Mot. to Amend, id., ECF No. 10.) For the reasons stated below, the Court GRANTS the Motion for Extension of Time, GRANTS leave to amend and DENIES Movant's § 2255 Motion.
A. Case Number 07-20339
On November 8, 2007, a federal grand jury returned a single-count indictment charging Withers, a convicted felon, with possessing a Beretta.32 caliber semi-automatic pistol on or about August 1, 2007, in violation of 18 U.S.C. § 922(g). (Indictment, United States v. Withers, No. 2:07-cr-20339-JPM (W.D. Tenn.), ECF No. 1.) The factual basis for this charge is stated in the presentence report ("PSR"):
5. The following information was gathered from a review of materials contained in the files of the United States Attorney, including the investigative reports of the Memphis Police Department.
6. On August 1, 2007, Memphis Police Department Organized Crime Unit Officers executed a search warrant at 3443 Rosamond. Four people were present in the residence at the time of the executed search warrant: Arthur Withers, Alex Hickerson, Nayia Watson, and Amy Worley. Upon forcing entry, officers observed Arthur Withers run toward the back door carrying a black semi-automatic pistol in his right hand. Withers then stopped and placed the pistol into one of the kitchen drawers. Officers also observed Withers throw a brown paper bag which contained 0.16 grams t.g.w. of crack cocaine and 7 Lortab pills onto the coffee table. Officers recovered the Beretta.32 caliber pistol which was loaded with eight live rounds from the kitchen drawer. Withers was arrested and gave the arresting officers his birth name, Ronrico Ward. It should be noted that Withers' name was changed as a child. When officers arrived at the SCCJC at 201 Poplar, officers determined Withers' true identity using his fingerprints. Withers was read his Miranda Rights but refused to give a statement to officers.
7. Officers searched the co-defendant, Alex Hickerson, and located 14.9 grams t.g.w. of marijuana on his person. Officers also located a digital scale and $349 on the coffee table. A second handgun, a Colt, .32 caliber, handgun loaded with seven live rounds, was located in a bag on the coffee table. Amy Worley advised officers that she had seen Withers previously carrying the Colt pistol which was chrome in color. Hickerson also informed officers that Withers was the owner of the Colt pistol.
8. MPD officers ran a criminal history check on Withers and determined him to be a convicted felon. A check of the firearm by agents of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) determined it was not manufactured in the State of Tennessee and therefore traveled in interstate commerce.
(PSR ¶¶ 5-9.)
Pursuant to a written Plea Agreement, Withers appeared before this judge on April 24, 2009 to plead guilty to the sole count of the Indictment. (Min. Entry, United States v. Withers, No. 2:07-cr-20339-JPM (W.D. Tenn.), ECF No. 47; Plea Agreement, id., ECF No. 50.) On July 17, 2009, the Government filed a position paper that argued for an enhancement for obstruction of justice based on letters written by Withers that appeared to advise a potential witness how to testify at a suppression hearing. (Position of the United States at 1, id., ECF No. 52.) Notwithstanding this conduct, the Government took the position that Withers should be awarded a reduction for acceptance of responsibility. ( Id. at 1-2.)
At a sentencing hearing on July 22, 2009, the Court sentenced Withers to a term of imprisonment of one hundred four months, to be followed by a three-year period of supervised release. (Min. Entry, United States v. Withers, No. 2:07-cr-20339-JPM (W.D. Tenn.), ECF No. 54; Sentencing Hr'g Tr. 61, 70, id., ECF No. 63.) In arguing against the enhancement for obstruction of justice, defense counsel stated that the letter "has been an issue from the beginning. I think I-without-Mr. Withers has really sat in the court library out at Mason and really tried to research this. One of the issues was whether he ever intended to carry that through, but I told him that is going to be an issue, so I think we're all aware of the issues...." (Sentencing Hr'g Tr. 4-5, United States v. Withers, No. 2:07-cr-20339-JPM (W.D. Tenn.), ECF No. 63.) The Court noted that there was no suppression hearing in the case but that an attempt is normally enough to enhance a defendant's sentence for obstruction of justice. ( Id. at 6; see also id. at 19-20.) Judgment was entered on July 22, 2009. (J. in a Criminal Case, United States v. Withers, No. 2:07-cr-20339-JPM (W.D. Tenn.), ECF No. 56.)
The United States Court of Appeals for the Sixth Circuit affirmed Withers' sentence. United States v. Withers, 405 F.Appx. 951 (6th Cir. 2010).
B. Civil Case Number 11-3134
On December 28, 2011, Withers filed his pro se § 2255 Motion, accompanied by a legal memorandum. (§ 2255 Mot., Withers v. United States, No. 2:11-cv-03134-JPM-dkv (W.D. Tenn.), ECF No. 1; Mem., id., ECF No. 1-1.) The issues presented in Withers' § 2255 Motion are as follows:
1. "Rule 32 violation by the government ([l]ate objection) to the PSI not enhancing me" (§ 2255 Mot. at PageID 4);
2. "Ineffective counsel" ( id. at PageID 5); and
3. "Police officer Misconduct Lt. Paul Sherman under investigation (new evidence)" ( id. at PageID 7).
On May 25, 2012, Withers submitted a letter to this judge and various letters he had received. (Letter, Withers v. United States, No. 2:11-cv-03134-JPM-dkv (W.D. Tenn.), ECF No. 2.)
In an order issued on December 21, 2012, the Court directed the Government to respond to the § 2255 Motion. (Order, id., ECF No. 3.) The order provided that "[t]he Government may limit its response to the third issue presented by Defendant, whether defense counsel was ineffective by recommending that Defendant plead guilty despite asserted misconduct by the police." ( Id. at 1-2.)
On March 4, 2013, the Government filed the Response of the United States to Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 ("Answer"), which included the declaration of Movant's trial counsel, Eugene Laurenzi. (Answer, Withers v. United States, No. 2:11-cv-03134-JPM-dkv (W.D. Tenn.), ECF No. 6; Laurenzi Decl., id., ECF No. 6-1.) On May 29, 2013, Withers filed his reply, which was titled "Brief Motion To Vacate, Set Aside, or Correct Pursuant to 28 U.S.C. 2255 Pro Se" ("Reply"). (Reply, id., ECF No. 11.)
On April 19, 2013, Withers filed a Motion to Amend Pursuant to Rules of Civil Procedure Rule 15(c)(1)(B). (Mot. to Amend, id., ECF No. 10.) The proposed amendment, which is not on the official form, contains additional argument in support of Claim 3. In the absence of objection by the Government, leave to amend is GRANTED. The Court will consider the additional arguments set forth in the amendment.
II. THE LEGAL STANDARD
Pursuant to 28 U.S.C. § 2255(a),
[a] prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
"A prisoner seeking relief under 28 U.S.C. § 2255 must allege either (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." Short v. United States, 471 F.3d 686, 691 (6th Cir. 2006) (internal quotation marks omitted).
A § 2255 motion is not a substitute for a direct appeal. See Ray v. United States, 721 F.3d 758, 761 (6th Cir. 2013). "[N]onconstitutional claims that could have been raised on appeal, but were not, may not be asserted in collateral proceedings." Stone v. Powell, 428 U.S. 465, 477 n.10 (1976). "Defendants must assert their claims in the ordinary course of trial and direct appeal." Grant v. United States, 72 F.3d 503, 506 (6th Cir. 1996). This rule is not absolute:
If claims have been forfeited by virtue of ineffective assistance of counsel, then relief under § 2255 would be available subject to the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In those rare instances where the defaulted claim is of an error not ordinarily cognizable or constitutional error, but the error is committed in a context that is so positively outrageous as to indicate a "complete miscarriage of justice, " it seems to us that what is really being asserted is a violation of due process.
Even constitutional claims that could have been raised on direct appeal, but were not, will be barred by procedural default unless the movant demonstrates cause and prejudice sufficient to excuse his failure to raise those issues previously. El-Nobani v. United States, 287 F.3d 417, 420 (6th Cir. 2002) (withdrawal of guilty plea); Peveler v. United States, 269 F.3d 693, 698-99 (6th Cir. 2001) (new Supreme Court decision issued during pendency of direct appeal); Phillip v. United States, 229 F.3d 550, 552 (6th Cir. 2000) (trial errors). Alternatively, a movant may obtain review of a procedurally defaulted claim by demonstrating his "actual innocence." Bousley v. United States, 523 U.S. 614, 622 (1998).
"[A] § 2255 motion may not be employed to relitigate an issue that was raised and considered on direct appeal absent highly exceptional circumstances, such as an intervening change in the law." Jones v. United States, 178 F.3d 790, 796 (6th Cir. 1999); see also DuPont v. United States, 76 F.3d 108, 110 (6th Cir. 1996) (same).
After a § 2255 motion is filed, it is reviewed by the Court and, "[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion." Rule 4(b), Rules Governing Section 2255 Proceedings for the United States District Courts ("§ 2255 Rules"). "If the motion is not dismissed, the judge must order the United States attorney to file an answer, motion, or other response within a fixed time, or to take other action the judge may order." Id. The movant is entitled to reply to the Government's response. Rule 5(d), § 2255 Rules. The Court may also direct the parties to provide additional information relating to the motion. Rule 7, § 2255 Rules.
"In reviewing a § 2255 motion in which a factual dispute arises, the habeas court must hold an evidentiary hearing to determine the truth of the petitioner's claims." Valentine v. United States, 488 F.3d 325, 333 (6th Cir. 2007) (internal quotation marks omitted). "[N]o hearing is required if the petitioner's allegations cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact." Id. (internal quotation marks omitted). Where the judge considering the § 2255 motion also presided over the criminal case, the judge may rely on his or her recollection of the prior case. Blanton v. United States, 94 F.3d 227, 235 (6th Cir. 1996); see also Blackledge v. Allison, 431 U.S. 63, 74 n.4 (1977) ("[A] motion under § 2255 is ordinarily presented to the judge who presided at the original conviction and sentencing of the prisoner. In some cases, the judge's ...