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King v. United States

United States District Court, W.D. Tennessee, Western Division

March 30, 2015

MARK KING, Movant,
v.
UNITED STATES OF AMERICA, Respondent. Cr. No. 2:09-cr-20003-BBD

ORDER 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

S. THOMAS ANDERSON, 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 ("Amended § 2255 Motion") filed by Movant, Mark King, Bureau of Prisons register number XXXXX-XXX, an inmate at the Federal Correctional Institution Medium in Forrest City, Arkansas (§ 2255 Mot., King v. United States, No. 2:12-cv-02016-STA-dkv (W.D. Tenn.), ECF No. 1) and King's proposed second amendment to his § 2255 Motion ("Second Amended § 2255 Motion") (2d Am. § 2255 Mot., id., ECF No. 27). For the reasons stated below, the Court DENIES leave to amend and DENIES Movant's § 2255 Motion.

I. BACKGROUND

A. Case Number 09-20003

On January 20, 2009, a federal grand jury returned a single-count indictment charging King, a convicted felon, with possessing a Cobra.380 caliber revolver on or about May 31, 2008, in violation of 18 U.S.C. § 922(g). (Indictment, United States v. King, No. 2:09-cr-20003-BBD (W.D. Tenn.), ECF No. 1.) The factual basis for the charge is stated in the presentence report ("PSR"):

5. At approximately 5:50 p.m. on May 31, 2008, members of the Organized Crime Unit of the Memphis Police Department executed a search warrant at Mark King's residence, located at 1541 Maplewood in Memphis, Tennessee. As the detectives arrived, they observed Mark King pull up to the residence with his girlfriend, Tekita Humphrey. He was detained as he exited his vehicle.
6. The detectives forced entry into the residence and encountered an attacking pit bull, which they had to shoot. The search of the residence revealed the following items:
- one 12-gauge shotgun shell in a closet
- three 12-gauge shotgun shells in the dresser in the bedroom
- five.38 caliber rounds in the dresser
- a Cobra.380 caliber handgun, loaded with eight rounds, under the dresser
- mail addressed to King at 1541 Maplewood
7. A check revealed that King is a convicted felon. He declined to cooperate during an interview with detectives. Humphrey was interviewed by detectives on May 31, 2008 and advised that she had no knowledge of the handgun.
8. King's firearm is described as a Cobra, model CA-380, .380 caliber pistol, serial number CP011371. According to a special agent with the Bureau of Alcohol, Tobacco, Firearms, or [sic] Ammunition [sic], this firearm was not manufactured in Tennessee; therefore, it if was received and/or possessed in the State of Tennessee, it traveled in or affected interstate and/or foreign commerce.

(PSR ¶¶ 5-8.)

Pursuant to a written Plea Agreement, King appeared before then-United States District Judge Bernice B. Donald on June 29, 2009, to plead guilty to the sole count of the Indictment. (Min. Entry, United States v. King, No. 2:09-cr-20003-BBD (W.D. Tenn.), ECF No. 29; Plea Agreement, id., ECF No. 30 (sealed); Change of Plea Hr'g Tr., id., ECF No. 48.) At a hearing on February 22, 2010, Judge Donald sentenced King as an armed career criminal to a term of imprisonment of one hundred eighty months, to be followed by a three-year period of supervised release. (Min. Entry, id., ECF No. 45; Sentencing Hr'g Tr., id., ECF No. 49.)[1] Judgment was entered on February 23, 2010. (J. in a Criminal Case, United States v. King, No. 2:09-cr-20003-BBD (W.D. Tenn.), ECF No. 46.) King did not take a direct appeal, having waived the right to do so.

B. Case Number 12-2016

On January 10, 2012, King filed a pro se Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody ("§ 2255 Motion"), accompanied by a legal memorandum. (§ 2255 Mot., King v. United States, No. 2:12-cv-02016-STA-dkv (W.D. Tenn.), ECF No. 1; Mem. of Law in Supp. of § 2255 Mot., id., ECF No. 1-1.) The issues presented in King's § 2255 Motion are as follows:

1. "Ineffective Assistance of Counsel" (§ 2255 Mot. at PageID 4; id., ECF No. 1; see also Mem. of Law in Supp. of § 2255 Mot. at 2-3, id., ECF No. 1-1);
2. "Actual Innocence" (§ 2255 Mot. at PageID 5, id., ECF No. 1; see also Mem. of Law in Supp. of § 2255 Mot. at 3, id., ECF No. 1-1);
3. "Plea" (§ 2255 Mot. at PageID 7, id., ECF No. 1; see also Mem. of Law in Supp. of § 2255 Mot. at 3-4); and
4. "Search in Violation of United States Constitution" (§ 2255 Mot. at PageID 8, id., ECF No. 1). On August 6, 2012, King filed another Memorandum of Law in Support of Motion to

Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody Pursuant to 28 U.S.C. § 2255, which added several additional issues. (2d Mem. of Law in Supp. of § 2255 Mot., id., ECF No. 4.) In an order issued on June 21, 2013, the Court granted leave to amend and directed the Government to respond to the § 2255 Motion, as amended. (Order, id., ECF No. 6.)

After the Order to respond had issued, King filed several proposed amendments to his § 2255 Motion. On July 31, 2013, King filed a document, titled "Pursuant to 28 U.S.C. § 2255 to Vacate, or Set Aside the Sentence, Petitioner Supplements' His Motion Seeking Judicial Review of Whether Penalty Enhancement Provision § 924(e) was Unconstitutionally Applied in Light of Recent Supreme Court Decision(s) Announced in Alleyne v. United States, (U.S., 2013); and Descamps v. United States (U.S., 2013)." (1st Suppl. to § 2255 Mot., id., ECF No. 9.) On August 26, 2013, King filed a Motion to Supplement § 2255. (2d Suppl. to § 2255 Mot., id., ECF No. 11.)

In an order issued on November 7, 2013, the Court denied King's motions to supplement without prejudice to his right to file an amended § 2255 motion on the official form. (Order, id., ECF No. 15.) The order included the following instructions to Movant:

Any amended § 2255 motion is due thirty (30) days from the date of entry of this order and must incorporate every issue Movant seeks to present in this action. The form must be completely filled out and must be signed by Movant under penalty of perjury. Movant need not resubmit the issues presented in the original § 2255 motion and, instead, can supplement that filing with the issues presented in the filings made on August 6, 2012; July 31, 2013; and August 26, 2013. If Movant needs additional time to file an amended motion, he may file a motion seeking an extension of time on or before the due date for his amendment. Should Movant fail to file an amended motion within the time specified, the Court

will proceed on the issues presented in the original § 2255 motion (ECF No. 1). ( Id. at 3.)[2] King was also instructed "to file a copy of any written proof that the Clerk's office rejected his timely § 2255 motion." (Order at 4, King v. United States, No. 2:12-cv-02016-STA-dkv (W.D. Tenn.), ECF No. 15.) The Government's obligation to respond to the § 2255 Motion was stayed until after King complied with the Court's order and the Court notified the Government that the running of its time to respond had resumed. ( Id. )

On November 6, 2013, King filed a motion, titled "Petitioner Move that an Order Issue Granting Evidentiary Hearing to Correct the Illegal and Unconstitutional Sentence Imposed in Violation of Penalty Enhancement 18 U.S.C. § 924(e)." (Mot. for an Evidentiary Hr'g, id., ECF No. 14.) On January 3, 2014, Movant filed his "Motion to Supplement His Current Pending § 2255 and Amend His Application to Vacate, Set Aside, His Sentence" and attached amendment on the official form. (Mot. for Leave to Supp., id., ECF No. 18; Am. § 2255 Mot., id., ECF No. 18-1.) The official form did not present any new issues but, instead, referred to the Motion to Supplement. On April 9, 2014, Movant filed an "Application to Amend and Supplement Pending Motion." (Appl. to Amend & Suppl. Pending Mot., id., ECF No. 20.) On May 21, 2014, King filed "Petitioner(s) Motion to Amend and Supplement His § 2255 Pursuant to Recent Decision United States v. Barbour, No. 13-5653 (6th Cir. 2014)." (2d Mot. to Amend & Suppl. Pending Mot., id., ECF No. 21.)

In an order issued on June 9, 2014, the Court denied the motion for an evidentiary hearing and denied the various motions to amend and supplement because King had not complied with the order to file his proposed amendments on the official form. (Order, id., ECF No. 22.) The Order also lifted the stay on the Government's obligation to respond to the original § 2255 Motion and instructed the Government to file its response within twenty-three days. ( Id. at 6.) The Order specified that "[t]he response should address the timeliness of Movant's § 2255 Motion" and that "[t]he only substantive claim that requires a response is Claim 3, that trial counsel coerced Movant to plead guilty." ( Id. ) Finally, the Order gave Movant a last opportunity to submit any amendment on the official form. ( Id. at 7.) The deadline for any amendment was thirty days from the date of entry of the Order. ( Id. )

On June 25, 2014, 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"). (Answer, King v. United States, No. 2:12-cv-02016-STA-dkv (W.D. Tenn.), ECF No. 23.) King filed his Reply, which was titled "Petitioner's Motion for Traverse, " on July 29, 2014. (Reply, id., ECF No. 26.)

Also on July 29, 2014, King filed another amended § 2255 motion on the official form ("Second Amended § 2255 Motion"), accompanied by a legal memorandum. (2d Am. § 2255 Mot., id., ECF No. 27; Mem. of Law in Supp. of 2d Am. § 2255 Mot., id., ECF No. 27-1.) The Court declines to consider the Second Amended § 2255 Motion. The Motion is late, having been signed on July 24, 2014, well more than thirty days after the entry of the Court's Order on June 9, 2014.[3] The Second Amended § 2255 Motion also does not comply with the Court's Order, which specified that the new issues must be presented on the official form. Just like his previous amendment, the Second Amended § 2255 Motion does not list the new issues on the official form but, instead, refers to an attached memorandum. ( See 2d Am. § 2255 Mot. at PageID 138, 139, 141, 142, id., ECF No. 27.) The supporting memorandum does not itemize the new issues but, instead, discusses in general terms why King was not properly sentenced under the ACCA. ( See Mem. in Supp. of 2d Am. § 2255 Mot., id., ECF No. 27-1.) The legal memorandum does not rely on the new decisions cited in the proposed amendments that had previously been filed and, instead, relies on judicial decisions that were available when King was sentenced and when he filed his original § 2255 Motion.[4] Therefore, the only issues to be considered are those in the original § 2255 Motion.

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 ...


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