United States District Court, W.D. Tennessee, Western Division
ORDER DENYING MOTION FOR DISCOVERY (ECF NO. 10)
ORDER DENYING MOTION FOR SANCTIONS (ECF NO. 15) ORDER TERMINATING MOTION AT ECF NO. 19
ORDER DENYING MOTIONS FOR EVIDENTIARY HEARING & SUBPOENA (ECF NOS. 21 & 22) ORDER DENYING & DISMISSING MOTION PURSUANT TO 28 U.S.C. § 2255 ORDER DENYING CERTIFICATE OF APPEALABILITY
ORDER CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH AND ORDER DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
S. THOMAS ANDERSON, District Judge.
On November 15, 2013, Defendant Derrick Johnson filed a motion pursuant to 28 U.S.C. § 2255 alleging that trial counsel provided ineffective assistance. (ECF No. 1.) On September 23, 2014, the Court directed the United States to respond to the motion to vacate. (ECF No. 9.)
On October 20, 2014, Johnson filed a motion seeking discovery. (ECF No. 10.) "A habeas petitioner, unlike the usual civil litigant in federal court, is not entitled to discovery as a matter of ordinary course." Bracy v. Gramley, 520 U.S. 899, 904 (1997). Rule 6(a) of the Section 2255 Rules provides, in pertinent part, that "[a] judge may, for good cause, authorize a party to conduct discovery under the Federal Rules of Criminal Procedure or Civil Procedure, or in accordance with the practices and principles of law" (emphasis added); see also Rule 6(b), Section 2255 Rules ("A party requesting discovery must provide reasons for the request."). The Supreme Court has described the circumstances under which "good cause" may be found:
In Harris [ v. Nelson, 394 U.S. 286, 300 (1969)], we stated that "where specific allegations before the court show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is... entitled to relief, it is the duty of the court to provide the necessary facilities and procedures for an adequate inquiry."... Habeas Corpus Rule 6 is meant to be "consistent" with Harris.
Bracy, 520 U.S. at 908-09; see also Lynott v. Story, 929 F.2d 228, 232-33 (6th Cir. 1991). "The burden of demonstrating the materiality of the information requested is on the moving party." Stanford v. Parker, 266 F.3d 442, 460 (6th Cir. 2001). As the Sixth Circuit has emphasized:
Rule 6 does not "sanction fishing expeditions based on a petitioner's conclusory allegations." Rector v. Johnson, 120 F.3d 551, 562 (5th Cir. 1997); see also Stanford, 266 F.3d at 460. "Conclusory allegations are not enough to warrant discovery under [Rule 6]; the petitioner must set forth specific allegations of fact." Ward v. Whitley, 21 F.3d 1355, 1367 (5th Cir. 1994).
Williams v. Bagley, 380 F.3d 932, 974 (6th Cir. 2004).
Johnson has not satisfied his burden of demonstrating that it is necessary or appropriate to permit discovery. The motion for discovery (ECF No. 10) is DENIED.
On December 22, 2014, Johnson filed a motion for sanctions arising from the United States' second request for an extension of time to respond. (ECF No. 15.) The Court has previously determined that good cause existed for granting the second motion for an extension of time. The motion for sanctions (ECF No. 15) is DENIED.
On January 13, 2015, the United States filed an answer contending that Defendant's motion is without merit. (ECF No. 17.) On February 10, 2015, Johnson filed a reply to the United States' answer. (ECF No. 19.) Johnson captioned his reply as a motion. ( Id. ) The Clerk is directed to terminate the pending motion at ECF No. 19.
On March 23, 2015, Johnson filed a motion seeking an evidentiary hearing and a motion for a witness subpoena. (ECF Nos. 21 & 22.) The Court has concluded that an evidentiary hearing is not necessary to resolve this matter. The motions for a hearing and a witness subpoena (ECF Nos. 21 & 22) are DENIED. For the reasons that follow, Johnson's § 2255 motion is DENIED.
I. BACKGROUND TO MOTION
On February 11, 2009, a federal grand jury in the Western District of Tennessee returned a superseding indictment against Defendant Johnson charging him with one count of possession of a firearm after a felony conviction, in violation of 18 U.S.C. § 922(g) (Count One). (Criminal ("Cr.") ECF No. 16.)
A jury trial commenced on December 14, 2009. (Cr. ECF No. 60.) On December 16, 2009, the jury returned a guilty verdict. (Cr. ECF Nos. 64-65.) On June 1, 2010, the Court conducted a sentencing hearing and imposed a sentence of 120 months imprisonment. (Cr. ECF No. 79.) Judgment was entered on June 3, 2010. (Cr. ECF No. 80.)
Johnson appealed, contending that Court erred in ordering his federal and state court sentences to be served consecutively, and the United States cross-appealed, contending that the Court erred in failing to sentence Johnson as an armed career criminal under 18 U.S.C. § 924(c). United States v. Johnson, 675 F.3d 1013 (6th Cir. 2012). The United States Court of Appeals for the Sixth Circuit determined that Johnson was an armed career criminal and vacated Johnson's sentence. ( Id. )
On remand, the Court sentenced Johnson to 180 months imprisonment as an armed career criminal, to be served concurrently with his state-court sentence. (Cr. ECF No. 104.) The amended judgment was entered on September 20, 2012. (Cr. ECF No. 105.) Johnson appealed, contending that his conviction for robbery with a deadly weapon under Tennessee law did not qualify as a violent felony and that the United States failed to meet its burden in establishing that it did. United States v. Johnson, 530 Fed.App'x 528 (2013). On July 23, 2013, the United States Court of Appeals for the Sixth Circuit affirmed Defendant's sentence. ( Id. )
II. STANDARD OF REVIEW
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) (citation and internal quotation marks omitted).
A § 2255 motion is not a substitute for a direct appeal. See Bousley v. United States, 523 U.S. 614, 621 (1998). "[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 ...