United States District Court, W.D. Tennessee, Western Division
H. MAYS, JR., UNITED STATES DISTRICT JUDGE
the Court are six motions. First, on October 20, 2014,
Petitioner Nuri Sermon filed an amended Motion Under 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence
by a Person in Federal Custody. (ECF No. 9 (“§
2255 Mot.”).) The Government has not filed a response
to the § 2255 Motion.
on June 20, 2016, Sermon filed a Motion of Defendant
Requesting Appointment of Counsel Pursuant to Title 18
[U.S.C.] § 3006(A) in Light of Recent Supreme Court
Decision Johnson v. United States (U.S. 2015). (ECF
No. 10 (“First Mot. for Counsel”).) Sermon refers
to Johnson v. United States, 135 S.Ct. 2551 (2015).
The Government did not respond to the First Motion for
Counsel, and the deadline for doing so has passed. L.R.
on June 20, 2016, Sermon filed a motion seeking to amend the
§ 2255 Motion. (Mot. Seeking to Amend Johnson v.
United States, 135 S.Ct. 2551 (2015), and the
Retroactivity of Welch v. United States, [136 S.Ct.
1257] (2016) on Collateral Review of 18 U.S.C. §§
922(g) & 924(e)(B)(ii) of the Armed Career Criminal Act,
to My Existing § 2255 Mot., ECF No. 11 (“Mot. to
Amend”).) The Government filed a response to the Motion
to Amend, effectively a response to Sermon's
Johnson arguments, on October 7, 2016. (Resp. of
U.S. in Opp'n to Def.'s § 2255 Mot., ECF No. 15
(“Johnson Resp.”).) In filings on
October 26, 2016, and November 4, 2016, Sermon argues in
support of the Motion to Amend based on Johnson.
(Pet'r's Amendment Pursuant to Fed.R.Civ.P. 12 and
15(a), ECF No. 18 (“Sermon Amendment”); Resp. of
Pet'r in Opp'n to the U.S. Recommendation of
[Defendant's] § 2255 Motion on Johnson
Review, ECF No. 19 (“Sermon
on October 26, 2016, Sermon filed a Motion to Request an
Extension of Time in Responding to Government's
Opposition of § 2255 Motion. (ECF No. 16 (“Mot.
for Extension of Time”).) The Government did not
respond to the Motion for Extension of Time, and the deadline
for doing so has passed. L.R. 7.2(a)(2).
on October 26, 2016, Sermon filed a Motion to Request
Permission to Amend/Supplement Pursuant to Federal Rules of
Civil Procedure 12 and 15(a). (ECF No. 17 (“Second Mot.
to Amend”).) The Government did not respond to the
Second Motion to Amend, and the deadline for doing so has
passed. L.R. 7.2(a)(2).
the Sermon Reply contains a request that the Court
“re-appoint counsel” for Sermon “with
regard to Johnson.” (Sermon Reply 1.) The
Court will refer to that request as the “Second Motion
for Counsel.” For the following reasons, the First
Motion for Counsel and Second Motion for Counsel are DENIED,
the First Motion to Amend and Second Motion to Amend are
GRANTED, the Motion for Extension of Time is GRANTED, and the
§ 2255 Motion is DENIED.
Case No. 09-20395
September 29, 2009, a federal grand jury returned a one-count
indictment against Sermon. (Indictment, ECF No. 1 in 09-
20395.) Count 1 charged Sermon, a convicted felon,
with possessing a semiautomatic pistol on or about June 29,
2007, in violation of 18 U.S.C. § 922(g). (Id.)
On October 25, 2011, Sermon entered into a plea agreement
with the Government in which he agreed to plead guilty to
Count 1. (Plea Agreement 1, ECF No. 104 in 09-20395
(“Plea Agreement”).) Following a plea colloquy,
the Court accepted Sermon's plea. (Order on Change of
Plea, ECF No. 105 in 09-20395.)
December 19, 2011, the U.S. Probation Office submitted a
Presentence Investigation Report (“PSR”). (PSR in
09-20395.) The PSR calculated Sermon's
guidelines-sentencing range using the 2011 edition of the
U.S. Sentencing Guidelines Manual (“U.S.S.G.”).
(Id. ¶ 12.)
base offense level was 20. (Id. ¶ 13.) The PSR
recommended a two-level increase pursuant to §
2K2.1(b)(4)(A) because the pistol Sermon possessed had been
stolen. (Id. ¶¶ 6, 14.) Sermon's
adjusted offense level was 22. (Id. ¶ 18.)
also recommended that Sermon be classified as an armed career
criminal under the Armed Career Criminal Act (the
“ACCA”), 18 U.S.C. § 924(e). (Id.
¶ 19.) The PSR identified five prior convictions
supporting that enhancement. First, on October 3, 1983, the
Shelby County Criminal Court sentenced Sermon to five years
in prison for robbery. (Id. ¶ 27.) Second, on
May 6, 1986, the Shelby County Criminal Court sentenced
Sermon to 35 years in prison on each of seven convictions,
four of which were for robbery with a deadly
weapon. (Id. ¶ 30.) Based on his
armed-career-criminal designation, Sermon's total offense
level was 33. (Id. ¶¶ 19, 21; see
U.S.S.G. § 4B1.4(b)(3)(B).) Sermon's
criminal-history category was Category V. (PSR ¶ 37.)
His recommended guidelines range was 210 to 262 months.
(Id. ¶ 72; see U.S.S.G. ch. 5 pt. A.)
As an armed career criminal, Sermon's statutory minimum
sentence was 180 months. 18 U.S.C. § 924(e).
was sentenced on March 23, 2012. His only objection to the
guidelines calculations was that he should receive an
adjustment for acceptance of responsibility. (Position of
Def. with Respect to Sentencing Factors ¶ 5, ECF No. 111
in 09-20395 (“Def. Resp. to PSR”).) The Court
sustained that objection and determined that a two-level
adjustment for acceptance of responsibility was warranted.
(Tr. of Sentencing Hr'g 12, ECF No. 116 in 09-20395
(“Sentencing Tr.”).) The resulting total offense
level was 31. (Id. at 13.) The resulting guidelines
range was 168 to 210 months. (Id.; see
U.S.S.G. ch. 5 pt. A.) The Court sentenced Sermon to 180
months of incarceration. (Sentencing Tr. 28; J. in Criminal
Case 2-3, ECF No. 113 in 09-20395.)
April 2, 2012, Sermon filed a Notice of Appeal. (ECF No. 115
in 09-20395.) On February 8, 2013, before the parties had
filed briefs, Sermon filed a motion to withdraw his appeal.
(Def./Appellant's Mot. to Withdraw Appeal, ECF No. 32 in
12-5362.) The Sixth Circuit granted the motion on
February 12, 2013. (Order, ECF No. 33 in 12-5362
(“Sixth Circuit Dismissal Order”).)
Case No. 13-02808
October 16, 2013, Sermon filed his original § 2255
Motion. (Mot. Under 28 U.S.C. § 2255 to Vacate, Set
Aside, or Correct Sentence by a Person in Federal Custody,
ECF No. 1.) On July 3, 2014, the Court entered an Order
Directing Movant to File an Amended § 2255 Motion. (ECF
No. 5.) The order noted that Sermon had filed “an
identical copy of his § 2255 Motion, with a different
set of exhibits, ” to challenge his conviction on a
separate matter. (Id. at 1.) The Court ordered
Sermon to file an amended § 2255 motion
“address[ing] only [his] conviction in Case Number
09-20395.” (Id. at 2.) On November 17, 2014,
Sermon filed the present § 2255 Motion.
26, 2015, the U.S. Supreme Court decided Johnson.
20, 2016, Sermon filed the Motion to Amend and the First
Motion for Counsel. On June 24, 2016, the Court entered an
Order Appointing Counsel Pursuant to the Criminal Justice
Act. (ECF No. 151 in 09-20395 (“Order Appointing
Counsel”).) The Court appointed Christopher Sullivan
“[f]or purposes of a Johnson review.”
(Id.) On July 2, 2016, Sullivan filed a Notice of
Johnson Review. (ECF No. 152 in 09-20395.) Sullivan
stated that he had completed his review and that he
“[would] not be filing anything on behalf of Mr. Sermon
pursuant to Johnson[.]” (Id.)
October 6, 2016, the Court entered an Order Directing United
States to Respond. (ECF No. 13 (“Order Directing
Gov't Resp.”).) The order directed the Government
to respond to the Motion to Amend, which contained
Sermon's Johnson challenge, within seven days.
(Id.) The Government filed its response on October
7, 2016. (Johnson Resp.)
October 26, 2016, Sermon filed the Motion for Extension of
Time, the Second Motion to Amend, and the Sermon Amendment.
On November 4, 2016, Sermon filed the Sermon Reply.
Motions for Counsel
has filed two motions requesting counsel. The First Motion
for Counsel was filed on June 20, 2016. The Court appointed
counsel on June 24, 2016. The First Motion for Counsel is
DENIED as moot.
Second Motion for Counsel, filed after Sermon's prior
Johnson counsel filed a Notice of Johnson
Review, asks the Court to “re-appoint counsel to . . .
review [Sermon's] existing § 2255 motion, with
regard to Johnson.” (Sermon Reply 1.) The
Government has taken no position on this request.
is no constitutional right to counsel in § 2255
proceedings. See, e.g., Brown v. United
States, 20 F. App'x 373, 375 (6th Cir. 2001) (citing
Pennsylvania v. Finley, 481 U.S. 551, 555 (1987));
Keathley v. United States, No. CR 04-80335, 2016 WL
7242135, at *2 (E.D. Mich. Dec. 15, 2016) (citing
Finley and Brown). The Court has broad
discretion in deciding whether to appoint counsel. See,
e.g., Childs v. Pellegrin, 822 F.2d 1382, 1384
(6th Cir. 1987). “The decision to appoint counsel for a
federal habeas petitioner is within the discretion of the
court and is required only where the interests of justice or
due process so require.” Mira v. Marshall, 806
F.2d 636, 638 (6th Cir. 1986); see also 18 U.S.C.
§ 3006A(a)(2)(B) (counsel may be appointed for persons
seeking relief under 28 U.S.C. § 2255 who are
financially eligible when the court determines “that
the interests of justice so require”).
exercising its discretion, the district court should consider
the legal complexity of the case, the factual complexity of
the case, and the petitioner's ability to investigate and
present his claims, along with any other relevant
factors.” Hoggard v. Purkett, 29 F.3d 469, 471
(8th Cir. 1994) (citations omitted); see also, e.g.,
Caldwell v. United States, No. CR 08-10029-JDB, 2014
WL 1415137, at *4 (W.D. Tenn. Apr. 14, 2014) (quoting and
has not demonstrated that appointing counsel at this time is
required by the interests of justice or by due process.
Appointed counsel has already considered Sermon's
Johnson claims. Sermon disagrees with his
counsel's conclusion, but that does not require
appointment of new counsel. The Court can assess the merits
of Sermon's Johnson claim. The Second Motion for
Counsel is DENIED.
Motions to Amend
gravamen of Sermon's First and Second Motions to Amend is
that the Court should amend the § 2255 Motion to add a
third ground: that Sermon merits relief from his sentence
based on Johnson. (See Mot. to Amend;
Second Mot. to Amend.) The Government does not argue that the
Court should deny the Motions to Amend. It simply addresses
the Johnson argument on its merits. (See
governs amendments to § 2255 petitions. See,
e.g., Oleson v. United States, 27 F. App'x
566, 568-69 (6th Cir. 2001); see also 28 U.S.C.
§ 2242 ¶ 3 (stating that an application for a
habeas writ “may be amended or supplemented as provided
in the rules of procedure applicable to civil
actions”). Because Sermon's Motions to Amend are
not made “during [or] after trial, ” Rule 15(a)
Rule 15(a)(1), “[a] party may amend its pleading once
as a matter of course” under circumstances that do not
apply here. Under Rule 15(a)(2), “[i]n all other cases,
a party may amend its pleading only with the opposing
party's written consent or the court's leave, ”
although “[t]he court should freely give leave when
justice so requires.” In determining the interests of
justice, “courts consider several factors, including
‘undue delay in filing, lack of notice to the opposing
party, bad faith by the moving party, repeated failure to
cure deficiencies by previous amendments, undue prejudice to
the opposing party, and futility of amendment.'”
Oleson, 27 F. App'x at 569 (quoting Coe v.
Bell, 161 F.3d 320, 341 (6th Cir. 1998)).
“Furthermore, courts have interpreted the language in
Rule 15(a) as setting forth a ‘liberal policy of
permitting amendments to ensure the determination of claims
on their merits.'” Id. (quoting Marks
v. Shell Oil Co., 830 F.2d 68, 69 (6th Cir. 1987)).
considering the relevant factors, the Court GRANTS the First
Motion to Amend and Second Motion to Amend to the extent they
ask the Court to consider Sermon's Johnson
argument. The Court will consider that argument on its
Motion for Extension of Time
Motion for Extension of Time seeks an extension of his
deadline for filing a reply in support of the § 2255
Motion. Sermon filed the Motion for Extension of Time after
the deadline for filing a reply. Rule 6(b)(1)(B) governs the
motion. Rule 6(b)(1)(B) provides that, “[w]hen an act
may or must be done within a specified time, the court may,
for good cause, extend the time . . . on motion made after
the time has expired if the party failed to act because of
neglect' under Rule 6(b) is a somewhat ‘elastic
concept.'” Pioneer Inv. Servs. Co. v. Brunswick
Assocs. Ltd., 507 U.S. 380, 392 (1993) (quoting 4A
Charles Alan Wright & Arthur Miller, Federal Practice
and Procedure § 1165 at 479 (2d ed. 1987)).
Determining whether a party's neglect is excusable
“is at bottom an equitable [decision], taking account
of all relevant circumstances surrounding the party's
omission.” Id. at 395 (footnote omitted). A
court making an excusable-neglect determination should
balance five “principal” factors: “(1) the
danger of prejudice to the nonmoving party, (2) the length of
the delay and its potential impact on judicial proceedings,
(3) the reason for the delay, (4) whether the delay was
within the reasonable control of the moving party, and (5)
whether the late-filing party acted in good faith.”
Nafziger v. McDermott Int'l Inc., 467 F.3d 514,
522 (6th Cir. 2006) (citing Pioneer Inv. Servs., 507
U.S. at 395).
considering these factors, the Court finds that Sermon's
failure to file the Motion for Extension of Time by the
deadline was due to excusable neglect. The Government will
not be prejudiced if the Court considers Sermon's
materials. Granting the Motion for Extension of Time causes
no delay and will not negatively affect these proceedings.
Under the circumstances, the Court accepts that Sermon
requested the extension in good faith. Based on its
excusable-neglect finding, the Court finds good cause for
Sermon's requested extension of time.
Motion for Extension of Time is GRANTED. The Court will
consider the Johnson-related material in the Sermon
Amendment and the Sermon Reply in deciding ...