Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Sermon v. United States

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

March 13, 2017

NURI SERMON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          SAMUEL H. MAYS, JR., UNITED STATES DISTRICT JUDGE

         Before 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.[1]

         Second, 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. 7.2(a)(2).

         Third, 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 Reply”).)[2]

         Fourth, 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).

         Fifth, 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).

         Sixth, 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.

         I. BACKGROUND

         A. Case No. 09-20395

         On September 29, 2009, a federal grand jury returned a one-count indictment against Sermon. (Indictment, ECF No. 1 in 09- 20395.)[3] 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.)

         On 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.)

         Sermon's 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.)

         The PSR 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, [4] four of which were for robbery with a deadly weapon.[5] (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).

         Sermon 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.)

         On 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.[6]) The Sixth Circuit granted the motion on February 12, 2013. (Order, ECF No. 33 in 12-5362 (“Sixth Circuit Dismissal Order”).)

         B. Case No. 13-02808

         On 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.

         On June 26, 2015, the U.S. Supreme Court decided Johnson.

         On June 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.)

         On 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.)

         On 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.

         II. SUBSIDIARY MOTIONS

         A. Motions for Counsel

         Clemons 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.

         The 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.

         There 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”).

         “In 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 applying Hoggard).[7]

         Sermon 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.

         B. Motions to Amend

         The 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 Johnson Resp.)

         Rule 15 governs amendments to § 2255 petitions.[8] 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) applies.

         Under 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)).

         After 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 merits.

         C. Motion for Extension of Time

         Sermon's 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.[9] 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 excusable neglect.”

         “‘[E]xcusable 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).

         After 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.

         The 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.