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Clemons v. United States

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

March 15, 2017

MORRIS CLEMONS, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

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

         Before the Court are seven motions. First, on December 30, 2011, Petitioner Morris Clemons filed a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. (ECF No. 1 (“§ 2255 Mot.”).) The Government filed a response on July 20, 2012. (Resp. in Opp'n to Mot. Filed Pursuant to 28 U.S.C. § 2255, ECF No. 7 (“§ 2255 Resp.”).)

         Second, on July 6, 2012, before filing its § 2255 Response, the Government filed a motion requesting an extension of its deadline to file a response. (Mot. for Extension of Time to Resp. to Mot. to Vacate Pursuant to 28 U.S.C. § 2255, ECF No. 5 (“Mot. for Extension of Time”).) Clemons has not filed a response to the Motion for Extension of Time, and the deadline for doing so has passed. L.R. 7.2(a)(2).

         Third, on August 10, 2012, Clemons filed a motion requesting “an order granting [an] evidentiary hearing because the Government [cannot] meet its burden of proof, to establish the Armed Career Criminal Act applies” to Clemons. (Pet'r's Mot. for Traverse 1, ECF No. 8 (“Traverse Mot.”).) The Government has not filed a response to the Traverse Motion, and the deadline for doing so has passed. L.R. 7.2(a)(2).

         Fourth, on August 20, 2012, Clemons filed a Motion to Supplement and Amend § 2255 Habeas with Recent Sixth Circuit Decision Announced in [Jones v. United States, 689 F.3d 621 (6th Cir. 2012)]. (ECF No. 9 (“First Mot. to Suppl.”).) The Government has not filed a response to the First Motion to Supplement, and the deadline for doing so has passed. L.R. 7.2(a)(2).

         Fifth, on July 23, 2013, Clemons filed a Motion to Supplement § 2255 Petition Based Upon Recent Decision(s) Announced by the Supreme Court of the United States. (ECF No. 10 (“Second Mot. to Suppl.”).) The Government has not filed a response to the Second Motion to Supplement, and the deadline for doing so has passed. L.R. 7.2(a)(2).

         Sixth, on May 27, 2014, Clemons filed a Supplemental Motion and Petition to Amend [§] 2255 Habeas Corpus Memorandum in Support of Petitioner's Motion to Vacate, Set Aside, or Correct the Conviction and Sentence. (ECF No. 11 (“Third Mot. to Suppl.”).) The Gov- ernment has not filed a response to the Third Motion to Supplement, and the deadline for doing so has passed. L.R. 7.2(a)(2).

         Seventh, on September 17, 2015, Clemons filed a Motion to Supplement § 2255 Petition for Resentencing in Light of Recent Supreme Court Decision [Johnson v. United States, 135 S.Ct. 2551 (2015)]. (ECF No. 12 (“Fourth Mot. to Suppl.”).) The Government filed a response to the Fourth Motion to Supplement on September 20, 2016. (Supp. Resp. in Opp'n to Mot. Filed Pursuant to 28 U.S.C. § 2255, ECF No. 15 (“First Johnson Resp.”).)[1] Pursuant to the Court's order for additional briefing, the Government filed an additional response on October 5, 2016. (Order, ECF No. 16 (“Order for Additional Briefing”); Second Suppl. Resp. in Opp'n to Mot. Filed Pursuant to 28 U.S.C. § 2255, ECF No. 18 (“Second Johnson Resp.”).) Clemons has not filed a reply in support of the Fourth Motion to Supplement, and the deadline for filing a reply has passed. (Order for Additional Briefing 4 (setting reply deadline).)

         For the reasons stated below, the Government's Motion for Extension of Time to File a Response is GRANTED. The First, Second, Third, and Fourth Motions to Supplement are GRANTED as to their requests that this Court consider case law. The Fourth Motion to Supplement is DENIED as moot as to its request that the Court appoint counsel for Clemons to pursue his Johnson challenge. The Traverse Motion is DENIED. The § 2255 Motion is DENIED.

         The Court GRANTS a certificate of appealability as to whether Clemons's 1987 convictions for attempted robbery are violent felonies under the ACCA. The Court DENIES a certificate of ap-pealability as to all other issues raised in the § 2255 Motion.

         I. BACKGROUND

         A. Case Number 08-20166

         On May 16, 2008, a federal grand jury returned a single-count indictment charging Clemons, a convicted felon, with possessing a semiautomatic pistol, on or about December 11, 2007, in violation of 18 U.S.C. § 922(g). (Indictment, ECF No. 1 in 08-20166.)[2] On April 8, 2009, after a trial, a jury found Clemons guilty. (Jury Verdict, ECF No. 49 in 08-20166 (“Jury Verdict”).)

         Before Clemons's sentencing hearing, the U.S. Probation Office prepared a Presentence Investigation Report. (Presentence Investigation Report in 08-20166 (“PSR”).) The PSR calculated Clemons's guidelines-sentencing range pursuant to the 2008 edition of the U.S. Sentencing Commissions Guidelines Manual (“U.S.S.G.”). (PSR ¶ 11.)

         Clemons's base offense level was 20. (Id. ¶ 12 (citing U.S.S.G. § 2K2.1).) The PSR stated that Clemons was an armed career criminal under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), and subject to a sentencing enhancement. (Id. ¶ 18 (citing U.S.S.G. § 4B1.4).) The PSR stated that Clemons “has at least three prior convictions for [violent felonies], ” but did not state the convictions on which it based that claim.[3] (Id.) Based on his armed-career-criminal status, Clemons's total offense level was 33. (Id. ¶ 20 (citing U.S.S.G. § 4B14(b)(3)(B)).)

         After reviewing Clemons's criminal history, the PSR stated that his listed convictions resulted in 4 criminal-history points, leading to a criminal-history category of III. (Id. ¶ 30 (citing U.S.S.G. § 5A).) Because Clemons qualified as an armed career criminal, however, his criminal-history category was IV. (Id. ¶ 31 (citing U.S.S.G. § 4B1.4(c)(3)).)

         Clemons's recommended guidelines-sentencing range, based on a total offense level of 33 and a criminal-history category of IV, was 188 to 235 months. (Id. ¶ 56; see U.S.S.G. ch. 5 pt. A.) His statutory minimum sentence was 180 months. (PSR ¶ 55 (citing 18 U.S.C. §§ 922(g), 924(e)).)

         At his sentencing on July 23, 2009, Clemons did not object to the PSR. (Position of Def. with Respect to Sentencing Factors and Sentencing Mem. 1, ECF No. 57 in 08-20166 (“Clemons PSR Resp.”).) The Court found that Clemons was an armed career criminal. (Hr'g Tr. 28, ECF No. 63 in 08-20166 (“Sentencing Tr.”).) The Court sentenced Clemons to 188 months in prison. (Id. at 38.)

         On August 3, 2009, Clemons filed a Notice of Appeal. (ECF No. 61 in 08-20166.) On appeal, Clemons argued that the trial evidence was insufficient to support his conviction. (See, e.g., Br. of Appellant/Def. 10-20, United States v. Clemons, Case No. 09-5888 (6th Cir. Mar. 29, 2010) (“Clemons Appeal Brief”).) On July 20, 2011, the Sixth Circuit affirmed the conviction. United States v. Clemons, 427 F.App'x 457, 461 (6th Cir. 2011).

         B. Case Number 11-03140

         On December 30, 2011, Clemons filed the § 2255 Motion. (§ 2255 Mot.) The Motion states two grounds for relief. Ground One is ineffective assistance of counsel. (Id. at PageID 4; see also Mem. in Supp. of Pet'r's Mot. to Vacate, Set Aside or Correct the Conviction and Sentence Pursuant to 28 U.S.C. § 2255 at 5-9, ECF No. 1-1 (“Mem. ISO § 2255 Mot.”).) Ground Two is that Clemons's “sentence being enhanced was [u]nconstitutional as applied.” (§ 2255 Mot. at PageID 4.)

         Between August 2012 and May 2014, Clemons filed three motions seeking to supplement the § 2255 Motion. (See generally First Mot. to Suppl.; Second Mot. to Suppl.; Third Mot. to Suppl.) Each cites case law to support the § 2255 Motion. The key cases cited are (1) Jones; (2) Descamps v. United States, 133 S.Ct. 2276 (2013); and (3) United States v. Barbour, 750 F.3d 535 (6th Cir. 2014).

         On August 3, 2015, Clemons filed a motion titled, “In Light of Recent Supreme Court Decision [Johnson], Defendant Move This Honorable Court [to] Issue an Order for Appointment of Counsel to Assist in Filing the Necessary Motion to Correct the Illegal Sentence Imposed, Due to the Invalidation of the Residual Clause.” (ECF No. 74 in 08-20166.)[4] That motion requested counsel for Clemons, to help him file a motion asserting that the Court should vacate his sentence based on Johnson. (Id. at 1.) On September 17, 2015, Clemons filed the Fourth Motion to Supplement. That motion requested that he be allowed “to supplement his § 2255 motion in light of [Johnson].” (Fourth Mot. to Suppl. 1.) It also repeated Clemons's request that “appointment of counsel be approved in order to further assist [Clemons] in his constitutional endeavors.” (Id. at 1-2.)

         On June 24, 2016, the Court entered an Order Appointing Counsel Pursuant to the Criminal Justice Act. (ECF No. 75 in 08-20166 (“Order Appointing Counsel”).) That order appointed Corliss Shaw as counsel for Clemons “[f]or purposes of a Johnson review.” (Id.)

         On July 2, 2016, Shaw filed a Notice of Johnson Review. (ECF No. 76 in 08-20166 (“Not. of Johnson Review”).) Shaw reported that she had completed her review and that her office “[would] not be filing anything on behalf of Mr. Clemons pursuant to Johnson[.]” (Id.) Shaw also reported that she had “communicated” her review to Clemons “on July 1, 2016 by letter sent via the U.S. Postal Service.” (Id.)

         On September 13, 2016, the Court entered an order directing the Government to respond to the Fourth Motion to Supplement. (Order Directing U.S. to Resp., ECF No. 14.) The Government filed its First Johnson Response on September 20, 2016. (First Johnson Resp.) On September 21, 2016, the Court entered an order requesting additional Government briefing. (Order for Additional Briefing.) The Government filed its Second Johnson Response on October 5, 2016. (Second Johnson Resp.)

         II. SUBSIDIARY MOTIONS

         A. Motion for Extension of Time

         Rule 6(b)(1)(A) governs the Motion for Extension of Time.[5]Under Rule 6(b)(1)(A), “[w]hen an act may or must be done within a specified time, the court may, for good cause, extend the time . . . with or without motion or notice if . . . a request is made, before the original time or its extension expires[.]” The Court originally ordered the Government to respond to the § 2255 Motion by July 8, 2012. (Order Directing U.S. to Respond, ECF No. 3.) Because July 8 was a Sunday, the Government's response deadline, under Rule 6(a)(1)(C), was July 9, 2012. The Motion for Extension of Time, filed on July 6, 2012, was timely.

         The Motion for Extension of Time states that the Government attorney then responsible for this case filed his appearance after the Court directed the Government to respond to the § 2255 Motion. (Motion for Extension of Time ¶¶ 2-3.) The attorney did not receive ECF notification of the Court's order. (Id. ¶ 3.) Clemons did not respond to the Motion for Extension of Time, and will suffer no prejudice if the Court considers the § 2255 Response. For good cause shown, the Motion for Extension of Time is GRANTED. The Court will consider the § 2255 Response.

         B. Motions to Supplement and Request for Counsel in Fourth Motion to Supplement

         Each Motion to Supplement addresses cases decided after Clemons filed the § 2255 Motion. The Government disagrees with Clemons about the import of these decisions, but does not object to the Motions to Supplement. There is no reason not to consider the case law that Clemons presents. Indeed, some cases that Clemons presents, such as Johnson, are binding Supreme Court precedent that this Court must consider. The Court GRANTS the Motions to Supplement to the extent they request that the Court consider the cited case law.

         The Fourth Motion to Supplement requests appointed counsel to help Clemons pursue a Johnson-related challenge to his sentence. After Clemons filed the Fourth Motion to Supplement, the Court entered the Order Appointing Counsel. As discussed above, Corliss Shaw was the appointed counsel “[f]or purposes of a Johnson review, ” and she reported that she would not be filing anything on Clemons's behalf based on Johnson. The Court DENIES as moot this portion of the Fourth Motion to Supplement.

         C. Traverse Motion

         The Traverse Motion requests “an order granting [an] evidentiary hearing” to address the Court's finding that Clemons qualifies as an armed career criminal. (Traverse Mot. 1.) “If a habeas petitioner presents a factual dispute, then ‘the habeas court must hold an evidentiary hearing to determine the truth of the petitioner's claims.'” Pola v. United States, 778 F.3d 525, 532 (6th Cir. 2015) (quoting Huff v. United States, 734 F.3d 600, 607 (6th Cir. 2013)).

         The § 2255 Motion argues that Clemons received ineffective assistance of counsel and that he does not qualify as an armed career criminal. As discussed below, both issues turn on questions of law that “the motion and the files and records of the case conclusively” resolve. 28 U.S.C. § 2255(b). No evidentiary hearing is needed. The Traverse Motion is DENIED.

         III. LEGAL STANDARDS

         A. Section 2255 Motions

         Clemons seeks relief under 28 U.S.C. § 2255. (§ 2255 Mot.) Under § 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 sentence was in excess of the maximum authorized by law . . . may move the court which imposed the sentence to vacate, set aside or correct the sentence.

28 U.S.C. § 2255(a).

         “To succeed on a § 2255 motion, a prisoner in custody must show ‘(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.'” McPhearson v. United States, 675 F.3d 553, 558-59 (6th Cir. 2012) (quoting Mallett v. United States, 334 F.3d 491, 496-97 (6th Cir. 2003)).

         A prisoner must file his § 2255 motion within one year of the latest of:

(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2255(f).

         A § 2255 motion “‘is not a substitute for a direct appeal.'” Ray v. United States, 721 F.3d 758, 761 (6th Cir. 2013) (quoting Regalado v. United States, 334 F.3d 520, 528 (6th Cir. 2003)). “[C]laims not raised on direct appeal, ” which are thus procedurally defaulted, “may not be raised on collateral review unless the petitioner shows cause and prejudice.” Massaro v. United States, 538 U.S. 500, 504 (2003) (citing cases); see also, e.g., Jones v. Bell, 801 F.3d 556, 562 (6th Cir. 2015) (quoting Wainwright v. Sykes, 433 U.S. 72, 84 (1977)).[6]

         In the procedural-default context, the cause inquiry “‘ordinarily turn[s] on whether . . . some objective factor external to the defense impeded counsel's efforts'” to raise the issue on direct appeal. Ambrose v. Booker, 684 F.3d 638, 645 (6th Cir. 2012) (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)) (alteration and ellipses in Ambrose); see also United States v. Frady, 456 U.S. 152, 167-68 (1982) (cause-inquiry standards in § 2254 cases apply to § 2255 cases). “[F]or cause to exist, an ‘external impediment, whether it be government interference or the reasonable unavailability of the factual basis for the claim, must have prevented petitioner from raising the claim.'” Bates v. United States, 473 F.App'x 446, 448-49 (6th Cir. 2012) (quoting McCleskey v. Zant, 499 U.S. 467, 497 (1991)) (emphasis removed).

         For the prejudice inquiry to excuse default, a petitioner must show “‘actual prejudice' resulting from the errors of which he complains.” Frady, 456 U.S. at 168; see also Ambrose, 684 F.3d at 649.

         Ineffective assistance of counsel can constitute cause excusing procedural default. Where a petitioner claims that a procedural default occurred due to ineffective assistance of counsel, “relief under § 2255 [is] available subject to the standard of Strickland v. Washington, [466 U.S. 668 (1984)].” Grant v. United States, 72 F.3d 503, 506 (6th Cir. 1996); see also Bell, 801 F.3d at 562. Ineffective assistance of counsel, under the Strickland standard, can also serve as an independent ground for § 2255 relief. See, e.g., Campbell v. United States, 686 F.3d 353, 357 (6th Cir. 2012). Clemons's motion implicates both aspects of ineffective assistance.

         To establish ineffective assistance of counsel, “[f]irst, the defendant must show that counsel's performance was deficient. . . . Second, the defendant must show that the deficient performance prejudiced the defense.” Strickland, 466 U.S. at 687. “Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.” Id.

         To demonstrate deficient performance by counsel, a petitioner must show that “counsel's representation fell below an objective standard of reasonableness.” Id. at 688. In considering an ineffective-assistance claim, a court “must apply a ‘strong presumption' that counsel's representation was within the ‘wide range' of reasonable professional assistance. . . . The challenger's burden is to show ‘that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.'” Harrington v. Richter, 562 U.S. 86, 104 (2011) (quoting Strickland, 466 U.S. at 687, 689).

         To demonstrate prejudice, a petitioner must establish “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. “‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.'” Id. “In assessing prejudice under Strickland, the question is not whether a court can be certain counsel's performance had no effect on the outcome or whether it is possible a reasonable doubt might have been established if counsel acted differently. . . . The likelihood of a different result must be substantial, not just conceivable.” Richter, 562 U.S. at 111-12 (citing Wong v. Bel-montes, 558 U.S. 15, 27 (2009); Strickland, 466 U.S. at 693).

         “[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.” Strickland, 466 U.S. at 697. If a reviewing court finds a lack of prejudice, it need not determine whether, in fact, counsel's performance was deficient. Id.

         “Surmounting Strickland's high bar is never an easy task.” Padilla v. Kentucky, 559 U.S. 356, 371 (2010) (citing Strickland, 466 U.S. at 689, 693).

An ineffective-assistance claim can function as a way to escape rules of waiver and forfeiture and raise issues not presented at trial, and so the Strickland standard must be applied with scrupulous care, lest “intrusive post-trial inquiry” threaten the integrity of the very adversary process the right to counsel is meant to serve. Even under de novo review, the standard for judging counsel's representation is a most deferential one. Unlike a later reviewing court, the attorney observed the relevant proceedings, knew of materials outside the record, and interacted with the client, with opposing counsel, and with the judge. It is “all too tempting” to “second-guess counsel's assistance after conviction or adverse sentence.” The question is whether an attorney's representation amounted to incompetence under “prevailing professional norms, ” not whether it deviated from best practices or most common custom.

Richter, 562 U.S. at 105 (citations omitted). “Counsel [cannot] be unconstitutionally ineffective for failing to raise . . . meritless arguments.” Mapes v. Coyle, 171 F.3d 408, 427 (6th Cir. 1999).

         After a petitioner files a § 2255 motion, the Court reviews it 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 . . . .” Rules Governing Section 2255 Proceedings for the U.S. District Courts (“§ 2255 Rules”) at Rule 4(b). “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 § 2255 movant is entitled to reply to the government's response. Id. at Rule 5(d). The Court may also direct the parties to provide additional information relating to the motion. Id. at Rule 7(a). If the district judge addressing the § 2255 motion is the same judge who oversaw the trial, the judge “‘may rely on his or her recollection of the trial'” in denying the motion. Christopher v. United States, 605 F.App'x 533, 537 (6th Cir. 2015) (quoting Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999)).

         B. ACCA's “Violent-Felony” Framework

         Clemons's § 2255 Motion challenges the Court's finding that he was an armed career criminal under the ACCA. Under the ACCA, a defendant convicted under 18 U.S.C. § 922(g) who has three previous convictions for violent felonies or serious drug offenses is subject to a mandatory minimum sentence of 180 months in prison. 18 U.S.C. § 924(e)(1). Without the prior qualifying convictions, a defendant convicted under § 922(g) is subject to a statutory maximum sentence of 120 months. Id. § 924(a)(2).

         The ACCA defines “violent felony” as “any crime punishable by imprisonment for a term exceeding one year” that (a) “has as an element the use, attempted use, or threatened use of physical force against the person of another” (the “use-of-force clause”); (b) “is burglary, arson, or extortion, [or] involves use of explosives” (the “enumerated-offenses clause”); or (c) “otherwise involves conduct that presents a serious potential risk of physical injury to another” (the “residual clause”). Id. § 924(e)(2)(B).

         In Johnson v. United States, the Supreme Court held that a sentence imposed under the residual clause of the ACCA violates due process. 135 S.Ct. at 2563. In Welch v. United States, the Supreme Court applied its holding in Johnson retroactively to ACCA cases on collateral review. 136 ...


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