United States District Court, W.D. Tennessee, Western Division
H. MAYS, JR. UNITED STATES DISTRICT JUDGE.
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.”).)
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.
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).
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.
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).
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).
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.”).) 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).)
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.
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.
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.) On April 8, 2009, after a trial, a jury
found Clemons guilty. (Jury Verdict, ECF No. 49 in 08-20166
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
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. (Id.) Based on his
armed-career-criminal status, Clemons's total offense
level was 33. (Id. ¶ 20 (citing U.S.S.G. §
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)).)
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),
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.)
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).
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.)
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).
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.) 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.)
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.)
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.)
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
Motion for Extension of Time
6(b)(1)(A) governs the Motion for Extension of
Time.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
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.
Motions to Supplement and Request for Counsel in Fourth
Motion to Supplement
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.
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.
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.
§ 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.
Section 2255 Motions
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).
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)).
prisoner must file his § 2255 motion within one year of
the latest of:
(1) the date on which the judgment of conviction becomes
(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
(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).
§ 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
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).
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.
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.
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.
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,
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).
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.
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).
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)).
ACCA's “Violent-Felony” Framework
§ 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).
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. §
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