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Avery v. United States

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

March 29, 2017

BERNARD AVERY, JR., Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

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

         Before the Court are nine motions. On February 18, 2014, Petitioner Bernard Avery, Jr., filed a Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. (ECF No. 1 (“§ 2255 Mot.”); see also Movant's Br. and Mem. in Supp. of [28 U.S.C. § 2255] Pet., ECF No. 1-1 (“Mem. ISO § 2255 Mot.”).) The Government filed a response to the § 2255 Motion on October 14, 2014. (Resp. of U.S. to Def.'s Mot., ECF No. 13 (“First Gov't Resp.”).) Avery filed a reply in support of the § 2255 Motion on November 10, 2014. (Mot. Pursuant to Resp. to Opp'n Pet. to [§ 2255 Mot.], ECF No. 14 (“§ 2255 Reply”).)

         On June 8, 2015, Avery filed a motion for leave to amend the § 2255 Motion. (Pet'r's Mot. for Leave to Amend his [§] 2255 Mot. Pursuant to Fed.R.Civ.P. Rule 15(c), ECF No. 18 (“Mot. to Amend”).) On June 24, 2015, the Court granted the Mo- tion to Amend and directed the Government to respond. (See Corrected Order Addressing Pending Mots. and Directing U.S. to Resp. to Amended 28 U.S.C. § 2255 Mot., ECF No. 20 (“June 2015 Order”).) The Government filed its response on August 10, 2015. (Resp. of U.S. to Am. 28 U.S.C. § 2255 Mot., ECF No. 23 (“Second Gov't Resp.”).) Avery has not filed a direct reply to the Second Government Response, although material in his other filings addresses the Second Government Response indirectly. The deadline for a direct reply to the Second Government Response has passed. (June 2015 Order 5 (setting reply deadline).)

         On September 1, 2015, Avery filed a Motion Asking [Court] to Rule in Movant's Favor as to His [Amended] [§ 2255] Motion Pursuant to Fed. R. Civ. [P.] Rule 15(c). (ECF No. 24 (“Second Avery Mot.”).) Like the remainder of Avery's motions, the Government has not filed a response to the Second Avery Motion. The deadline for doing so has passed. L.R. 7.2(a)(2).[1]

         On December 21, 2015, Avery filed a Motion for an Evidentiary Hearing. (ECF No. 29 (“Third Avery Mot.”).) The same day, Avery also filed a Motion for Extension of Time to Respond to Government's Response to Movant's [§ 2255] Motion. (ECF No. 30 (“Fourth Avery Mot.”).)

         On March 10, 2016, Avery filed a Motion for Judicial Notice. (ECF No. 31 (“Fifth Avery Mot.”).) The same day, Avery also filed a Motion Asking the [Court] to Consider [a] Document as Newly Discovered Evidence for a Downward Departure. (ECF No. 32 (“Sixth Avery Mot.”).)

         On March 21, 2016, Avery filed a Motion to Amend His [§ 2255] Motion Pursuant to Fed.R.Civ.P. Rule 15(c). (ECF No. 33 (“Seventh Avery Mot.”).)

         On April 4, 2016, Avery filed a Motion to Supplement. (ECF No. 34 (“Eighth Avery Mot.”).)

         On June 16, 2016, Avery filed a Motion for Leave to [Amend] His [§ 2255] Motion Pursuant to Fed.R.Civ.P. Rule 15(c). (ECF No. 35 (“Ninth Avery Mot.”).)

         For the following reasons, the § 2255 Motion is DENIED. The Second and Third Avery Motions are DENIED. The Fourth Avery Motion is DENIED as moot. The Fifth, Sixth, Seventh, Eighth, and Ninth Avery Motions are DENIED.

         I. BACKGROUND

         A. Case No. 07-20040

         On February 1, 2007, a federal grand jury returned an eight-count indictment against four defendants, including Avery. (Indictment in 07-20040, [2] ECF No. 1.) The charges included: (1) two counts of interference with commerce by threats or violence, in violation of 18 U.S.C. § 1951 (id. at 1, 3); (2) two counts of bank robbery, in violation of 18 U.S.C. § 2113(a) (id. at 5, 7); and (3) four counts of carrying or using a firearm while committing a crime of violence, in violation of 18 U.S.C. § 924(c) (id. at 2, 4, 6, 8). Each count referred to 18 U.S.C. § 2 and alleged that the defendants aided and abetted one another in committing the relevant substantive offense. (Id. at 1- 8.) All eight counts named Avery. (See generally id.)

         On March 27, 2007, Avery filed a Motion to Refer Defendant for Mental Competency Evaluation by Psychiatrist/Psychologist. (ECF No. 50 in 07-20040.) The Motion represented that Avery's counsel believed that Avery was “presently suffering from a mental disease or defect rendering him mentally incompetent to the [extent] that he is unable to understand the nature and consequences of the proceedings against him and to assist counsel properly in his defense.” (Id. ¶ 2.) That motion was granted on March 29, 2007, and Avery was ordered to “undergo a complete mental evaluation . . . to determine whether he is mentally competent.” (Order for Mental Evaluation of Def. 1, ECF No. 52 in 07-20040.) The resulting report concluded that, at that time, Avery was not competent to stand trial. (See, e.g., Minute Entry, ECF No. 68 in 07-20040.)

         The Court held a competency hearing on August 23, 2007. (Minutes, ECF No. 71 in 07-20040.) The Court concluded that Avery was suffering from “mental defect/dementia” and that, at that time, Avery was incompetent to stand trial. (Id.) Avery's trial was continued, and Avery was “committed to the custody of the U.S. Attorney General pursuant to 18 U.S.C. [§] 4241D for a period of treatment . . . .” (Order on Continuance and Excluding Time, ECF No. 73 in 07-20040.) Avery was transported to the Federal Medical Center in Butner, North Carolina (“FMC”). (See, e.g., Order Granting Mot. to Extend Evaluation Deadline 1, ECF No. 95 in 07-20040.)

         On March 25, 2008, the FMC submitted a Certificate of Restoration of Competency to Stand Trial. (Letter from Tony D. Hiscocks, FMC (Mar. 25, 2008), ECF No. 126 in 07-20040 (including certificate as attachment).) The underlying forensic evaluation of Avery concluded:

In regard to his competency to stand trial, [Avery] suffers from a major mental illness, that is, [s]chizophrenia. However, his symptoms are largely in remission at this time. Unfortunately, [Avery] was unwilling to be forthright about what he understands regarding the charges and legal system. Therefore, a complete description of his competency-related abilities cannot be offered. However, there is indirect information to suggest [Avery] understands the nature and consequences of the proceedings against him and can properly assist in his defense. For instance, [Avery] was able to provide a coherent and logical account of his alleged activities following his arrest. During his admission, he was able to understand questions posed to him and respond appropriately. He also was calm, alert, and appropriate with the evaluators and other staff, suggesting he can interact appropriately with counsel as well. He was attentive during extended interviews, suggesting he can remain sufficiently focused during the proceedings. His speech was also clear and organized, indicating there are no obvious impediments to him testifying if necessary. He never verbalized any delusional or irrational ideas. Further, [Avery] has no mental condition or gross cognitive deficits which would suggest he could not understand the charges or relevant legal information in order to participate in his own defense.
Given the above, [Avery] is considered competent to stand trial and is ready to be returned to court. . . .

(Robert E. Cochrane, Forensic Evaluation -- Bernard Avery 14 (Mar. 6, 2008), ECF No. 34-1 in 07-20040 (“2008 Evaluation”).)

         On November 19, 2008, Avery was arraigned. (Minute Entry, ECF No. 170 in 07-20040.) He pled not guilty to all counts in the indictment. (Id.)

         During a status conference on March 1, 2010, [3] the Government said it had received a report from a defense psychologist, Dr. Geraldine Bishop, that Avery was not competent to stand trial. (Minute Entry, ECF No. 272 in 07-20040.) The Court determined that Avery should undergo further mental evaluation before trial. (Order for Further Mental Evaluation of Def., ECF No. 271 in 07-20040.) The Court ordered that Avery “undergo a complete mental evaluation to determine whether he is mentally competent to stand trial, to understand the nature and consequences of the proceedings against him and to assist properly in his own defense, and to determine his competency at the time of the alleged offenses, all with specific reference to mental retardation.” (Id.)

         The resulting forensic evaluation was submitted on May 27, 2010. (Letter from Sara M. Revell, FMC (May 21, 2010) (attaching evaluation) (on file with Court).) Addressing Avery's competency to stand trial, the evaluation concluded:

Avery does not suffer from a mental disease or defect rendering him mentally incompetent to the extent he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense. Therefore, we view him as competent to stand trial at this time. While he does suffer from [s]chizophrenia, his symptoms are largely in remission. Further, Avery is not mentally retarded, nor does he suffer from any other mental disorder that would impact his competency.

(Jennifer S. Adams, Forensic Evaluation -- Bernard Avery 18 (May 10, 2010) (on file with Court) (“2010 Evaluation”).)

         Avery's trial began on August 17, 2010. (Minute Entry, ECF No. 318 in 07-20040.) On August 25, 2010, the sixth day of trial, Avery said he wished to change his plea. (Minute Entry, ECF No. 323 in 07-20040.) Avery and the Government entered into a plea agreement. (Plea Agreement, ECF No. 325 in 07-20040 (“Plea Agreement”).)

         In the Plea Agreement, Avery agreed to plead guilty to Counts 1-3 and Counts 5-7 of the Indictment. (Id. ¶ 7.) The Government agreed that, at sentencing, it would move for dismissal of Counts 4 and 8.[4] (Id. ¶ 8.) The Plea Agreement recommended an “agreed upon sentence of imprisonment” of 40 years, subject to the Court's agreement. (Id. ¶ 9.) On August 30, 2010, the Court entered an Order on Change of Plea stating that “the Court [had] accepted [Avery's] plea” on August 25, 2010. (Order on Change of Plea, ECF No. 326 in 07-20040.)

         Before Avery's sentencing, the U.S. Probation Office prepared a Presentence Investigation Report. (Presentence Investigation Report in 07-20040-2 (“PSR”).) The PSR calculated Avery's guidelines-sentencing range pursuant to the 2010 edition of the U.S. Sentencing Commission Guidelines Manual (“U.S.S.G.”). (Id. ¶ 19.)

         The PSR calculated the adjusted offense levels for Counts 1, 3, 5, and 7. (Id. ¶¶ 20-45.) These were 20, 26, 24, and 30, respectively. (Id. ¶¶ 25, 31, 38, 45.) Pursuant to U.S.S.G. § 3D1.4, these adjusted offense levels led to a combined adjusted offense level of 33. (Id. ¶¶ 46-53.) The PSR also included a three-point adjustment based on acceptance of responsibility. (Id. ¶ 54.) The resulting total offense level was 30. (Id. ¶ 56.) After reviewing Avery's criminal history, the PSR stated that he had no criminal-history points, resulting in a criminal-history category of I. (Id. ¶ 64.)

         Avery's recommended guidelines-sentencing range for Counts 1, 3, 5, and 7, based on a total offense level of 30 and a criminal-history category of I, was 97 to 121 months. (Id. ¶ 107.) Because of his two § 924(c) convictions for Counts 2 and 6, an additional 32 years of consecutive imprisonment were added to that sentence. (Id. ¶¶ 57, 107.)

         At his sentencing on January 13, 2011, Avery objected to portions of the PSR, but not to the calculation of the sentencing range. (See generally Position of Def. with Regard to Sentencing Factors, ECF No. 336 in 07-20040.) Avery was sentenced to 480 months (40 years) of imprisonment. (J. in a Criminal Case 2, ECF No. 338 in 07-20040 (“J. in Criminal Case”).) Avery did not appeal.

         B. Case No. 14-02118

         On February 18, 2014, Avery filed the § 2255 Motion. That motion asserts six grounds. Ground 1 is that Avery “is actually innocent of the underlying offense” in Counts 1 and 2 of the indictment. (§ 2255 Mot. 6; see also Mem. ISO § 2255 Mot. 1-3.) Ground 2 is that the Court “erred in accepting Avery's guilty plea without factual support of Counts 1 & 2.” (§ 2255 Mot. 8; see also Mem. ISO § 2255 Mot. 3-5.) Ground 3 is that the Court lacked subject-matter jurisdiction to adjudicate Avery's prosecution. (§ 2255 Mot. 10; see also Mem. ISO § 2255 Mot. 5-10.)

         Ground 4 has two parts. The first (“Ground 4(a)”) is that “[t]he evidence of [Avery's] case was tainted by the [Government's] use [of it] to convict Avery without jurisdiction.” (§ 2255 Mot. 12; see also Mem. ISO § 2255 Mot. 10-11.) The second (“Ground 4(b)”) is that “the evidence of [Avery's] case was tainted by the state of Tennessee's intentional waiver and re-linquishment of the evidence to the United States.” (§ 2255 Mot. 12; see also Mem. ISO § 2255 Mot. 11-12.)

         Ground 5 is that “Avery was [capriciously] held competent to understand the nature and consequences of his actions.” (§ 2255 Mot. at PageID 17; see also Mem. ISO § 2255 Mot. 12-13.) Ground 6 is that Avery's counsel provided ineffective assistance “by virtue of [counsel's] failure to protect Avery's vital liberty interests.” (§ 2255 Mot. at PageID 17; see also Mem. ISO § 2255 Mot. 14-20.)

         On May 15, 2014, the Court entered an order directing the Government to respond to the § 2255 Motion. (Order Directing Gov't to Respond, ECF No. 6.) On October 14, 2014, the Government filed the First Government Response. The gravamen of that response was that the § 2255 Motion was time-barred under 28 U.S.C. § 2255(f). (First Gov't Resp. 2-4.) On November 10, 2014, Avery filed the § 2255 Reply. The § 2255 Reply did not address the Government's § 2255(f) argument. (See generally § 2255 Reply.)

         On June 8, 2015, Avery filed the Motion to Amend. That motion did address the Government's § 2255(f) argument, asserting that under § 2255(f)(3) and (f)(4), the § 2255 Motion is not time-barred because Avery filed it within a year of the U.S. Supreme Court's decision in Rosemond v. United States, 134 S.Ct. 1240 (2014). (Mot. to Amend. 2-3.) The Motion to Amend argued also that the Court should grant Avery leave to amend his § 2255 Motion to include his argument that the § 2255 Motion is not time-barred. (Id. at 1.)

         On June 24, 2015, the Court entered the June 2015 Order. That order, inter alia, granted the First Motion to Amend and ordered the Government to “specifically address[] whether [Avery's] claims remain time barred under Rosemond.” (June 2015 Order 4.) The Government filed the Second Government Response on August 10, 2015. The gravamen of that response was that, notwithstanding Avery's Rosemond argument, the § 2255 Motion was time-barred. (Second Gov't Resp. 1-3.)

         Between September 1, 2015, and June 16, 2016, Avery filed the Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, and Ninth Avery Motions.

         II. STANDARD OF REVIEW FOR § 2255 MOTIONS

         Avery seeks relief under 28 U.S.C. § 2255. (See generally § 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 prevail on a motion under § 2255, a [petitioner] must prove ‘(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.'” Goward v. United States, 569 F. App'x 408, 412 (6th Cir. 2014) (quoting McPhearson v. United States, 675 F.3d 553, 559 (6th Cir. 2012)).

         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 ...

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