United States District Court, E.D. Tennessee
DAVID W. SHARP, Petitioner,
UNITED STATES OF AMERICA, Respondent.
A. VARLAN, CHIEF UNITED STATES DISTRICT JUDGE
Petitioner, David W. Sharp (“Petitioner”) has
filed a motion to vacate, set aside, or correct sentence
pursuant to 28 U.S.C. § 2255 [Doc. 70]. The government
filed a response in opposition [Doc. 73], and Petitioner
replied [Doc. 74]. Also before the Court is Petitioner's
motion to amend his § 2255 motion [Doc. 76], and his
Motion for Permission to Take Discovery [Doc. 77]. For the
reasons discussed herein, the Court will deny all of
Petitioner's pending motions [Docs. 70, 76, 77].
March 21, 2009, a narcotics-detection dog alerted to the
presence of drugs after jumping inside Petitioner's
vehicle during the course of a traffic stop. United
States v. Sharp, 689 F.3d 616, 617 (6th Cir. 2012). A
subsequent search of the vehicle uncovered 154 grams of
methamphetamine, 10.5 grams of marijuana, and various drug
paraphernalia inside a shaving kit on the passenger seat.
Id. Petitioner was charged with possession with
intent to distribute at least fifty grams of a mixture or
substance containing methamphetamine, in violation of 21
U.S.C. § 841(a)(1), (b)(1)(B) [Doc. 1].
moved to suppress the drug evidence seized from his vehicle
[Doc. 11]. After conducting an evidentiary hearing on the
matter, the Honorable C. Clifford Shirley, United States
Magistrate Judge, issued a Report and Recommendation
(“R&R”), recommending that the Court deny the
motion to suppress [Doc. 32]. Petitioner filed objections to
the R&R [Doc. 33]. This Court overruled those objections
and accepted Judge Shirley's recommendation to deny the
motion to suppress [Doc. 35]. A jury subsequently convicted
Petitioner as charged [Doc. 44].
Petitioner had a prior conviction for a felony drug offense,
he faced an enhanced penalty range of ten years' to life
imprisonment pursuant to 21 U.S.C. § 841(b)(1)(B) [Doc.
38; Presentence Investigation Report (“PSR”)
¶ 102]. Due to his designation as a career offender,
Petitioner also faced an advisory guidelines range of 360
months' to life imprisonment [PSR ¶¶ 21, 103].
After considering the 18 U.S.C. § 3553(a) factors, this
Court sentenced Petitioner to 360 months' imprisonment
appealed his conviction and sentence on the sole ground that
this Court improperly denied his motion to suppress.
Sharp, 689 F.3d at 618. The Sixth Circuit affirmed
this Court's judgment, finding that “the
canine's jump and subsequent sniff inside
[Petitioner's] vehicle was not a search in violation of
the Fourth Amendment because the jump was instinctive and not
the product of police encouragement.” Id. at
then sought a writ of certiorari, which the Supreme Court
denied on December 4, 2012 [Doc. 68]. Almost a year later,
this timely § 2255 motion followed [Doc. 70]. Petitioner
then filed a motion for leave to amend his § 2255 motion
[Doc. 76], and a Motion for Permission to Take Discovery
Section 2255 Motion and Motion to Amend
relief authorized by 28 U.S.C. § 2255 “does not
encompass all claimed errors in conviction and
sentencing.” United States v. Addonizio, 442
U.S. 178, 185 (1979). Rather, to obtain relief pursuant to
§ 2255, a petitioner must demonstrate “(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.” Short v. United States, 471 F.3d
686, 691 (6th Cir. 2006) (quoting Mallett v. United
States, 334 F.3d 491, 496-97 (6th Cir. 2003)). In other
words, a petitioner cannot prevail unless he shows a
“fundamental defect in the proceedings which
necessarily results in a complete miscarriage of justice or
an egregious error violative of due process.” Fair
v. United States, 157 F.3d 427, 430 (6th Cir. 1998).
Under this standard, a petitioner “must clear a
significantly higher hurdle [to obtain relief] than would
exist on direct appeal.” Id. (quoting
United States v. Frady, 456 U.S. 152, 166 (1982)).
Petitioner's § 2255 motion, he asserts the following
grounds for relief: (1) his conviction was based on
inadmissible evidence due to a Fourth Amendment violation
(“ground one”); (2) the application of the
enhanced 21 U.S.C. § 841(b)(1)(B) penalties without a
specific jury finding that Petitioner had the requisite prior
felony drug offense violated his Fifth Amendment right to due
process (“ground two”) and his Sixth Amendment
right to jury trial (“ground three”); and (3)
ineffective assistance of counsel due to his counsel's
failure to raise those Fourth, Fifth, and Sixth Amendment
issues (“ground four”). In his motion to amend,
Petitioner seeks leave to amend his § 2255 motion to add
additional claims of ineffective assistance of counsel.
15(a) of the Federal Rules of Civil Procedure provides that
leave to amend should “be freely given when justice so
requires.” Fed.R.Civ.P. 15(a). Relevant factors include
“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.”
Anderson v. Young Touchstone Co., 735 F.Supp.2d 831,
833 (W.D. Tenn. 2010) (quoting Forman v. Davis, 371
U.S. 178, 182 (1965)).
discussed herein, the Court finds that Petitioner's
proposed amendments are futile, and the Court will deny
Petitioner's motion to amend. The Court will analyze the
proposed amendments in conjunction with its discussion of
Petitioner's original § 2255 motion. As such, the
Court will first analyze whether Petitioner is entitled to
relief under the first three grounds alleged in his §
2255 motion. The Court will then turn to ground four and will
also address the new proposed allegations.
Ground One: Fourth Amendment Violation
contends that his conviction resulted from evidence obtained
in violation of the Fourth Amendment. Specifically,
Petitioner alleges that the use of the drug-detection dog to
explore Petitioner's car “without a warrant . . .
results in a constitutional violation of the Fourth
Amendment's guarantee against unreasonable
searches” [Doc. 71 p. 8]. He contends that, although
“Officer Mike Nations conducted a lawful arrest
pursuant to an arrest warrant for [Petitioner], ” the
use of the dog to explore Petitioner's car, which was
“parked on private residential property, ”
constituted an illegal search [Id.].
previously and unsuccessfully appealed his conviction to the
Sixth Circuit, on the ground that this Court denied his
motion to suppress the search based on a drug dog's
alert. After the Sixth Circuit ruled on
Petitioner's appeal, the Supreme Court decided the case
of Florida v. Jardines, 133 S.Ct. 1409 (2013).
Petitioner now contends that this subsequent Supreme Court
ruling constitutes an intervening change in the law and