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Sharp v. United States

United States District Court, E.D. Tennessee

March 31, 2017

DAVID W. SHARP, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          THOMAS A. VARLAN, CHIEF UNITED STATES DISTRICT JUDGE

         Pro se 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].

         I. Background

         On 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].

         Petitioner 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].

         Because 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 [Doc. 54].

         Petitioner 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 617.

         Petitioner 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 [Doc. 77].

         II. Section 2255 Motion and Motion to Amend

         The 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)).

         In 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.

         Rule 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)).

         As 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.

         A. Ground One: Fourth Amendment Violation

         Petitioner 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.].

         Petitioner 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.[1] 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 ...


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