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Kitts v. United States

United States District Court, E.D. Tennessee, at Greeneville

May 31, 2017




         Before the Court is Petitioner's supplemented pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 [Docs. 70, 83]. The United States responded in opposition to the original § 2255 motion on December 24, 2014 [Doc. 75], and the supplement on May 3, 2016 [Doc. 96]. Petitioner filed multiple pro se replies to both responses [Docs. 76, 78, 101, 102]. Also before the Court are Petitioner's pro se motions for an evidentiary hearing [Docs. 84, 86], for the appointment of counsel [Doc. 92], to compel a response from the United States [Doc. 98], and an "informal request for disposition" [Doc. 105]. For the reasons discussed below, the non-dispositive motions [Docs. 84, 86, 92, 98, 105] will be DENIED and the supplemented petition [Docs. 70, 83] will be DENIED and DISMISSED WITH PREJUDICE.

         I. BACKGROUND

         Law enforcement charged both Petitioner and co-defendant Brandon Stout with possessing a firearm as a felon [Doc. 1]. In October of 2011, Petitioner signed a plea agreement with the United States [Doc. 24], but this Court declined to accept that agreement because Petitioner kept insisting at the change of plea hearing that he did not understand the proceedings and did not remember the underlying facts [Doc. 63]. Witnesses introduced the following facts at trial.

         Jason and Brandi Lane's residence in Russellville, Tennessee, was burglarized on January 6, 2011 [Doc. 61at 3-4]. Jason Lane testified that the items stolen included jewelry, a Bible, and a Winchester shotgun that had been passed down to him by his grandfather [Id. at 4, 6, 8]. Detective Sergeant Statler Collins, of the Hamblen County Sheriff's Office, responded to the Lanes' residence after the burglary, and saw that someone had kicked in the front door of the residence [Id. at 36-7]. Later that day, Detective Collins participated in a traffic stop of a vehicle containing Petitioner, Stout, and Crystal Hyde [Id. at 37-8]. Stout was driving, Hyde was in the front passenger seat, and Petitioner was in the rear passenger seat [Id.]. During a search of the vehicle, Detective Collins found a pillowcase containing games, jewelry, and a Bible imprinted with the name of Jason Lane [Id. at 39]. He also found a latex glove and a black glove [Id. at 41-2].

         Hyde agreed to speak with investigators and subsequently testified at trial [Id. at 42-3]. She said that she and four other individuals, including Petitioner, went to the Lanes' residence, and that Petitioner and Stout forced the front door open and went inside [Id. at 13-16]. Hyde testified that Stout and Petitioner returned to the car a few minutes later with “pillowcases full of stuff, ” and that one of the pillowcases contained a gun [Id. at 16-17]. The group then traveled to a “Mexican house” in Morristown, Tennessee, and Petitioner and Stout took the pillowcases of stolen items into the house [Id. at 19]. When they returned to the car without the pillowcases, Stout gave Petitioner $40 cash and said he had the rest in his pocket [Id. at 20]. Hyde took law enforcement officers to the house where Stout and Petitioner had taken the stolen items and, after obtaining consent to search, the officers recovered several of the stolen items, including the PlayStation 3, a Wii, Wii games, DVDs, and a Winchester 410 shotgun [Id. at 44-45]. A firearms expert testified that the shotgun had traveled in interstate commerce [Id. at 58].

         Based in part on the foregoing testimony, on December 8, 2011, the jury convicted Petitioner of possessing a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1) [Doc. 40]. Based on five prior Tennessee convictions-three for second-degree burglary [Presentence Investigation Report (PSR) ¶¶ 28, 31], and two for aggravated burglary [Id. ¶¶ 36, 42], the United States Probation Office deemed Petitioner to be an armed career criminal subject to the Armed Career Criminal Act's (ACCA), 18 U.S.C. § 924(e), fifteen year statutory minimum [Id. ¶ 22]. Because of that classification and because the firearm was possessed “in connection with” another violent felony, he received a base offense level of thirty-four [Id.]. Petitioner's fifteen criminal history points and criminal history category of VI yielded an advisory Guidelines range of 262 to 327 months [Id. ¶¶ 53-54, 87]. Neither party objected [Doc. 49; Doc. 50; Doc. 64 at 5].

         Citing Petitioner's extensive criminal history, the United States requested a sentence of 327 months' imprisonment [Doc. 64 pp. 5-6]. Petitioner suggested that a below-Guidelines sentence might be appropriate [Doc. 53]. This Court referenced the seriousness of the instant offense, as well as Petitioner's lengthy and violent criminal history, in that Petitioner, while still a teenager, had seemingly “committed [him]self to a life of lack of respect for the law” [Id. at 15-16]. Addressing the need to promote respect for the law, this Court stated, “the only time that it appears that [Petitioner was] not committing criminal offenses are periods of time when [he was] in jail for some other offense” [Doc. 64 p. 16]. Based on the number and type of offenses committed, as well as Petitioner's repeated violations of probation or other terms of release, this Court concluded that it would take a “substantial term of imprisonment to deter [Petitioner] from committing criminal offenses” [Id. at 17-18].

         Turning to the need to protect the public, this Court stated that Petitioner's repeated burglaries involving firearms substantially increased the likelihood that death or serious bodily injury could occur during his offenses, and “yet [Petitioner had] been doing that for years [and did not] seem to have been deterred from it at all” [Id. at 19]. This Court acknowledged that Petitioner's criminal behavior was related to his alcoholism but found that the risk of recidivism was high [Id. at 19-20]. “[S]tatistics suggest that the people who are most likely to commit additional offenses in the future are the people who are convicted of property-related offenses, something in excess of 75 percent. So the chances are very high that you will continue to commit these offenses, and the public has an obvious right to be protected from that” [Id.]. This Court said it saw nothing that would warrant a downward variance from the Guidelines range [Id. at 20]. Although Petitioner's history and characteristics were significant, it was “not because there's anything here to suggest mitigation, but because of Petitioner's significant criminal history, including a whole host of violent offenses, 15 total criminal history points. Mental health issues, addiction issues, both of which increase the risk of recidivism” [Id.]. This Court added that it did not “see anything that would suggest . . . a sentence below the guideline range” [Id. at 20-21].

         Based on the foregoing, this Court rejected Petitioner's suggestion that his health problems-he claimed to be dying of liver disease-warranted a lesser sentence [Id. at 21]. To the contrary, this Court reasoned that Petitioner would likely be better off, from “a medical point of view, ” if he were in custody “where [he could not] drink alcohol the way [he had] in the past and . . . [could] get appropriate medical treatment” instead [Id.]. After reiterating that Petitioner's medical condition did not warrant a variance, [id. at 22], this Court imposed a bottom-of-the-Guidelines sentence: 262 months' imprisonment [Id. at 22-23; Doc. 56]. Petitioner appealed, but the Sixth Circuit affirmed his conviction, ACCA enhancement, and sentence [Doc. 67]. The Supreme Court denied Petitioner's request for a writ of certiorari on April 1, 2014 [Doc. 69].

         Less than one year later-on September 25, 2014, Petitioner filed his original petition for collateral relief asserting several grounds of legal error and ineffective assistance of counsel [Doc. 70]. On June 26, 2015, the Supreme Court held that the residual provision of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), was unconstitutionally vague in Johnson v. United States, 135 S.Ct. 2551 (2015). Nearly two years after submitting the original petition, but less than one year after the Supreme Court decided Johnson-February 22, 2016, Petitioner filed a supplement with six discernable grounds for collateral relief: (1) he no longer qualified for ACCA enhancement after Johnson, (2) the use of prior state court convictions to enhance his sentence violated Alleyne v. United Sates, 133 S.Ct. 420 (2012); (3) counsel acted in a constitutionally deficient manner when he failed to seek a competency hearing, (4) counsel acted in a constitutionally deficient manner when he “bias[ed] his own client in front of the jury;” (5) counsel acted in a constitutionally deficient manner when he failed to “adversarially test” the United States's key witness, and (6) the United States intentionally “confused” the jury [Doc. 83].


         In addition to the supplemented petition, this Court is in possession of a pro se motion requesting the appointment of counsel to assist Petitioner with litigation of his collateral challenge, especially his ground for relief based on Johnson [Doc. 92]. To the extent that he seeks counsel to assist in litigation of his Johnson-based challenge, that request will be DENIED as moot in light of the fact that this Court already appointed Federal Defenders Services of Eastern Tennessee (FDSET) by Standing Order to identify and represent all defendants in the Eastern District of Tennessee with a viable argument for collateral relief based on Johnson. E.D. Tenn. S.O. 16-02 (Feb. 11, 2016). To the extent that he requests counsel to aid in litigation of his other grounds for collateral relief, that request will be DENIED because Petitioner has not demonstrated that counsel is necessary to ensure that those claims are fairly raised or heard. Mira v. Marshall, 806 F.2d 636 (6th Cir. 1986); see also Childs v. Pellegrin, 822 F.2d 1382, 1284 (6th Cir. 1987) (explaining that the appointment of counsel in a civil case is a matter within the discretion of the district court).


         Section 2255(f) places a one-year statute of limitations on all petitions for collateral relief under § 2255 running from either: (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). This same provision governs the timeliness of later-filed amendments. Cameron v. United States, No. 1:05-cv-264, 2012 WL 1150490, at *3-6 (E.D. Tenn. April 5, 2012) (citing Olsen v. United States, 27 F. App'x 566 (6th Cir. Dec. 14, 2001)). Petitioner has failed to demonstrate that subsections (f)(2) or (f)(4) apply to his case. Specifically, he has not established that any illegal action by the government prevented him from making the timely petition or the existence of facts affecting his case that could not have previously been discovered through the exercise of due diligence. Timeliness of his supplement depends on whether that document complies with the limitation periods under subsections (f)(1) and (f)(3).

         A. Timeliness of September 25, 2014 Petition

         For purposes of the subsection (f)(1)-where the statutory period expires one year from the date on which the judgment of conviction becomes final-“a conviction becomes final at the conclusion of direct review.” Brown v. United States, 20 F. App'x 373, 374 (6th Cir. 2001) (quoting Johnson v. United States, 246 F.3d 655, 657 (6th Cir. 2001)). Where a defendant pursues direct review through to a petition for certiorari in the United States Supreme Court, direct review concludes when the Supreme Court either denies the petition for certiorari or decides the case. Clay v. United States, 537 U.S. 522, 532 (2003). Petitioner's conviction became final for purposes of subsection (f)(1) on April 1, 2014 [Doc. 69]. The statute of limitations for the provision began to run that same date and expired on April 1, 2015. The original petition-filed on September 25, 2014-falls safely within the permissible period for requesting collateral relief [Doc. 70].

         B. Timeliness of February 22, 2016 Amendment

         Unlike the original petition, Petitioner filed the supplement to his petition almost eleven months after the window for requesting relief under subsection (f)(1) expired. To the extent that Petitioner relies on subsection (f)(3)'s independent filing period for newly-recognized rights made retroactively applicable on collateral review as justification for submitting the supplement after April 1, 2015, only his claim for collateral relief based on Johnson satisfies the conditions required to trigger that provision. See 28 U.S.C. § 2255(f)(3) (requiring reliance on a newly recognized and retroactively applicable right); see also Welch v. United States, 136 S.Ct. 1257, 1265 (2016) (“Johnson is . . . a substantive decision and so has retroactive effect . . . in cases on collateral review.”); In re Windy Watkins, 810 F.3d 375, 380-81 (6th Cir. 2015) (finding Johnson constitutes a new substantive rule of constitutional law made retroactively applicable on collateral review and thus triggers § 2255(h)(2)'s requirement for certification of a second or successive petition).[1] The fate of Petitioner's other supplemental grounds for relief-his Alleyne, ineffective assistance, and prosecutorial misconduct claims-depend on whether the filing window under subsection (f)(1) has been equitably tolled and, if not, whether those untimely grounds relate back to one of Petitioner's timely-filed grounds under Federal Rule of Civil Procedure 15(c).

         1. Equitable Tolling of the Statute of Limitations

         Section 2255(f)'s statute of limitations is not jurisdictional and may be tolled under limited circumstances. Dunlap v. United States, 250 F.3d 101, 1007 (6lth Cir. 2001). A petitioner bears the burden of establishing that equitable tolling applies to his case, see Jurado v. Burt, 337 F.3d 638, 642 (6th Cir. 2003); Allen v. Yukins, 366 F.3d 396, 401 (6th Cir. 2004), and must show “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing, ” Holland v. Florida, 130 S.Ct. 2549, 2562 (2010); Hail v. Warden, 662 F.3d 745, 750 (6th Cir. 2011); see also Jurado, 337 F.3d at 643 (“Absent compelling equitable considerations, a court should not extend limitations by even a single day.”).

         After a thorough review of the petition, supplement, replies, and other pro se filings, this Court finds that Petitioner has failed to put forth a single, extraordinary circumstance justifying his failure to submit the supplement within the one-year period allowed by subsection (f)(1). Compare Stovall v. United States, No. 1:12-cv-377, 2013 WL 392467, at *3 (E.D.T.N. Jan. 31, 2013) (rejecting request for equitable tolling of subsection (f)(1) in absence of evidence illustrating a diligent pursuit of the rights asserted); with Jones v. United States, 689 F.3d 621, 627 (6th Cir. 2012) (granting request for equitable tolling where the petitioner pled facts indicating he had been separated from his legal materials for an extended period of time due to multiple detention transfers and an illness). Absent such a showing, no tolling is warranted.

         2. Relation Back Under Federal Rule of Civil Procedure 15(c)

         When a supplement is untimely, district courts look to Rule 15(c) to determine whether the proposed claims “relate back” to a timely, original pleading and are thus saved from being time barred by expiration of the statute of limitations. Mayle v. Felix, 545 U.S. 644, 656-57 (2005), overruled on other grounds by Bell Atl. Corp. v. Twombly, 550 U.S. 544, 562-63 (2007). A claim relates back if it “ar[i]se[s] out of the [same] conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.” Fed.R.Civ.P. 15(c)(2). The Supreme Court rejected a broad reading of “conduct, transaction, or occurrence” in the context of post-conviction relief and explained an amended petition will not relate back “when it asserts a new ground for relief supported by facts that differ in both time and type from those [in] the original pleading.” Felix, 545 U.S. at 650. In other words, “relation back depends on the existence of a common ‘core of operative facts' uniting the original and newly asserted claims.” Id. at 658 (citations omitted).

         Here, not a single one of the untimely grounds for relief contained in Petitioner's February 22, 2016 supplement share a “core of operative fact” with a timely claim from his original petition. Because these grounds are neither ...

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